I agree with Robert on the HRA point, subject to this one qualification: UK

law is still in breach of Art 13 ECHR to the extent that it still affords no

remedy for breaches of the ECHR that occurred before the HRA came into

force, as in this case.

But on the main objection that has been raised, I think it's not so much a

case of 'duty of care decisions being stifled by reference to the

Convention' as Neil put it, but rather refusing to distort common law duty

of care decisions by reference to the Convention. If so, that means that the

existence of the Convention does not detract from the relevance of UK

decisions to other jurisdictions that are not subject to the Convention or

anything similar.

On Robert's other point, is the conflict point expressed in the paragraph

quoted really false? It seems to me that it does accurately reflect the

decision in D v East Berkshire (no duty of care owed by child welfare

agencies to suspected parents). Where it is important to ensure that a

statutory scheme is fully enforced or implemented for the protection of a

class of persons, it may be undesirable to impose duties of care that might

discourage such implementation or enforcement. The point is stronger than

that the statute affords no basis for a special duty of care: a duty of

care, however sourced, would conflict with the statute.

There is a case a little bit like Robert's hypothetical facts in Australia,

but it was decided on the basis of the defensive practice policy concern

(from Hill v Chief Constable of West Yorkshire) rather than the conflict

concern in D (but I think the two concerns are related): in NSW v Klein 2006

NSWCA 295, if I'm not mistaken the court held that police owed no duty of

care when attending an armed offenders call-out where a mentally disturbed

person was threatening himself and his family and was eventually shot by

police.

Hanna

**********

Hanna Wilberg LLB(Hons) BA (Otago) BCL MPhil (Oxford)

Lecturer, Faculty of Law

University of Auckland

Private Bag 92019, Auckland Mail Centre

Auckland 1142

Aotearoa New Zealand

Tel: +64 9 373 7599 ext 84232

Email: h.wilberg@auckland.ac.nz

Web: http://www.law.auckland.ac.nz/uoa/law/about/staff/hanna_wilberg.cfm

On 1/22/09 11:59 PM, "Robert Stevens" <robert.stevens@ucl.ac.uk> wrote:

>

>

> The common law is quite clear, there is no claim for 'pure' economic loss

> in Trent.

>

> Some of the reasoning is, however, unsatisfactory. To say, as Lord Scott does

>

> "[W]here action is taken by a State authority under statutory powers

> designed for the benefit or protection of a particular class of persons, a

> tortious duty of care will not be held to be owed by the State authority

> to others whose interests may be adversely affected by an exercise of the

> statutory power. The reason is that the imposition of such a duty would or

> might inhibit the exercise of the statutory powers and be potentially

> adverse to the interests of the class of persons the powers were designed

> to benefit or protect, thereby putting at risk the achievement of their

> statutory purpose."

>

> Cannot be quite right. If in exercising a statutory power or duty the

> agent of a State authority negligently kills someone, unless there is a

> privilege conferred by the legislation to behave in this way (very

> unlikely) the claim should succeed.

>

> The better view is that the duty being argued for in Trent is not one

> that, obviously, persons generally owe to the claimant. That being so the

> only possible source for this special duty on the public body was the

> legislation under which they acted, and as it imposed only a public duty

> with no correlative right in individuals adversely affected, the claim

> failed.

>

> As to the HRA point, this is something we have discussed before. What

> Trent demonstrates is the *reduced* significance of the European

> Convention of Human Rights 1950 for the common law of torts, following the

> passing of the Human Rights Act 1998. If these facts were to recur today,

> without the Act the UK would have been in violation of Article 13 of the

> ECHR: the need to have an adquate remedy before the domestic courts.

> Without the HRA, the courts would have  had to try and fashion a claim at

> common law in order to prevent such a violation. Following the passing of

> the HRA this is no longer necessary. (Article 13  is not one of the Rights

> covered by the HRA, for the reason that the HRA itself ensures compliance

> with Art 13).

>

> So "our law" is no longer in violation of the ECHR at all. The actions of

> Trent Strategic Health Authority constituted a violation of Art 1 (First

> Protocol) (peaceful enjoymernt of possessions) and the court order

> depriving them of a licence was a violation of Article 6 (right to a fair

> trial), but this would not be changed one way or the other by the result

> of the House of Lords decision in Trent. The common law didn't violate

> these articles. The Act means that the pressure to distort the common law

> is no longer there.

>

> As to the 1950 Convention itself, for myself I think it is a good thing

> that Turkey, Russia, the United Kingdom and Serbia are parties to the

> Convention. I don't think we could expect other States to sign up and not

> sign up ourselves.

> Rob

>

>

>> Although I regard the Human Rights Convention as pernicious and would

>> personally want to throw it out neck and crop from our law, we're stuck

>> with it. And in the light of this I must confess to sharing Neil's

>> bewilderment at Scott's approach. Essentially, he is deliberately making

>> our law non-Convention-compliant on the basis that it doesn't matter

>> because the plaintiff might now get some other remedy for having had his

>> rights trampled on by the State. Does anyone share my view that this is

>> no way to run a legal system outside Alice in Wonderland?

