What impact will the Human Rights Act (1998) have upon public policy immunity?

Essay by thedodgeyoneUniversity, Bachelor'sB, March 2004

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As the Human Rights Act 1998 (HRA) intends to ensure that the rights and freedoms of individuals are safeguarded, it is expectable that it would have a profound impact on many areas of law which deal with these rights and civil liberties. Among the affected fields, public policy immunity stands out as a theme that is controversial even without the impact of the HRA, and one that has now become doubly so. Public policy immunity is a traditional policy under which workers who perform public duties are exempt from prosecution for negligence on grounds of policy reasons.

A large part of tort law is concerned with the law of negligence, and in particular establishing duties of care. Legal negligence is attaching liability to persons who by either carelessness or intentional behaviour cause damage, and have a duty to pay compensation to their victim. Unfortunately, policy considerations are often favoured over legal principles.

This lack of a firm general principle means that some groups or types of persons can escape liability. The House of Lords recently developed the Caparo test in Caparo v Dickman for establishing grounds for liability for negligence. They held that the first step required for a duty of care to exist is a reasonable foreseeability of harm. Secondly, a relationship of proximity must be established, in legal terms as well as physical. Thirdly, the court must feel that it is fair, just and reasonable to impose a duty of care in the circumstances that are specific to that case.

These requirements have greatly limited the types and categories of people who can be held liable for negligence, leaving many victims uncompensated even though the provision of compensation is the key purpose behind the law of negligence. Those who are held to be immune to a duty of...