Human Rights Law and Tort Law in Duty of Care

Tort law is a branch of law generally classified as common law. The word tort itself refers to a wrong, specifically a civil wrong, which indicates a certain specific breach of duty owned to the plaintiff by the defendant as defined by law. The said breach of duty arises in tort law, on specific situations such as; medical malpractice, the malicious institution of legal proceedings, as in the case of an unlawful arrest and detainment, motor car accidents, and many other situations (Introduction to the Law of Torts).

Tort law itself, is a broad subject touching on virtually every aspect of individual and personal rights, that are in effect, protected in law. These rights and interests which are protected by tort law include but not necessarily limited to; personal safety or autonomy, individual property the due process of the law, financial interest and individual reputation. It is worth for the reader to note that in tort law, focus is most definitely and ultimately directed at determining whether or not one party is obliged to compensate another in civil liability (Introduction to the Law of Torts). It is also of equal importance that it be noted that even so, a factor of equal importance is for the court to also determine whether or not it is morally justifiable to impose civil liability on part of the defendant, and or to hold them liable for their conduct.

This principle and fundamental understanding of tort law gives way to the understanding of the conduct of the defendant with reference to the consequence he/she is liable for in tort. Although Tort law is as mentioned, a broad subject, we will nevertheless, only focus on one of its most specific and controversial grounds (negligence). In tort liability, negligence would generally be defined as carelessness on part of the defendant (Introduction to the law of Tort). In effect, the main purpose of this paper will be to highlight how human rights law influences the general understanding of tort law in duty of care liability, but more so, how it has over the years, influenced and impacted on English law, and it’s inevitable, but desirable replication in Hong Kong.

Fundamental Principles of Negligence and the Duty of Care

It is a common (but mistaken) view that every liability in tort should be based on, or be seen to arise from negligence on part of the defendant. Mind you, negligence as a branch of tort law is in many circumstances associated with the defendants’ conduct, and not necessarily their intent. In order for a civil court to determine that a defendant is liable in tort on grounds of negligence and or the duty of care, certain fundamental requisites must be established for purposes of substantiating the plaintiffs’ claim to tort. The court therefore must establish that the defendant indeed does owe the plaintiff duty of care, that a breach of that specifically mentioned duty of care has occurred on part of the defendant, that there must indeed be some sort of damage to the plaintiff that is not too isolated in terms of proximity, and finally, that this said damage, must arise from the breach of duty on part of the defendant (Introduction to Negligence).

Duty of care may arise on many occasions such as; where the courts establish that there is indeed a direct or indirect careless communication by the defendant to the plaintiff, or where a special relationship between a third party and the defendant exposed the defendant to liability. In the middle decades of the previous century, one landmark ruling by Lord Atkins in 1932 resulted in an acclaimed principle (albeit controversial), which came to be known as the neighbor principle. It was determined by Lord Atkins in the case of Donoghue v Stevenson, that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor” (Introduction to the law of Tort). Although this particular principle has been disputed in modern times as non-influential on the development of tort law, it has nonetheless, been used many times to solve disputes by third parties, which need not necessary involve physical damage, but also economic damage resulting from the proximity of the defendant to the plaintiff, in discharging such service that might have considerable effect on the plaintiff.

Duty of Care in English Law (the Donoghue v Stevenson case (1932) AC 562)

Stanton (2012) mentions that the only reason why duty of care is one of the most important of torts in modern law is probably due to the subsequent success of Lord Atkins’ landmark ruling in the Donoghue v Stevenson case of 1932. Why is this? Stanton (2012), explains that this is because of the fact that tort law is centrally based on negligence. In the Donoghue case, the factors substantiating a claim by the plaintiff to tort by the defendant were clearly provided for by Lord Atkins.

As a matter of fact, it is important at this stage to realize that as stated before in the introduction part of this paper, duty of care in negligence arising in tort liability by a defendant must adhere to all the fundamental principles encompassing negligence in general tort law. The plaintiff had suffered according to Atkins, damage as a result of the manufacture and as such, the manufacture of the said product was liable in tort, to compensate the plaintiff (Introduction to the law of Tort). The plaintiff’s case was found to be compatible with the requirements and requisites of tort law, and as such, credible enough to warrant tort liability on part of the defendant.

Hedley Byrne v Heller (1964)

The case, according to Lord Reid, raised question as to whether or not a plaintiff may or may not recover damages resulting from the reliance of an innocent, yet equally negligent misrepresentation of information. In effect, it was determined that in as much as the case raised certain specific questions of law, a duty of care was established on part of the defendants (who were bankers) to the plaintiffs (who in this case were advertising agents). The defendant was found to have communicated carelessly and negligently to the plaintiff, and the plaintiff had innocently relined on that misrepresented communication, resulting in economic damages. The underlying factor in this case was its reference to the Donoghue case whereby Lord Reid explained that negligent acts should be set apart from negligent words.

