Is there a Duty to Prevent Harm in Tort? A Common Law Perspective
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Paula Giliker
Abstract
In this paper, I will examine the extent to which the common law of tort in England and Wales imposes a duty to prevent harm on public authorities and private individuals. As will be seen, the starting point for the common law is that such liability should, in both cases, be regarded as exceptional. This must, however, be weighed against duties to prevent harm that arise under the torts of negligence and breach of statutory duty. Public authorities may also face claims that their failure to prevent harm is in breach of ECHR arts 2 or 3. While the law is complex, this paper identifies three key arguments that explain the current legal position at common law, namely that: (i) tort law should treat private and public parties alike: (ii) human rights claims should be treated as distinct from private law claims and (iii) libertarian concerns signify that a duty to prevent harm should be exceptional and needs to be justified. While these arguments provide both an explanation of and a justification for the current law, this article questions to what extent the treatment of public authority liability may be regarded as unduly harsh on vulnerable claimants.
Note
This article is based on a paper presented at a Special Session of the 20th Annual Conference on European Tort Law in 2021. The author would like to thank attendees for their questions.
© 2021 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Frontmatter
- The Duty to Prevent Harm in Challenging Times
- Is there a Duty to Prevent Harm in Tort? A Common Law Perspective
- Liability for Not Preventing Harm in France
- The State’s Duty to Protect the Right to Life in the Context of Present Crises
- Book Review
- J-S Borghetti/S Whittaker (eds), French Civil Liability in Comparative Perspective (Hart 2019). 521 pp. ISBN 978-1-5099-2727-2. £ 90.00 (hardback).
- DA van der Kooij, Relativiteit, causaliteit en toerekening van schade [Scope of Duty, Causation and Remoteness] (Deventer, Wolters Kluwer 2019). 591 pp. ISBN 978 90 13 15542 6
Articles in the same Issue
- Frontmatter
- Frontmatter
- The Duty to Prevent Harm in Challenging Times
- Is there a Duty to Prevent Harm in Tort? A Common Law Perspective
- Liability for Not Preventing Harm in France
- The State’s Duty to Protect the Right to Life in the Context of Present Crises
- Book Review
- J-S Borghetti/S Whittaker (eds), French Civil Liability in Comparative Perspective (Hart 2019). 521 pp. ISBN 978-1-5099-2727-2. £ 90.00 (hardback).
- DA van der Kooij, Relativiteit, causaliteit en toerekening van schade [Scope of Duty, Causation and Remoteness] (Deventer, Wolters Kluwer 2019). 591 pp. ISBN 978 90 13 15542 6
