Government Liability in Negligence

Melbourne University Law Review, Vol. 32, No. 44, 2008

UNSW Law Research Paper No. 2009-48

39 Pages Posted: 25 Nov 2009

See all articles by Mark Aronson

Mark Aronson

University of New South Wales (UNSW)

Date Written: November 24, 2009

Abstract

The tort reform legislation of most Australian jurisdictions includes provisions directed specifically at protecting government defendants from civil liability. The legislation makes it harder to sue for breach of statutory duty, regulatory failure, the exercise of ‘special statutory powers’, and negligent failure to inspect the roads. These changes reflect an assumption long held at common law that there is something different about alleging government negligence, at least where the government is exercising statutory powers or performing statutory duties. The cases and reformers have long searched for the answer to the question of what that ‘something’ might be. This article considers the common law, analyses the legislation and then concludes by suggesting that a more principled approach would, in fact, focus on the nature of the functions performed, rather than on the identity of the defendant.

Keywords: Tort, Rule of law, Public Law

Suggested Citation

Aronson, Mark I., Government Liability in Negligence (November 24, 2009). Melbourne University Law Review, Vol. 32, No. 44, 2008 , UNSW Law Research Paper No. 2009-48, Available at SSRN: https://ssrn.com/abstract=1512452

Mark I. Aronson (Contact Author)

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

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