Title: CAUSATION AND RISK IN NEGLIGENCE AND HUMAN RIGHTS LAW
Abstract: The UK Supreme Court noted in Smith v Chief Constable of Sussex Police that the approach to causation in claims based on Article 2 of the European Convention on Human Rights (ECHR) is “looser” than in negligence. While the but-for test is generally applied in negligence, in Article 2 claims “it appears sufficient generally to establish merely that [the claimant] lost a substantial chance” of avoiding harm. The English courts have not always been comfortable with this divergence. In Re E. (A Child) Lady Hale stated that she was “troubled by the rejection of the ‘but for’ test” by the European Court of Human Rights (ECtHR). In part this discomfort seems attributable to a lack of detailed exposition as to how the approaches to causation differ in negligence and human rights law. The lack of clarity as to what the “looser” approach consists of is unsatisfactory. Although the reference to causation in Smith was a relatively minor observation in the wider decision not to develop the duty of care owed by the police in negligence to a victim of crime, we cannot appreciate whether the difference in approach is justified without first understanding what the difference actually is. In response, one aim of this paper is to draw together key decisions on causation in the ECHR to identify what the “looser” approach entails and how it differs from the approach in negligence.
Publication Year: 2020
Publication Date: 2020-02-17
Language: en
Type: article
Indexed In: ['crossref']
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Cited By Count: 1
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