Remedies for Breaches of 'Public' Obligations: The Equality Principle Meets the Welfare State and the New Constitutionalism
THE LAW OF REMEDIES: NEW DIRECTIONS IN THE COMMON LAW, Jeff Berryman, Rick Bigwood, eds., Toronto: Irwin Law, 2008
26 Pages Posted: 21 Jun 2008 Last revised: 6 Jul 2011
This essay is about how courts ought to remedy breaches of obligations owed by government. It looks at the conceptual difficulties that such claims pose for Commonwealth legal systems that have been dominated by the "equality" principle, which principle insists that government officials are subject to the ordinary law of torts and ordinary remedies. The essay argues that greater clarity is needed both in terms of what plaintiffs are actually attempting to achieve and the reality of what courts can deliver.
Common law notions have treated the State's welfare obligations as giving rise to something less than a legally enforceable claim. Litigators have, however, sought and have partially succeeded in enforcing obligations to protect children. This finding of liability may lead to compensation and the ability to confront formally those institutions that have failed the victims. But the finding of responsibility may also be leading us to a new way of viewing the welfare state and the role of courts in requiring government, and the society behind it, to live up to the aspirations of the welfare state.
These developments have occurred in a rather shadowy way, as the legal theories under which the state bodies are held liable are often unclear or obscure. This essay links these developments together. There appears, however, to be a new awareness not only that the State indeed does exist, but that children might have some kind of legal redress against the State. The essay will argue that there ought to be a more sophisticated debate over the role of courts in the enforcement of welfare obligations.
Keywords: tort, government liability, welfare obligations
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