A Marriage of Strangers: The Wednesbury Standard in Tort Law

Macquarie Journal of Business Law, Vol. 7, p. 131, 2010

16 Pages Posted: 29 Jul 2010  

Greg Weeks

University of New South Wales Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: July 12, 2010

Abstract

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 [2007] 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.

Keywords: Wednesbury, tort, administrative law, public law

JEL Classification: K13, K10, K30, K39

Suggested Citation

Weeks, Greg, A Marriage of Strangers: The Wednesbury Standard in Tort Law (July 12, 2010). Macquarie Journal of Business Law, Vol. 7, p. 131, 2010 . Available at SSRN: https://ssrn.com/abstract=1650433

Greg Weeks (Contact Author)

University of New South Wales Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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