Hanna wrote:

> There is a case a little bit like Robert's hypothetical facts in

> Australia,

> but it was decided on the basis of the defensive practice policy concern

> (from Hill v Chief Constable of West Yorkshire) rather than the conflict

> concern in D (but I think the two concerns are related): in NSW v Klein

> 2006

> NSWCA 295, if I'm not mistaken the court held that police owed no duty of

> care when attending an armed offenders call-out where a mentally disturbed

> person was threatening himself and his family and was eventually shot by

> police.

Thanks to Hanna for this case (which is here

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2006/295.html ).

It is questionably reasoned (the court not seeing any differnce between

the police failing to protect a member of the public from harm (eg Hill)

and their negligently inflicting injury upon someone), but it

(fortunately!) doesn't stand for the proposition that the police in

carrying out their public duties owe no duty to the victim not to

carelessly shoot him in the head. The claim was brought by relatives of

the deceased for psychiatric injury suffered as a result of the death, and

the conclusion was that they are owed no duty of care with respect to

their psychiatric injury.

Geoff asked:

"Does it really make sense to keep a separate notion of what can be done

under the common law and the HRA?"

Absolutely it does. The HRA is about the rights we have against the State

that it secures certain goods for its citizens (eg education). Fortunately

my next door neighbour has no equivalent right against me at common law

that I teach him about promissory estoppel.

Geoff also asked:

"Their Lordships seem very quick to accept that the licence was a

property interest under the ECHR, why then is it not a property interest

for the purposes of the common law?"

Because we use "property" in different senses (see eg B Rudden “Things as

Things and Things as Wealth” (1994) 14 OJLS 81).

A commercial lawyer, which is what I purport to be, commonly uses

'property' to mean items of wealth. So all of a company's shares and its

receivables are 'property' in this sense.

However, when we speak of property in the sense of 'rights in rem' what we

mean are rights to things exigible against all others. My right to be paid

my salary at the end of the month is an item of wealth, but that right is

not exigible against you. In Trent, there was obviously no violation of a

property right to a thing exigible against all others, so no such tort.

Under the ECHR, "property" is, wholly unsurprisingly, given a wider

meaning than "rights in things". This is one example of the importance of

" a separate notion of what can be done under the common law and the HRA."

[What I, and many others, mean by "pure economic loss" is loss which is

not consequent upon the violation of a right. So, if you defame me by

calling me a paedophile so that I lose my job, I can claim for my loss

consequent upon the infringement of my right not to be defamed. Where my

loss is not so consequent, where it is 'pure', it is irrecoverable. I know

that some others define 'pure economic loss' in a different way, but I do

not myself consider such other usages to be satisfactory.]

Rob