Public authorities: what is a hybrid public authority under the HRA?

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

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Is there a Duty to Prevent Harm in Tort? A Common Law Perspective

Journal of European Tort Law ◽

10.1515/jetl-2021-0007 ◽

2021 ◽

Vol 12 (2) ◽

pp. 116-145

Author(s):

Paula Giliker

Keyword(s):

Human Rights ◽

Common Law ◽

Tort Law ◽

Public Authority ◽

Public Authorities ◽

Statutory Duty ◽

Starting Point ◽

Private And Public ◽

Legal Position ◽

The Common

Abstract In this paper, I will examine the extent to which the common law of tort in England and Wales imposes a duty to prevent harm on public authorities and private individuals. As will be seen, the starting point for the common law is that such liability should, in both cases, be regarded as exceptional. This must, however, be weighed against duties to prevent harm that arise under the torts of negligence and breach of statutory duty. Public authorities may also face claims that their failure to prevent harm is in breach of ECHR arts 2 or 3. While the law is complex, this paper identifies three key arguments that explain the current legal position at common law, namely that: (i) tort law should treat private and public parties alike: (ii) human rights claims should be treated as distinct from private law claims and (iii) libertarian concerns signify that a duty to prevent harm should be exceptional and needs to be justified. While these arguments provide both an explanation of and a justification for the current law, this article questions to what extent the treatment of public authority liability may be regarded as unduly harsh on vulnerable claimants.

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ЛОГІКА ВИКЛАДАННЯ ІСТОРІЇ ДЕРЖАВА І ПРАВА УКРАЇНИ ВІДПОВІДНО ДО КОНСТИТУЦІЇ УКРАЇНИ

Humanities journal ◽

10.32620/gch.2018.4.10 ◽

2018 ◽

pp. 86-97

Author(s):

Григорій Юрійович Каніщев

Keyword(s):

The State ◽

Public Authority ◽

Academic Disciplines ◽

Current Status ◽

Political Struggle ◽

Public Authorities ◽

Developed Country ◽

History Of ◽

State Rights

History of State and law of Ukraine can be considered as one of the leading academic disciplines to modern lawyers because its purpose is to familiarize professionals with the historical experience of the development of statehood and the territory of modern Ukraine that directly or indirectly impact on the current status and the quality of the public authority in our country, on the relationship between the State and citizens, on the situation in Ukraine in the international arena, its image in the world, etc. Great value for the teaching and study of history of State and Law of Ukraine have changes that have been happening lately in higher legal education in our country. Besides necessary legal skills and knowledge, present-day and future lawyers have to understand the nature of law and the philosophy of human rights, the role of the bureaucracy in the functioning of the State organized by the society, the mechanism of distribution of public authorities, as well as to understand the ways of development of the State and its transition from a developing country to a developed country. The role of history of State and Law of Ukraine here is mapping the processes of historical evolution of relationships between the human and the State on the modern Ukrainian territory. This includes compliance with State rights, in particular political struggle of people for their rights in both peaceful and violent way (through an armed revolt against the authorities) etc. In this connection, educational courses and researches on the history of State and Law should pay much attention to the evolution of public authority as a result of the struggle of people for their rights.

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R. v. Imperial Tobacco Ltd.: More Restrictions on Public Authority Tort Liability

Alberta Law Review ◽

10.29173/alr272 ◽

2012 ◽

Vol 50 (1) ◽

pp. 157

Author(s):

Lewis N. Klar, Q.C.

Keyword(s):

Supreme Court ◽

Public Authority ◽

Duty Of Care ◽

Supreme Court Of Canada ◽

Upper Canada ◽

Tort Liability ◽

Public Authorities ◽

The Supreme Court ◽

Regulatory Functions

Since 2001, it has become very difficult for claimants to successfully sue public authorities for their negligent conduct, particularly in relation to their regulatory functions. This primarily has been due to the refined duty of care formula established by the Supreme Court of Canada in Cooper v. Hobart and Edwards v. Law Society of Upper Canada. As a result of their 2011 R. v. Imperial Tobacco Ltd. decision, the Supreme Court of Canada has restricted even further the ability of private claimants to successfully sue governments for their regulatory failures.

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The Constitutional Mechanism for the Realization of Social Interest in the Activities of Public Authorities: Organizational and Legal Components

Lex localis - Journal of Local Self-Government ◽

10.4335/19.1.1-18(2021) ◽

2021 ◽

Vol 19 (1) ◽

pp. 1-18

Author(s):

Nikolay Antsiferov

Keyword(s):

Social Interest ◽

Public Authority ◽

The Other ◽

Public Authorities ◽

Other Hand ◽

Limited Power ◽

The One

The article is devoted to the problems of the legal organization of public authority in the context of ensuring social interest. Given the idea of constitutionally limited power, the study considers two key elements of the mechanism for ensuring social interest - organizational and legal. The content of these elements is considered in the logic of their relationship with one another. Conclusions are made about their complementarity, on the one hand, and a certain degree of competition, on the other hand, and the problems of collisions between the elements under consideration are also revealed.

