The Liability of Public Authorities for Negligence - Essay Example

Discuss whether human rights considerations now assist a claimant who intends to sue a public body such as the police or a local ity for negligence. The cases cited relate to the liability of public authorities for negligence in the discharge of their statutory duties owed to the pubic. Almost all of them have rejected the claims of the plaintiffs at some stage or other i.e at the lower court level or at the level of House of Lords. In the case X v Bedfordshire, it is the failure of the neglect by the County Council for five years without intervening though it was fully aware of the abuse and neglect, the children were suffering. When the decision of the House of Lords in X v Bedfordshire County council (1995) was taken to European Court of Human Rights by the Official Solicitor on behalf of the Children of the Bedfordshire case for review of the legal principles established therein, the legal scenario had changed basically because of the Human Rights Act 1998 had been already brought into force. Ever since, accountability for the local authority has increased. The House of Lords had opined that the children could not call the local authorities to account since the failure on the part of the authorities to protect the children was not a justiciable matter under common law. In view of the position in common law that it could not impose a duty on them, it was justified that public authorities could not be sued for negligence and breach of their statutory duties, as a public policy. Even if the House of Lords had allowed the children’s case to stand, it was doubtful they would have been able to prove their negligence. But the House of Lords’ rejection of the children’s claims altogether, deprived them of chance even to try. Sir Thomas Bingham MR has argued in the court of appeal “that wrongs should be remedied”. (Fortin 2003, p505-6) But this was ignored by the House of Lords giving an impression that child protection process had become an unaccountable factor. So this gap was filled by the combined effect of Strasbourg case law and the Human Rights Act 1998 due to provision in the latter for domestic remedies for violation of children’s human rights. Due to the subsequent rejection of the principle on the ground of pubic authorities’ immunity to liability in negligence, the scope of Bedfordshire decision has been considerably reduced. The domestic courts are even now reluctant to allow negligence claims for fear of violating article 6 of the ECHR. The domestic courts strike out claims for negligence in the very clearest case where the claimant lack in resources to establish the case against the authority concerned. (Fortin, 2003, p 505-506) In spite of the trend towards making the public authority more accountable, recently the House of Lords reversed the lower courts’ decisions indicting the public authority. (Van Colle v.., 2008) This case was not that of neglecting duties towards children’s safety and wellbeing but neglecting in protection of the deceased who was shot dead by the criminal after series of threats and attacks spread over a period of time which the public authorities had been notified of. The deceased’s parents claimed damages from under section 6 and 7 of the Human Rights Act 1998 on the ground that that the police had failed to protect their son under article 2 of the European Convention on Human Rights for right to life. The relief given by the lower courts, was short lived. This was being denied already as public authority not being liable for tort negligence for reasons of public policy. However, the House of Lords recognized the liability of the State towards compensating its citizens for failure to protect them from dangerous criminals as had been held by the Strasbourg Court in Osman v U.K.(1998) The Hose of Lords spared the public authority apparently due to the distributional justice accessible to the victims of violence by receiving compensation from Criminal Injuries Compensation Commission.(Spencer,2009) Yet another case of Mitchell and another v. Glasgow CC [2009] has again demonstrated that court would not give into public claims to indict public authority. Here, the local authority who was a social landlord was sought to be indicted for its failure to protect its tenant from his neighbour who killed him This case was instituted by the deceased tenant’s representative, for the landlord Glass County Council’s failure in their duty of care towards its hapless tenant by evicting the erring tenant who indulged in violence. House of Lords held that there was no duty of care by the landlord who was the local authority. They opined that placing the local authority which was not even an enforcement authority like police would pose practical difficulties. Since the landlord authority had not assumed direct responsibility for the safety of the tenant, it could not be held liable for tort negligence. (Etinger, 2009) Conclusion While the House of Lords decisions have been consistently giving immunity to public authority from liability for tort negligence for the reasons of public policy, the ECHR’s response to the appeals therefrom has been mixed. The ECHR’s decision in Osman v United Kingdom, proved to be turning point in that it was held that police’s failure to effectively handle various incidents that resulted in homicide was a breach of human right guaranteed under the European Convention on human Rights. In X v Bedfordshire also, the ECHR undermined the immunity in favour of social workers. The Human Rights Act 1998 expects judiciary to make tort law compatible with the rights guaranteed under the ECHR convention. The judiciary seems to find it difficult to come to terms with the ground realities compelled by the Human Rights Convention, as the judges are considered the bearers of common law culture. What is actually needed is the change of the mindset by the English lawyer. The judges are unable to come out of it because the common law is inadequately systematised, improperly theorized and lacking in the right consciousness as pointed out by Mullender (2003) The blanket immunity accorded to public authorities has been held to be a breach of article 6 of the ECHR by the ECHR court’s review of the case of Osman v Ferguson wherein the teacher who shot dead his pupil and his father which could have been prevented by the public authority through effective vigilance. It is therefore felt that English courts must stop giving blanket immunity without balancing the interest in giving such immunity and the interference with the citizens’ human rights. In view of the foregoing, reluctance of the English courts has been still a barrier for the litigants to assert their rights to sue the police, any public or local authority for negligence in torts and every time they have to approach the supra national body of the ECHR for remedies under the Human Rights Convention. Because of the indifferent attitude of the judiciary at the national level, it cannot be said that litigants are comfortable with the assertion of their human rights for proceeding against public authorities for tort negligence. When the English courts are yet to assume ECHR decision in this respect as precedents, the litigants cannot be said to have easy access to justice. It may not be out of place to mention that it is quite understandable that public authorities should be protected when some thing goes amiss during the discharge of their duties and not when something adverse happens owing to their negligence, though negligence can be deliberate or unavoidable due to their helplessness or the practical situations. The haplessness or impracticalities may be due to lack of infrastructure or sufficient authority at their disposal. And some authors have said that wordings of the enactments such as Children Act were made purposefully to avoid such litigations implicating the authorities. (Fortin, 2003) Works cited Ettinger Colin, Case comment on Mitchell v Glasgow, J.P.I Law, 2009, 3, C115-118 Fortin Jane, 2003, Children’s Rights and the Developing Law, Cambridge University Press, p 505-506 Mitchell and another v. Glasgow CC [2009] UKHL 11 Mullender Richard, 2003, Tort, Human Rights, and common Law Culture, Oxford Journal of Legal Studies, 23(2) P 301-318 Osman v U.K.(1998) 29 E.H.R.R. Spencer J.R. 2009, Suing The Police For Negligence: Orthodoxy Restored, The Cambridge Law Journal, 68(5) p25-31 TP and KM v United Kingdom [2001] 2 FLR 549 and Z v United Kingdom [2001] 2 FLR 612 X (minors) v Bedfordshire County council; M (a minor) v Newham Borough Council; E (a minor) v Dorset County Council (1995) 3 All ER 353 Van Colle v Chief Constable of Herefordshire Police. (2008) CA, C.L.J. 15 Read More