Yuen Ku Yeu v Attorney-General of Hong Kong (1988) AC 175

This case involved four investors who were residents of Hon Kong, and had made substantial investment in a deposit taking company, which went into liquidation. Consequently, and due to this insolvency, the investors lost all their money and as such, filed for damages on grounds of negligence on part of the Commissioner of Oaths, whom they argued would have been in a position to advice the members of the public accordingly, on whether or not it was safe to deposit money with the said company (Introduction to Negligence). The case follows and adheres to the general principals of tort law 1.e; it establishes on part of the Commissioner of Oaths, whether or not he owned duty to Hong Kong members of public. In this case too, reference was made to the Lord Atkins’ neighbor principle, where it was found that no specific relationship existed between the commissioner of oaths, and the investors, or the company. Furthermore, the proximity of either party in relation to the damages was out of the question too.

Luen Hing Fat Coating& Finishing Factory Ltd v Waan Chuen Ming (2011) HKCFA 4

The factory operator in this case engaged an independent contractor to repair a unit of its machine that had been rendered non-operational. The independent contractor came with its employer, the plaintiff in this case. In order to repair the unit, the contractor and his employee, used two pallet jacks provided by the factory operator for such use. While attempting to reinstall the unit, it fell on the employer, thereby crushing both his legs. As a result, the employer filed action for both the independent contractor and the factory operator. The independent contractor was found to owe duty of care to the employer in providing a safe system of work, which in effect, had been breached (Introduction to Negligence). Additionally, the factory operator was also held liable in tort to the plaintiff on basis of negligence and breach of statutory duties.

Human Rights Law and the Duty of Care

It is without a doubt that human rights, its processes and applications, have over the past years continued to influence the perception and due process of tort law (Stanton, 2012). It is probably of importance to classify the definition of human rights in such a context as to suite the explanation herein provided with reference to tort law. Rights such as civil rights, and equality before the law, the right to an education and to employment, comprise branches where tort law may be applicable, which creates substantial friction and conflict between tort law, and human rights law. So what exactly is the relationship between tort law and human rights law? A good explanation covering this question includes the fact that both systems of law endeavor to promote individual well-being. In tort law, and specifically duty of care in the case of negligence, the main objective of tortuous liability is in the first place, to prevent harm, and in case this fails, ensure that the damage resulting from such harm due to a breach of duty owned to a particular party is effectively compensated.

With regard to human rights law, the main objective is to ensure that all rights and freedoms entitled to civilians are protected and adhered to, whether by a court of law, or otherwise. This quandary is perhaps what warrants one fundamental principle of tortuous claim on the basis of negligence-whereby the court must determine whether or not the defendant actually intended to whether deliberately or not, cause the said harm and or damage to the plaintiff. Additionally, the defendant’s morality and conduct must be held in blame upon such determination. This, with regard to human rights law, will be found to protect one certain specific right; equality of all, before the law, and the due process of the law.

In the United Kingdom, the significance of the fundamentals upheld by the European Court of Human Rights on negligence and general tort law has in recent times, indicated that civil law is jointly intertwined with human rights law, in determining the existence of tortuous liability whether in negligence or otherwise, on part of the defendant. One good example of the relationship between human rights law and civil law with reference to tort liability in negligence is the Smith case of 2008. The police who were the defendants in this case were being accused of not protecting the plaintiff from her former lover even after she had complained of such threat. She was in effect, claiming damages on the basis of negligence at common law on part of the police. The courts ruled that no tort liability existed on part of the defendant at common law because of the fact that the police could not possibly be held responsible for every crime that happened, and also because to hold liable the police, would in effect, interfere with the functionality of the police in suppressing public crime, which impacted on the right to protection in law of other civilians.

Conclusion

Both tort law and human rights law as stated earlier, do agree on certain aspects, and conflict according to certain circumstances innate in a case. The application of tort law when the subject of human rights is allotted always appears to be a matter for further research. This is because the courts in determining that a defendant is liable in tort to a plaintiff, my at times violate the defendant’s rights to a fair trial and or arise in an inequality which the European Court on Human Rights would justly grant as a basis for an appeal. The neighbor principle popularized by Lord Atkins is also a subject of great controversy being that its application in modern times with reference to human rights is seen by many as a distortion of the fundamentals of tort law. The Hong Kong cases also indicate that the courts are also changing their perception of tort law, and are basing it on fundamental human rights in order to avoid conflict of the two.