|
|
Roderick
Bagshaw Mansfield
College Trinity 2002 |
|||||
|
|
Tort
Liability of Public
Authorities2002
Lecture
1: Dicey Foundations |
|
||||
Introduction |
Why is it so complicated? a.
not every duty is a tort duty; b. not every tort is negligence; c.
public bodies perform a range of tasks, creating a range of different
relationships with possible claimants
|
|
||||
|
a. Equality before the Law |
With us no man is above the law, but (what is a very different thing)
that here every man, whatever be his rank or condition, is subject to the
ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals. A. V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed. 1915), p. 114 |
|
||||
|
|
|
|
||||
|
b. Qualifications |
1. every
man (i) Legal persons - can commit
torts directly and vicariously (ii) The Crown see, s.
2(1) Crown Proceedings Act 1947 (iii) The Sovereign - see,
s. 40(1) (iv) Judges (v) Parliament (vi) The Ministry of Defence
- see, s. 10 (and Crown Proceedings (Armed Forces) Act
1987, s. 2) and Mulcahy v. Ministry of Defence [1996] QB 732 and Matthews v. MOD [2002] |
*1* |
||||
|
|
2. for acts done in their official character but in excess of their lawful authority. |
*2* |
||||
|
|
3. the ordinary law - but sometimes it is more stringent, consider e.g. misfeasance in public office, HRA 1998 ss. 6,7,8,9 |
*3* |
||||
|
|
4. 'the ordinary tribunals - but can seek damages in a claim for judicial review - SCA 1981, s. 31(4) in the Administrative Court. |
*4* |
||||
|
.. |
||||||
|
c. Concerns |
1. Parliament can grant immunities and the executive controls Parliament. Further, such immunities may be granted implicitly, for instance by granting discretionary powers. |
*1* |
||||
|
|
Flipside: Tort claims are a major method for reviewing the legality of government behaviour |
|
||||
|
Diversion
ฎ |
How to interpret statutory authority >Practicality: Wills
v. Bowley [1983] 1 AC 57 >Constitutionality: R. v. Governor of Brockhill Prison, Ex p. Evans (No. 2) [2001]
2 AC 19 >Clarity: Art 5 ECHR >Public law standards: Cooper v. Wandsworth Bd of Works (1863) 14 CBNS 180; Holgate-Mohammed v. Duke [1984] AC 437 >Negligence: political / professional
/ action? (Rowling v. Takaro Properties
[1988] AC 473) >No harm unless necessary : (eg nuisance - Craig, 4th, pp. 881-886) |
ฟ |
||||
|
c.
Concerns continued |
2. How far does equality help when a public authority is carrying out a function with no private analogue? |
*2* |
||||
|
|
3. The seductive rhetoric of equality may obscure reasons for imposing more stringent administrative liability, e.g. 'risk principle' - Carol Harlow, Compensation and Government Torts (1982), p. 70. |
*3* |
||||
|
|
4. The rhetoric may also obscure the special functions that tort law can fulfil in public authority cases, e.g. investigation and punishment where criminal law may be deficient (e.g. cases against police). |
*4* |
||||
|
|
||||||