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Pubic authorities – negligence actions – control devices

Legal Studies ◽

10.1111/j.1748-121x.1998.tb00066.x ◽

1998 ◽

Vol 18 (1) ◽

pp. 1-14 ◽

Cited By ~ 1

Author(s):

Douglas Brodie

Keyword(s):

County Council ◽

Public Authority ◽

Home Office ◽

Public Authorities ◽

London Borough ◽

Statutory Duty ◽

Common Thread ◽

Borough Council ◽

The Common ◽

Control Devices

X (minors) v Bedfordshire County Council is by far the most important decision on the liability in negligence of public authorities since Anns v Merton London Borough Council. These two authorities, along with Dorset Yacht Co v Home Office, furnish the ground rules for such actions. The leading judgment in X v Bedfordshire CC, in which all his brethren concur, is given by Lord Browne- Wilkinson; the only other judgment being given by Lord Jauncey. The common thread running through this trilogy of cases is the emphasis on the significance of the element of discretion in the exercise of the statutory functions of a public authority: ‘Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed’.

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THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES FOR OMISSIONS

The Cambridge Law Journal ◽

10.1017/s0008197319000692 ◽

2019 ◽

Vol 78 (3) ◽

pp. 545-569

Author(s):

Tom Cornford

Keyword(s):

Common Law ◽

Public Law ◽

Public Authority ◽

Duty Of Care ◽

Public Authorities ◽

The Public ◽

The Common

AbstractIn this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority's public law powers and duties.

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Liability of the State and Public Authorities in Israel and South Africa

European Journal of Comparative Law and Governance ◽

10.1163/22134514-45060008 ◽

2013 ◽

pp. 1-47

Author(s):

Max Loubser ◽

Tamar Gidron

Keyword(s):

South Africa ◽

South African ◽

Common Law ◽

Economic Loss ◽

Tort Law ◽

Public Authority ◽

The South ◽

Public Authorities ◽

Pure Economic Loss ◽

The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

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PUBLIC AUTHORITIES AS “VICTIMS” UNDER THE HUMAN RIGHTS ACT

The Cambridge Law Journal ◽

10.1017/s0008197305006872 ◽

2005 ◽

Vol 64 (2) ◽

pp. 315-328

Author(s):

Howard Davis

Keyword(s):

Human Rights ◽

Public Authority ◽

Current Debate ◽

Local Authorities ◽

Public Authorities ◽

House Of Lords ◽

Human Rights Act ◽

Human Rights Act 1998

ONE feature of the current debate concerning the term “public authority” in the Human Rights Act 1998 is a rule to the effect that public authorities are not themselves capable of having and enforcing Convention rights. In what follows this will be referred to as the “rights-restriction rule”. The position was confirmed by the House of Lords in Aston Cantlow and has been given effect by the courts in relation to English local authorities and to NHS Trusts in Scotland. Despite this, doubts have been expressed. In particular the parliamentary Joint Committee has suggested, though without argument, that the denial of Convention rights to public authorities may be wrong in principle and that there are “circumstances in which public authorities have Convention rights”.

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Public authority negligence revisited

The Cambridge Law Journal ◽

10.1017/s0008197300000040 ◽

2000 ◽

Vol 59 (1) ◽

pp. 85-132 ◽

Cited By ~ 5

Author(s):

S.H. Bailey ◽

M.J. Bowman

Keyword(s):

Human Rights ◽

United Kingdom ◽

Public Authority ◽

European Convention ◽

Public Authorities ◽

London Borough ◽

The United Kingdom ◽

House Of Lords ◽

Borough Council ◽

Legitimate Interests

Following on from earlier consideration of this issue by the same authors in the 1980s, this article examines the principles governing the negligence liability of public authorities as articulated in recent cases, and in particular the decisions of the House of Lords in X v. Bedfordshire, Stovin v. Wise and Barrett v. Enfield London Borough Council. It concludes that the various attempts to establish special principles to govern such liability have been misguided, and that the courts have proved too willing to reject claims on the basis of questionable policy considerations, to the extent that a blanket immunity might appear to have been established in some contexts. Ultimately, this approach has brought the United Kingdom into conflict with its obligations under the European Convention on Human Rights. It is argued that ordinary private law principles provide a wholly appropriate basis for reconciling the legitimate interests of public authorities with the need to accord justice to individual litigants.

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