Constructing a Framework for Assessing Public Authority Liability in Negligence: The Role of Public Law Norms, Private Law Norms and Policy Arguments
Tort Law Review, Vol. 19, 2011
Posted: 4 May 2011
Date Written: January 1, 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
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