Citation

Bailey S. Legal Stud. 2006; 26(2): 155-184.

Copyright

(Copyright © 2006, Society of Legal Scholars, Publisher John Wiley and Sons)

DOI

10.1111/j.1748-121X.2006.00017.x

PMID

unavailable

Abstract

The liability of public authorities in negligence continues to be a problematic area of the law. Some of the difficulties have been caused by the adoption by the courts of unnecessary and unworkable tests, in addition to the ordinary principles of the law of negligence. This is normally done to restrict liability, as with the policy-operational dichotomy, and the propositions that no liability can arise in respect of an act that 'falls within the ambit of a statutory discretion' or where the matter is non-justiciable. Sometimes the intention seems to be to extend liability, as with the suggestion that, generally, a duty of care may arise where there is an irrational failure to exercise a statutory power. Recent cases have helpfully continued the process of removing these special rules, leaving matters to be dealt with by the ordinary principles of negligence. Those principles enable proper account to be taken of the particular functions and responsibilities of public authorities. However, the cases remain difficult and the outcomes can still give rise to debate and disagreement. Insofar as there is a good case for extending the range of situations in which compensation is available in respect of the careless or unlawful acts of public authorities, it would be better to develop ex gratia schemes and the provision of remedies through ombudsmen than to extend the law of tort.

Language: en