Duty of care of public authorities in England, liability by omission, and Article 2 of the Human Rights Act

Abstract

The negligence of public officials, who make omissions, can lead to liability under English law under tortious principles. The courts in England have been reluctant to hold public authorities liable for breach of a duty of care and this includes the police, local Councils and hospital trusts. They are generally not liable on the grounds of omission, for breach of a duty of care and causation has, until now, has been narrowly interpreted by the courts. The duty of care has to satisfy an onerous test when there is an omission by the police and in Michael v Chief Constable of South Wales Police[2012] EWCA Civ 981 the Court of Appeal denied liability where there was prima facie negligence for a breach of duty towards a pre identified victim. The differentiation between the recognized victim and the stranger who is injured or suffers a fatality needs to be distinguished both in negligence, and under Article 2, Right to Life, in order to establish the extent of liability of public bodies. The question in this paper is whether the breach of a duty of care by public authorities is construed with more deference by the courts, and if the judges are more likely to construe liability under Article 2 of the Human Rights Act, when there is death has been caused by the negligence of the state.