Following Lord Young’s report, personal injury funding is likely to be reduced and, as a consequence, claims under the HRA against emergency services may become more frequent, according to Edward Bishop who recently spoke on the topic at the Personal Injury Bar Association Winter Conference.
One advantage of the HRA is that, in contrast to the common law, which adopts different approaches to different emergency services as regards the question of whether a duty is owed, the HRA treats the question more consistently. Section 6 of the HRA provides:
It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
A number of convention rights may be relevant to actions against emergency services, including:
a) Article 2: Right to Life;
b) Article 3: Prohibition of Torture, Inhuman and Degrading Treatment;
c) Article 5: Right to Liberty and Security; and
d) Article 8: Right to Respect for Private and Family Life.
The extent of the duties owed under the HRA was explained in Osman v UK ((2000) 29 EHRR 245). At paragraph 116 the Court held:
bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources […] it must be established […] that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual […] from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
However, as Edward highlighted, although the HRA provides a more consistent approach, it may also pose a number of difficulties for claimants. These include the following:
a) The Osman test is more difficult to satisfy than “ordinary” negligence, as explained by Baroness Hale in Savage v South Essex Partnership NHS Foundation Trust ( UKHL 74 at paragraph 97);
b) There is no liability under the HRA for clinical negligence (Powell v United Kingdom (2000) 30 EHRR CD 362);
c) The claimant must be someone who “is (or would be) a victim of the unlawful act” (section 7(1) of the HRA); and
d) The limitation period for HRA claims is one year (section 7(5) of the HRA). Although this is likely to be extendable pursuant to section 33 of the Limitation Act 1980.