The Liability of Public Authorities for Failing to Confer Benefits (original) (raw)
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This article reviews the impact upon public authority liability for negligence of the introduction in Australia since 2002 of a variety of statutory restrictions upon public liability, in particular provisions introducing a new ‘policy defence’ for authorities that is designed to reduce their exposure to liability through lowered standards of care modelled on public law concepts. The article analyses the impact of the disparate provisions in the light of their recent judicial interpretation, highlighting the problems and uncertainties they create, their wide variation in form and their infidelity to the original reform proposals on which they are based. A return to the drawing board is required. We canvas two potential solutions that now merit more detailed consideration – either a wholesale reversion to the common law; or the enactment in Uniform Legislation of a single, cautiously deferential approach to liability for discretionary public body decisions, which mimics the approach ...
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Few commentators would express satisfaction with the current state of the tort of negligence. The case-law is unpredictable, lacks clarity and the tests provided applied in an inconsistent manner. It is easy to blame such uncertainty on the desire of the judges to achieve 'justice'. In White v Jones, Lord Goff accepted that 'The question therefore arises whether it is possible to give effect in law to the strong impulse for practical justice. .. For this to be achieved. .. the court will have to fashion "an effective remedy".' 1 Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) demonstrated that such an approach is far from unique. 2 In so doing, the judiciary demonstrate a willingness to look far beyond the case itself and consider its wider implications to society as a whole. 3 Yet, in so doing, recognition is still made of the need for such decisions to exist within a doctrinal framework. In Fairchild, Lord Nicholls stated: 'To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law'. 4 The question remains whether the current state of the tort of negligence is a natural result of its breadth as a tort or represents 'the disintegration of the modern law'. In his book, Beever asserts the latter view. In a forceful thesis, he argues that the current lack of transparency, uncertainty and, he claims, illegitimate assertion by individual judges of policy concerns, can be avoided. One simply needs to 'rediscover' the principled basis of the tort. To do so he focuses on five "great" cases:
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This paper examines the difficult issues associated with imposing tortious liability on public authorities at common law, focussing her discussion on negligence. It considers the public and private nature of these bodies and their functions, first examining the possible approaches to treatment of these at common law, and then following the enactment of the civil liability legislation in the various States and Territories. A preferred approach to the determination of tortious liability of public authorities is then offered, which, provided a principled approach is taken to statutory interpretation, will accommodate the civil liability legislation.
The Civil Action For Breach Of Statutory Duty In The Common Law World
The tort action for Breach of Statutory Duty provides an intersection between the goals of private law and ‘public’ goals as determined by legislation. But the question as to when, in what circumstances, and why, a civil action should be available to a claimant whose statutory rights have been breached continues to be agitated. This paper argues that the tort, far from deserving the accusations of incoherence and unpredictability sometimes levelled at it in the common law world, has a respectable and coherent history and justification within the common law of torts. There are reasons for doubting whether it should have been abolished in Canada, and its abolition has caused a distortion of the law of negligence in that jurisdiction. The tort is one that in other jurisdictions has continued, and should continue, to operate as an important part of the mechanism of private law for vindicating rights created by the shapers of public values, the legislature.
On the Function of the Law of Negligence
This article offers an understanding of the law of negligence which explains its concern with both interpersonal justice and community welfare. It argues that close attention to the structure of the duty of care inquiry and the reasoning in duty cases suggests that the law of negligence has an underlying community welfare purpose, but that purpose is not to be found in notions of deterrence, compensation or the improvement of standards of behaviour. The community welfare purpose underlying the law of negligence must be one that is more directly served by doing interpersonal justice. The best available explanation is that the law of negligence functions to maintain civil peace by providing an avenue of recourse for certain interpersonal wrongs. This analysis explains why the duty inquiry focuses primarily on considerations of interpersonal justice but, like other private law doctrines, also attends to the community welfare effects of imposing liability.
SSRN Electronic Journal, 2015
The common law action for breach of statutory duty allows an intersection between private law and systems of public regulation, by allowing an individual to sue where rights created by statute have been infringed. One of the most controversial elements of the action, however, is the requirement that the relevant legislation protect a "section of the public", and not the public at large. This paper explores the origins and nature of this rule, and suggests that it may be time to abolish this requirement as a part of the tort action. The tort action for breach of statutory duty has a long history of being used to provide compensation for breach of private rights given by legislation. 2 The courts have begun to accept the list of 6 elements of the tort provided in the 10 th edition of Fleming's The Law of Torts as a convenient summary of the action: The elements of the civil action for breach of statutory duty … can be identified as: (a) the intention of Parliament to allow an action; (b) the plaintiff must fall within the 'limited class' of the public for whose benefit the statutory provision was enacted; (c) the damage suffered must also fall within the intended scope of the statute; (d) the obligation under the statute was imposed on the defendant; (e) the defendant must have breached the statute; and (f) that breach must have caused actual damage of some sort to the plaintiff. 3
2008
The tort action for Breach of Statutory Duty seems to provide the perfect intersection between the goals of private law and "public" goals as determined by legislation. But the question as to when, in what circumstances, and why, a civil action should be available to a claimant whose statutory rights have been breached continues to be agitated. In one common law jurisdiction, Canada, the action has been effectively abolished by judicial fiat. But in others it continues to play an important role, sometimes in matters of seemingly "low status" but great importance to the person concerned (such as injured workers), at other times appearing in surprising contexts dealing with very high profile issues such as the right to consult a lawyer when accused of terrorism, or use of public funds by Government officials. This paper argues that the tort, far from deserving the accusations of incoherence and unpredictability sometimes levelled at it, has a respectable and coherent history and justification within the common law system of torts. It suggests that there are reasons for doubting whether it should have been abolished in Canada, and offers reasons based on the subsequent history in that jurisdiction of negligence claims based on statutory duties that its abolition has caused a distortion of the law of negligence there. It is argued that whether one approaches the matter from a "loss-based" or "rights-based" approach, the tort is one that in other jurisdictions has continued, and should continue, to operate as an important part of the mechanism of private law for vindicating rights created by the shapers of public values, the legislature.