Misfeasance in Public Office: A Tort in Tension

31 Pages Posted: 1 Dec 2020

See all articles by Ellen Rock

Ellen Rock

University of Technology Sydney (UTS)

Date Written: November 30, 2019

Abstract

The rationale for the tort of misfeasance in public office remains the subject of academic speculation. This article adopts the concept of accountability as the tort’s guiding rationale, analysing it within the accountability framework: who is accountable to whom, for what, and how? Within this framework, it is possible to identify various points of tension between aspects of the tort, as it pulls at different times towards the disparate goals of restoration, desert, and deter-rence. Characterising the tort as an accountability mechanism allows us to view it as reflecting a compromise between these accountability goals, and also helps explain why the tort continues to draw interest in public and private law circles, notwithstanding its low rate of success in practice.

Keywords: Government liability, Misfeasance in public office, tort liability, Public accountability, Government accountability

Suggested Citation

Rock, Ellen, Misfeasance in Public Office: A Tort in Tension (November 30, 2019). Melbourne University Law Review, Vol. 43, No. 1, 2019, Available at SSRN: https://ssrn.com/abstract=3715911

Ellen Rock (Contact Author)

University of Technology Sydney (UTS) ( email )

15 Broadway, Ultimo
PO Box 123
Sydney, NSW 2007
Australia

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