Law Of Torts Negligence Essay

1506 WordsMar 11, 20127 Pages
Law of Tort – Non-Assessed Essay Passed by Parliament in 1998, the Humans Right Act was enacted to ‘give further effect to rights and freedoms guaranteed under the European Convention on Human Rights,’ setting out the basic rights which could be expected by human beings as being minimal rights in a civilised society. However, in relation to the Law of Tort in negligence, it has become apparent that the Humans Right Act has been restricted in application, consequently meaning the full potential of the Act is not being met. In the tort of negligence, where a court finds there to be a breach of a duty that was owed by the defendant to the claimant, damages will be awarded. Establishing whether a duty exists has been problematic, but, through the development of common law from Donohugh v Stevenson [1932] which established the ‘neighbour principle,’ the courts now adopt a satisfactory ‘three stage test,’ following the case of Caparo. The current test employs three criteria which are to be taken into account: reasonable foresight, proximity, and ‘fair, just and reasonable;’ under the two latter criteria, matters of policy are to be raised, which seemingly have considerable influence. In light of policy issues, fears that to impose a duty would open the ‘floodgates’ and expose the defendant to an indeterminate liability, as well as preventing the defendant from doing his job properly, have led to particular persons enjoying an immunity from liability. It is precisely because of this that the Human Rights Act has been restricted in meeting its intended aims in the tort of negligence. The Human Rights Act only allows an individual to bring actions against a public authority - section 6(1) states: ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right.’ For the purposes of the Act, public authority is to include ‘a court or

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