Chapter 6 Pointers to 'pause for reflection' and 'counterpoint' boxes

Special duty problems: public bodies

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This box is asking you to compare two cases in which a woman suffered harm as a result of police negligence and the way in which each respective court or courts handled that case – not only the eventual outcome. At a basic level, it will be apparent that there are differences between the cases – for example, Waters was herself a police officer, rather than a member of the public as Doe was; her case was about an internal investigation and harassment she faced at work as a result of reporting a rape, rather than that due to the police's negligence she had suffered a rape, as was Doe's claim. As the question in the box suggests, however, it is not the differences that we are seeking to highlight here, but the similarities, particularly in the way that the tort system deals with harms that are suffered primarily by women (such as rape or other sexual assault, as well as domestic violence). In the first place, it is worth thinking about why the tort system handles rape and rape-based claims at all – though a debate can be entered into about the efficacy of the criminal justice system elsewhere. Is the tort system here inadequate in the way it handles this type of claim – particularly when compared with the Canadian approach in Doe? And/or, as a consequence, are what may be seen to be typically women's harms a) being dealt with in the wrong place/manner entirely or b) in the right place but with the wrong outcomes? And if so, why is this? Put another way, is the tort system geared up to more readily recognise and deal with harms that are not typically suffered by women (and also those which are more 'visible' or tangible) – e.g. physical harm or damage to property? To think further on the concept of 'gendered harm' in tort – and the difficulty our judges may have in handling it – you may wish to read an article on Waters by Joanne Conaghan: 'Law, harm and redress: a feminist perspective' (2002) 22(3) Legal Studies 319 or Kirsty Horsey’s chapter ‘Trust in the police? Police Negligence, Invisible Immunity and Disadvantaged Claimants’ in J Richardson and E Rackley (ed.) Feminist Perspectives on Tort Law (Routledge, 2012). Further, you could see Horsey and Rackley’s discussion of this in relation to domestic violence in particular in Horsey, Kirsty and Erika Rackley ‘Tort Law’ in Rosemary Auchmuty (ed) Great Debates on Law and Gender (Palgrave, forthcoming 2018). It is also now worth considering the potential human rights aspects of claims in this area, after the Court of Appeal’s decision in The Commissioner of Police of the Metropolis v DSD and NBV and others [2015]. Note, however, an appeal of this case by the Metropolitan Police was heard by the Supreme Court on 13– 14 March 2017.

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