Public Power, Discretion and the Duty of Care
Chapter 9 in: K Barker, S Degeling, K Fairweather and R Grantham, 'Private Law and Power' (Hart, Oxford, 2017), 207-238
32 Pages Posted: 2 Aug 2017 Last revised: 15 Mar 2022
Date Written: 2017
Abstract
This chapter examines the effect that a public body's statutory 'discretion' has upon its liability for negligence in modern English and Australian law. The meaning accorded by courts to the term 'discretion' in this context is unpicked and the core ideas and underlying concerns then critically examined. The two most popular judicial conceptions of discretion, the paper determines, are associated with the idea that public bodies have either no duty of care (a Hohfeldian privilege from duty) or an immunity from any liability in respect of their decisions on account of courts' concerns about the justiciability of the question lying at the heart of that decision. The chapter then considers the various different approaches that courts have taken to determining this underlying question of justiciability, identifying a recent a shift in courts' thinking toward a new approach based on the compatability of a given tort duty or liability with the intentions of the relevant empowering legislation. This approach, it suggest, is potentially more consistent with a Diceyan vision of the relationship between courts and the State and has some advantages therefore in terms of its political acceptability, but is still hard to apply and potentially fictionalises Parliamentary intentions. The chapter concludes with a critical assessment of recent legislative reforms in Australia which have increased State immunities and privileges at the expense of tort litigants. The justifications for these additional restrictions are unclear and their form in which they have been enacted is to be regretted.
Keywords: Negligence, Public Authority Liability, Power, Discretion, Duty of Care, Hoheld
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