>>

>>

>> Andrew

>>

>>

>> -------- Original Message --------

>> Subject:  Negligence of Public Authority in House of Lords

>> Date:  Wed, 21 Jan 2009 23:05:17 +0000

>> From:  Neil Foster <Neil.Foster@newcastle.edu.au>

>> To:  obligations@uwo.ca <obligations@uwo.ca>

>>

>>

>>

>> Dear Colleagues;

>> Interested in what people think of the decision in /Trent Strategic

>> Health Authority (Respondents) v Jain and another (Appellants)/ [2009]

>> UKHL 4

>> http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090121/trent-1.h

>> tm

>> .

>> The Appellate Committee of the House of Lords unanimously holds that a

>> public authority which carelessly applied for, and obtained, an /ex

>> parte/ order closing down a nursing home run by the respondents

>> (resulting in a loss of the business despite the fact that a later

>> review showed that the immediate closure had been completely

>> unnecessary), owed no duty of care in negligence for the economic loss.

>> Two streams of authority are used to support the decision by Lord Scott,

>> who gives the main judgement. One, those cases rejecting a duty owed to

>> the "subjects of investigation" by statutory bodies charged with

>> protecting the interests of members of the public (while it is not

>> cited, /Sullivan v Moody/ in Australia is this type of case). Here the

>> powers to close down nursing homes were given for the purposes of

>> protection of the residents, not protection of the proprietors. (While

>> this claim was not based on an allegation of "breach of statutory duty",

>> there was a similar result in an Australian BSD claim in /Saitta v

>> Commonwealth* */[2003] VSC 346, where it was held that the duty of the

>> Commonwealth to pay benefits to nursing homes was one that was designed

>> for the benefit of the residents, not (as alleged in that case) the

>> benefit of one of the private contractors engaged to run the home.)

>> The second line of cases are those where one party involved in

>> litigation, or potential litigation, is said not to have a common law

>> duty of care to their adversary (or potential adversary?) Since the

>> statute gave a power to the authority to effectively "prosecute", these

>> cases no duty was owed. /Customs & Excise Commissioners v Barclays Bank

>> plc/ [2006] UKHL 28; [2007] 1 AC 181 is cited for this "litigation

>> adversarial immunity" proposition. I wonder whether this is a genuinely

>> valid principle, especially where the resources of a large government

>> department are on one side, versus a small business operator. Still, it

>> was used to support the no-duty finding here.

>> Another interesting aspect of the decision is the way the /Human Rights

>> Act/ is invoked. Most of their Lordships offer the view that if the

>> litigation had been commenced after 2 October 2000 that the plaintiffs

>> would have been able to recover damages under that Act for breach of a

>> Convention right. Lord Scott in particular develops this argument in

>> great detail. But the fact that there is a Convention right seems to be

>> used at [11] as a reason /not/ to develop the common law duty of care to

>> provide a remedy in a case of fairly clear injustice and abuse of power.

>> (UK colleagues can help me here- there seems to be a hint in para [19]

>> that if the Jains fail in the UK, they will still be able to approach

>> the ECHR in Strasbourg for a remedy in relation to the pre-2000 breach.

>> Is that right? If so then clearly the many things that are said by Lord

>> Scott about how the actions of the authority breached the Convention are

>> no doubt meant as "guidance" for the ECHR to award them some damages

>> against the UK government?)

>> I can see the arguments either way here on the duty issue. But for those

>> of us in non-Convention common law jurisdictions the guidance on duty of

>> care offered by the House of Lords must be taken with increasingly large

>> grains of salt if duty of care decisions are to be stifled by reference

>> to the Convention.

>> Regards

>> Neil F

>>

>>

>>

>>

>>

>>

>> Neil Foster

>> Senior Lecturer, LLB Program Convenor

>> Newcastle Law School

>> Faculty of Business & Law

>> MC158, McMullin Building

>> University of Newcastle

>> Callaghan NSW 2308

>> AUSTRALIA

>> ph 02 4921 7430

>> fax 02 4921 6931

>>

>> --

>> Andrew M Tettenborn

>> Bracton Professor of Law, University of Exeter

>>

>>

>>

>> Snailmail:

>>

>> Law School

>> University of Exeter

>> Rennes Drive

>> Exeter EX4 4RJ

>> England

>>

>>

>> Phone:

>>

>> Tel:             01392-263189 (int +44-1392-263189)

>> Fax:             01392-263196 (int +44-1392-263196)

>> Cellphone:       07870-130528 (int +44-7870-130528)

>>

>>

>>

>> LAWYER, n.

>> One skilled in circumvention of the law. (Ambrose Bierce, 1906).

>>

>>

>>

>