Lexploria

Information Note on the Court’s case-law 34

September 2001

Clunis v. the United Kingdom (dec.) - 45049/98

Decision 11.9.2001 [Section III]

Article 6

Civil proceedings

Article 6-1

Access to court

Civil claim barred on public policy grounds without any examination of merits of claim: inadmissible

The applicant has a history of serious psychiatric illness. In May 1992 he attacked a fellow resident at the mental hospital where he had been placed. In September 1992 he was discharged from hospital and after-care arrangements were made with Friern Hospital, then under the management and control of the local Health Authority. The applicant subsequently failed to atte nd appointments made with S., a doctor at the hospital. In the meantime, official documents had been addressed to the hospital indicating that the Mental Health Act required that after-care be arranged for the applicant. S. was later informed of the applic ant’s aggressive tendencies and of the fact that he had been off medication for several weeks. In November 1992 the applicant managed to leave his home unnoticed in the course of an assessment visit. No further assessment visit was planned, S. intending to see him informally. Another appointment was made with S., this time at the applicant’s initiative, but he again failed to attend. S. took no further steps from that stage. In December 1992 the police reported that the applicant had been seen “waving screw drivers and knives and talking about devils”. S. advised that an assessment be made as soon as possible and opened lengthy discussions with the competent authorities to determine which hospital was responsible for him - it appeared that he remained under t he care of Friern Hospital. The same day, the applicant killed a stranger at a tube station without any reason. He was convicted of manslaughter by reason of diminished responsibility and ordered to be detained under the Mental Health Act without limit in time. The way his treatment and care had been handled by the hospital and hence the local health authority was seriously criticised in a subsequent official report. The applicant brought a negligence action against the responsible authorities. These author ities contested it on the ground that the applicant could not rely on his own criminal act to show that their duty of care had been breached, according to the public policy principle ex turpi causa non oritur actio . The High Court rejected the argument. Ho wever, the Court of Appeal found, on the local authority’s appeal, that the applicant’s case at common law was barred on public policy grounds. The court further held that Parliament in enacting the after-care provisions in the Mental Health Act had not in tended that a local authority should be exposed to liability in the event of its failure to discharge its statutory after-care functions properly. Moreover, the court found that it would not be just and reasonable in the circumstances to superimpose on the local authority’s statutory duty a common law duty of care which would be owed to the applicant with respect to the performance of its statutory duties to provide after-care.

Inadmissible under Article 6 § 1: (i) The applicant contended before the domesti c courts that he had a right to recover damages from the Health Authority on account of the harm he suffered as a result of its negligence. He based his claims, derived from the tort of negligence, on breach of a common law duty of care and a statutory dut y owed to him. It was assumed, for the purpose of the proceedings before the Court, that the domestic courts had been asked to rule on a serious and genuine dispute about the existence and scope in domestic law of a right, asserted by the applicant, to sue the authority on the grounds of negligence, and that, at the material time, they had not definitely settled the issues as to whether, firstly, the ex turpi causa rule could be invoked in a tort action and, secondly, whether a civil action lay against a lo cal authority in respect of its alleged negligence in the performance of its statutory after-care duties. Article 6 was therefore applicable.

(ii) The applicant had a full opportunity to state his case before the High Court and contest the authority's grou nds of appeal before the Court of Appeal. Moreover, the Court of Appeal gave careful consideration to the question of whether the applicant had a sustainable action in domestic law and had a close regard to the case-law precedents drawn both from the law o f negligence and the law of contract. At no stage did the Court of Appeal rely on a doctrine of immunity to shield the authority from the consequences of a civil action against it. The Court of Appeal gave clear reasons for its decision to depart from the ruling of the High Court judge. The Court of Appeal’s decision was in accordance with the development of the common law through judicial decisions in the area of tortious liability and its adaptation to new situations and did not confer an immunity on the local authority. As regards the Court of Appeal’s approach to the applicant’s claim under the Mental Health Act, the court found that Parliament did not intend to confer on individuals a cause of action against the local authority in the event of failure t o comply with the requirements of that provision. As to whether a common law duty of care operated alongside the statutory duties imposed under the Mental Health Act, the Court of Appeal balanced carefully the policy reasons for and against the imposition of liability in the circumstances of the case. It analysed the applicant’s claims from the standpoint of whether it would be just and reasonable to allow them to proceed to a determination on the merits. In sum, the applicant’s claims under this head were properly and fairly examined in the light of the applicable domestic legal principles governing the law of negligence as applied to the exercise by the defendant local authority of its statutory powers. In conclusion, the applicant was able to test the arg uability of his claims under domestic law. Furthermore, there is no reason to consider the striking out procedure which rules on the existence of sustainable causes of action as per se offending the principle of access to court. In such a procedure, the pl aintiff is generally able to submit to the court the arguments supporting his or her claims on the law and the court will rule on those issues at the conclusion of an adversarial procedure. The applicant, by asking the Court to find that it would have been fair, just and reasonable to allow a civil action to lie against the local authority, was requiring the Court substitute its own view as to the proper interpretation and content of domestic law: manifestly ill-founded.

Inadmissible under Article 8: Privat e life includes a person’s physical and psychological integrity. In the instant case, there was no direct link between the measures which, in the applicant’s view, should have been taken by the local authority and the prejudice caused to his psychiatric we ll-being attendant on the realisation of the gravity of his act, his conviction and subsequent placement in a mental hospital without limit of time. The assumption of responsibilities by the authorities of a Contracting State for the health of an individua l may in certain defined contexts engage their liability under the Convention with respect to that individual as well as to third parties. However, it could not be said that the local authority's failure to discharge its statutory duty under the Mental Hea lth Act led inevitably to the fatal stabbing of the victim. It was a matter of speculation whether the applicant would have consented to become an in-patient on a voluntary basis or followed a prescribed course of medication or co-operated in any other way with the authorities. Therefore, the applicant’s complaint did not disclose an appearance of a violation of Article 8: manifestly ill-founded.

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