Constructing a Framework for Assessing Public Authority Liability in Negligence: The Role of Public Law Norms, Private Law Norms and Policy Arguments
National University of Singapore (NUS) - Faculty of Law
January 1, 2011
Tort Law Review, Vol. 19, 2011
This paper evaluates the different norms and arguments that the courts have used to deal with the question of whether a public authority owes a duty of care to a particular claimant. In analysing the law in the area, I identify three decision-making tools used by the courts: ‘private law norms’, ‘public law norms’ and ‘policy arguments’. I argue that a common problem with the courts’ use of these tools is inattention to the different categories of cases involving public authorities and that the courts should adopt different strategies in deciding a case, depending on the category of the case. Two categories of cases are identified here: ‘discrete’ cases of negligence and cases of ‘systemic’ negligence. I propose an alternative decision-making approach that is sensitive to the different categories of cases and that is based on a calibrated use of the different norms and arguments for each category. In proposing this alternative, I identify three risks with adopting ‘skewed’ approaches that tend to favour the application of any one set of norms or arguments. I characterise these problems as ‘categorical problems’, ‘compliance-based problems’ and ‘dialogic problems’. I conclude with highlighting the potential that the alternative approach proposed has in facilitating a more cooperative dialogue between the judiciary and the executive that is based on a greater shared understanding of the scope and application of the tort of negligence in relation to public activities.
Keywords: tort law, public authority liability, duty of care, negligence, policy, policy arguments
Date posted: May 4, 2011