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Posted on September 30th, 2012, by

The implementation of the Human Rights Act of 1988 produced a profound impact on the development of the judicial system and the English law, which was susceptible to considerable changes due to the introduction of this act. In actuality, it is possible to estimate that the Human Rights Act of 1988 brought in elements of the civil law system, which a priori is different from the traditional the English law. In such a situation, the traditional legal procedures which were widely and successfully implemented under English law became vulnerable to considerable changes under the impact of the Human Rights Act of 1988. As a result, the Human Right Act of 1988 brought in certain disorder or misbalanced the existing system which functioned for decades or even centuries under the English law. On the other hand, it is hardly possible to view the Human Rights Act of 1988 as the legal act that revolutionized the existing judicial system radically. Instead, it would be more logical to speak about considerable changes which the traditional practice based on the English law should take into consideration, while the fundamental principles of the English law remained unchanged. Moreover, the introduction of the Human Rights Act of 1988 was essential, in a way, because the introduction of this act ensured the adaptation of the existing judicial system to the new requirements of the modern epoch, when human rights need to be protected at levels of the judicial system and the implementation of the Human Rights Act of 1988 may be viewed as a marker of the growing concerns of policy-makers with the problem of the protection of human rights as the major priority of the modern judicial system and the state at large.

The tortuous liability and the English Law

On analyzing the impact of the Human Rights Act of 1988, it is necessary to understand how the English law norms and principles function before the introduction of the act since it will help to better understand how such issues as the tortuous liability were treated under the English law. In fact, the tortuous liability proves to be a quite a controversial issues and, in this regard, it is possible to refer to the film “Rainmaker”¯ which actually reveals the full potential of the modern judicial system for manipulations with the tortuous liability. In this respect, it is particularly noteworthy to extrapolate this issue on the traditional English law, in its “pure”¯ form before the implementation of the Human Rights Act of 1988.

Historically, the widespread of availability of liability especially since the early part of the 20th century has had a profound effect on the English law, especially in regard to torts as a mechanism for compensating for death and personal injuries. However, it is worth mentioning the fact that there was original controversy in the tortuous liability since there is a fundamental judicial dilemma revealed in many of the cases in the area of Law insurance and tortuous liability. At this point, it should be said that some specialists argue that “liability and insurance are so intermixed that judicially to alter the bases of liability without the adequate as to the impact this might make upon the insurance system would be dangerous and”¦ irresponsible”¯ (Pipes, 1999, p.211). In such a context, the introduction of the Human Rights Act of 1988 which could affect the existing system should be based on a profound analysis of the effects of the Act on the insurance and liability system as well as on the English law at large.

In this respect, it is important to stress that liability under the English law is determined upon the notion of loss shifting which simply entails that either the plaintiff or the defendant, or sometimes both, must individually bear the loss and the principal criterion is generally based on “fault”¯ or “blameworthiness”¯, while insurance comes in as loss distribution mechanism. At the same time, the development of the legislation and the English Law have been used to enhance the compensation system. Hence, statutes can enable proceedings to be brought against the estate of a deceased tortfeasor or wrongdoer and this is no doubt a direct consequence of the system of compulsory insurance, which was originally introduced in the 1930s (Mckay, 2004, p.174). As a result, even if a plaintiff may have been negligent, this is not a ground to completely deprive him of all right to damages merely because he has been negligent in circumstances where the defendant is also at fault. In such a way, returning to the case of Donny Ray and the tortuous liability of the insurance company, it should be said that, in terms of the English law before the introduction of the Human Rights Act of 1988, the manipulations insurance were hardly possible, because the parents of Donny Ray still could count for compensation, even though the plaintiff or the defendant proved to be negligent or at fault that was actually the case and that actually caused the failure of Rudy to win this case and force the insurance company to pay off the compensation. In this respect, it is important to underline that the English law implies the responsibility of the tortfeasor or wrongdoer even in case of his death. Consequently, the bankruptcy would hardly save the insurance company form paying off the insurance to parents of Donny Ray because the wrongdoer should be responsible with his estate if he was unable to provide them with the respective compensation which was defined by the court, in accordance with the procedures enabled by the English law.

In this respect, it is important to stress the fact that the insurance company was responsible for its manipulations since, according to the norms of the English law, if the insurance company was involved in some frauds which are likely to be the case of the insurance company when it avoided paying off compensations to Donny Ray’s parents by means of bankruptcy. In fact, specialists (Pipes, 1999, p.237) point out that it is in the spirit of the law being used as an instrument of social engineering that in circumstances, where, for example, the policy may have been obtained by fraud or misrepresentation, or even when the insured may have been guilty of a breach of a condition of the policy. Moreover, the Road Traffic Act does not permit an insurer to escape all liability to an accident victim in any of these circumstances simply by repudiating the policy which according to the law of contract he may be entitled to do because fraud, for instance.

Hence, it is obvious that under the English Law the insurance company and the tortfeaser practically had no opportunities to escape their responsibility to pay off the compensation to the parents of Donny Ray.

The impact of the Human Rights Act on liability

In such a context, it is necessary to assess the effects of the introduction of the Human Rights Act of 1988 on the tortuous liability as well as the English law at large. In fact, as the film “Rainmaker”¯ shows the insurance company as well as the tortfeaser has managed to avoid paying off the compensation to the parents of Donny Ray. In actuality, the insurance company managed to avoid paying off the compensation because it declared of its bankruptcy. In such a way, the bankruptcy became the reason which proved to be sufficient for the company to escape the fulfillment of its legal obligations concerning the compensation. However, it is important to lay emphasis on the fact that such a situation would be impossible before the introduction of the Human Rights Act of 1988. As it has been already mentioned above the existing judicial system ensured the protection of people and the tortuous liability was practically inevitable for torfeasers as well as insurance companies. They were liable to pay off compensations to victims or their relative, regardless of their actual position, including bankruptcy, for instance. Consequently, the insurance company could not avoid paying off compensations to the parents of Donny Ray under the English law. In case of bankruptcy it had to pay off compensation by any means, including selling off its property and all assets.

However, the introduction of the Human Rights Act of 1988 has changed the situation and judicial practices consistently. In fact, the Human Rights Act of 1988 open the way for such manipulations as the film “Rainmaker”¯ describes. To put it more precisely, it is due to the Human Rights Act the bankruptcy of the insurance company became a sufficient pretext for its refusal to pay off the compensation to the parents of Donny Ray because, under the Human Rights Act, people could not be deprived of means for living and the act protects their basic rights, including property rights. As a result, the insurance company could not be deprived of its property and assets to pay off the compensation because it would offend the human rights of its owners because they could not afford normal living standards if they were obliged to pay off the compensation, regardless of the actual position.

Conclusion

Thus, taking into account all above mentioned, it is possible to conclude that the introduction of the Human Rights Act of 1988 produced a significant impact on the English law at large and tortuous liability in particular. Even though the Human Rights Act of 1988 did not change the English law in principle, but it affected and, limited, in a way norms which were taken for granted under the English law, including the norm of the obligatory paying off insurance compensations. Instead, the Human Rights Act of 1988 opened opportunities for the manipulation with the existing legislation and legal procedures as it was the case with the insurance company described in the film “Rainmaker”¯.

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