Liability for Failure to Regulate Health and Safety Risk - Second-Guessing Policy Choice or Showing Judicial Restraint?
European Tort Law 2005 (Tort and Insurance Law Yearbook), pp. 1-21, 2006
21 Pages Posted: 14 Mar 2007 Last revised: 4 Nov 2009
Date Written: 2006
Can the State be held liable in tort for failure to enact protective legislation preventing the spread of a contagious disease? Can a regulatory agency responsible for occupational health and safety be held liable for not safeguarding employees from being exposed to a specific noxious substance? Are civil courts the appropriate forum to evaluate legislative policy in this respect? Or should they abstain from second-guessing public policy and leave these issues to politics?
These are difficult questions on the intersection between tort law, regulatory law, constitutional law and administrative law. In this paper, we identify some of the arguments used in the European legal debate in favour of and against judicial activism concerning liability for failure to regulate. We argue that in European tort law systems there is more space for this type of State liability than one would initially expect.
Keywords: state liability, regulatory failure, administrative tort, European tort law
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