Tort Essay - Grade: 2:2 PDF

Preview

Summary

Tort Law Essay...

Description

Table of cases Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 Hertfordshire Police v Van Colle [2008] UKHL 50 Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 Jones v Kaney[2011] UKSC 13 Kent v Griffiths[2000] 2 WLR 1158 Michael v Chief Constable of South Wales [2015] UKSC 2 Osman v UK [1998] EHRR 101 Rush v Police Service of Northern Ireland and The Secretary of State for Northern Ireland [2011] NIQB 28 Smith v Chief Constable of Sussex Police [2008] UKHL 50 Somerset v Stewart [1772] 98 ER 499 Swinney v Chief Constable of Northumbria [1997] QB 464

The quote of Lord Toulson outlines two important aspects considered by the Courts while deciding if a duty of care is owed by the defendant to the claimant in novel cases – one being ‘development by incremental process’, and the other being ‘policy considerations’. Both of these aspects were crucial in determining the fate of the appeal in Michael v Chief Constable of South Wales1. The claimant, estate of Ms Michael, sued Chief Constable of South Wales for negligence at common law and a breach of the rights enshrined in Article 2 of European Charter of Human Rights (ECHR), under the provisions of the Human Rights Act 1998. The police sought a strike out or summary judgment. The Court of Appeal decided that summary judgement should be given on the common law claim. The claim under Article 2 of ECHR was allowed to proceed to trial. The claimant appealed on the decision of summary judgment, while the police cross-appealed on the fact that any claims should proceed. In Supreme Court, by majority decision of 5-2 claimant’s appeal was dismissed, and unanimously the police’s cross-appeal was dismissed. Lord Toulson presented his judgment, in which he explained why the police should not owe a duty of care in that case. His Lordship constructed several arguments against recognising duty of care in this case: lack of duty as recognised in Hill v Chief Constable of West Yorkshire2 (rephrased by Brooks v Commissioner of Police of the Metropolis3, in accordance with Osman v UK4); the observation that omissions, especially those resulting in third party causing the damage, are usually not subject to duty of care; and finally, arguments pertaining to public policy. With the facts presented in that manner it would seem that quote of Lord Toulson is perfectly correct – the judgment in Michael was based on careful consideration of ‘how far the law has gone’ and taking into account public policy – mainly the worries that if a precedent of police being held liable is introduced, resources will be diverted away from the public duty of emergency services. It should be noted that there are arguments against Lord Toulson’s claim. While historically law of negligence has been slowly developing and adapting over time, there have been some breakthroughs. The most important one would be the ratification of the ECHR by the UK and passing of the Human Rights Act 1998. Some irony can be found in the fact that without these events, Michael case may have never been heard in a court – the Hill principle, as originally expressed by Lord Keith, would make the police immune ‘from that kind of action’5. This used to be the case until Osman v UK, where the European Court of Human Rights claimed that such ‘blanket immunity’ contravened Article 6 of ECHR. Lord Keith’s judgement was thus interpreted in a different way in Brooks – his statement is now understood as ‘absence of duty of care’6. While in Osman liability has not been extended, it was a big change in the law of negligence – especially when compounded with the judgment of Lord Steyn in Brooks, agreed on in Hertfordshire

1

[2015] UKSC 2 [1988] 2 WLR 1049 3 [2005] UKHL 24 4 [1998] EHRR 101 5 Hill v Chief Constable of West Yorkshire [1989] AC 53 6 Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, at 27 by Lord Steyn 2

Police v Van Colle; Smith v Chief Constable of Sussex Police7 and Rush v Police Service of Northern Ireland and The Secretary of State for Northern Ireland8 - in which His Lordship stated that: ‘It is unnecessary [...] to try to imagine cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the principle in Hill’s case. It would be unwise to try to predict accurately what unusual cases could conceivably arise. I certainly do not say that they could not arise.’9 This suggests that the courts are willing to entertain the idea that the police could be in fact be found to owe duty of care to victims of crime, based only on legal reasoning. In his speech Lord Toulson also stresses the importance of public policy and internal coherence of the law. It could, however, be argued that the judgment fails to fully take into account these two aspects. To begin with, the main consideration has been given to the police (and other emergency services) and the burden that may be put onto them due to imposition of duty of care. Worries that this may result in unnecessary spending due to litigation and ‘defensive practices’ have been raised by judges in other cases. These arguments have been however found to have little factual evidence to support them – as stated by Lord Kerr in his dissenting judgment 10. Additionally, little thought was given to the consideration of remedying wrongs done to Ms Michael’s family – the only damages they may seek are to be provided by section 8 of Human Rights Act. This would seem to stand against Latin maxim “Fiat justitia ruat caelum”, introduced into English law in Somerset v Stewart11, and against Lord Dyson’s words in Jones v Kaney12: ‘The general rule that where there is a wrong there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a wrong should always be regarded as exceptional.’13 Another important aspect to be considered is the coherence of negligence law mentioned by Lord Toulson. It is worth noting that in some cases emergency services have been found to owe a duty of care – like in Kent v Griffiths14. The case could be said to be analogous to Michael – the necessary resources have been available, the threat imminent and identified. Lord Woolf MR claimed in his judgment in Kent that ‘The acceptance of the call in this case established the duty of care’15 – this notion was however rejected in Michael. This would suggest that little consideration is given to coherence in tort law – why should one emergency service be held liable for failure to protect life due to omission, while the other is not? One counterargument is that in Michael case, the police’s omission resulted in a third party being able to cause the damage. This could, however, be argued to fall within the judgment of Dorset

7

[2008] UKHL 50 [2011] NIQB 28 9 Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, at 34 by Lord Steyn 10 Michael v Chief Constable of South Wales [2015] UKSC 2, at 184 11 [1772] 98 ER 499 12 [2011] UKSC 13 13 Ibid. at para. 113 14 [2000] 2 WLR 1158 15 Ibid. at para 49 8

Yacht Co Ltd v Home Office16 - it is however noted by Lord Toulson that the murder of Ms Michael was not held in police custody – but the potential criminal was clearly identified by the victim, possibly allowing for recognition of sufficient proximity between him and the police. Another argument in favour of recognising duty of care in Michael would be the fact that the police arguably had ‘assumed responsibility’ over the victim. Quote of Lord Woolf could be applied here, as well as the judgment from Swinney v Chief Constable of Northumbria17 - in which it was found that the police assumed responsibility over an informant, and they were held liable for harm caused by an unidentified third party – surely then they should be held liable in cases where an identified person causes the harm. It could be thus said that Lord Toulson’s words are only partially correct – while incremental development of the law can be observed, some major changes can, and do, occur. What is more, tort law in some cases (especially emergency services) is everything but coherent – proving a difficult field to manoeuvre for potential victims. Lastly, while public policy definitely is taken into consideration, it mainly focuses on arguments ‘against’ rather than ‘in favour’ of finding a new duty, even if imposition of it could be considered ‘fair, just and reasonable’.

16 17

[1970] AC 1004 [1997] QB 464...