A Marriage of Strangers: The Wednesbury Standard in Tort Law
University of New South Wales Faculty of Law
July 12, 2010
Macquarie Journal of Business Law, Vol. 7, p. 131, 2010
The recent process of legislative reform has seen the public law Wednesbury standard grafted onto the law of tort. Can these concepts operate together or are they fundamentally incongruous? Eminent jurists, most notably Brennan CJ and Lord Hoffmann, had previously proposed the Wednesbury standard as an appropriate measure of whether a public authority owed a duty of care in negligence. While this approach has never commanded the support of a High Court majority, tort law reforms have adopted the use of the Wednesbury standard as a means of restricting the liability of public authorities. This paper will analyse the interaction between Wednesbury and tort law both at common law (particularly in Brennan CJ’s judgment in Pyrenees Shire Council v Day (1998) 192 CLR 330) and under the Civil Liabilities Act 2002 (NSW), with particular reference to Firth v Latham  NSWCA 40. I will argue that the fact that there are different purposes behind the public law Wednesbury standard and its application to tort law is productive of anomalies in the latter sphere. These anomalies are best addressed by greater legislative specificity.
Number of Pages in PDF File: 16
Keywords: Wednesbury, tort, administrative law, public law
JEL Classification: K13, K10, K30, K39Accepted Paper Series
Date posted: July 29, 2010
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