scholarly journals THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES FOR OMISSIONS

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.

10. Negligence: Duty of Care—Public Bodies

2017 ◽  
Author(s):  
Mark Lunney ◽  
Donal Nolan ◽  
Ken Oliphant
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
The Political ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Economic Considerations ◽  
Public Bodies

This chapter focuses on the negligence liability of public authorities. It discusses how negligence actions against public bodies may have both public and private law dimensions. The discussion of the public law dimension focuses on the mechanisms that have been employed in response to concerns about the political nature of some public authority decisions, and the fact that those decisions frequently involve the balancing of social or economic considerations, and the interests of different sections of the public. The discussion of the private law dimension of negligence actions against public bodies considers policy reasons for limiting the liability of public bodies and statutory responsibilities as a source of affirmative common law duties. The chapter concludes with a consideration of proposals for reform of the law in this area.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

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.

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

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.

The Common Law, Reasons and Administrative Justice

1994 ◽  
Vol 53 (2) ◽  
pp. 282-302 ◽  
Author(s):  
P.P. Craig
Keyword(s):  
Common Law ◽  
Case Law ◽  
Public Law ◽  
Public Authorities ◽  
General Duty ◽  
House Of Lords ◽  
Recent Developments ◽  
Private And Public ◽  
The Common ◽  
Home Department

The capacity of the common law to develop and evolve is well recognised within both private and public law. This is indeed one of its enduring qualities. The objective of the present article is not, however, to contribute to the jurisprudential debate concerning the nature of the adjudicative process at common law. My object is more modest. It is to consider and place in perspective some of the recent developments which have occurred at common law in relation to the duty of public authorities to provide reasons. It is a well known and oft repeated proposition that there is no general common law duty to furnish the reasons for a decision. It is equally well known that this proposition has been the target of regular attack by those who argue that such a general duty should exist. A reconsideration of both of these propositions is timely in the light of case law developments culminating in the House of Lords' judgment in R. v. Secretary of State for the Home Department, ex p. Doody.

Negligence and the Liability of Public Authorities

1998 ◽  
Vol 2 (1) ◽  
pp. 3-22
Author(s):  
Anthony Mason
Keyword(s):  
Public Law ◽  
Public Authority ◽  
Memorial Lecture ◽  
Discretionary Power ◽  
Public Authorities ◽  
The Public ◽  
House Of Lords ◽  
University Of Edinburgh

This is a revised version ofthe third WA Wilson Memorial Lecture, delivered in the New Senate Hall ofthe University of Edinburgh on 8 May 1997. Traditionally the liability ofpublic authorities has been treated as a matter ofprivate law. The difficulty experienced by the courts in formulating viable principles governing liability for a negligent omission to exercise a power intended to be exercisedfor the protection of the public has led to an increased emphasis on the statutoryframework. This emphasis has resulted in a reluctance to uphold liability in cases where an authority is exercising discretionary power, culminating in the recent decision of the House of Lords in Stovin v Wise. This article examines Stovin v Wise in the light of earlier decisions, and suggests that the decision protects the public authority rather than the public in circumstances where there is much to be saidfor the view that, notwithstanding the public law distinction between a power and a duty, a public authority may be liable for an omission to take action to protect the public.

Crown Ownership of Water in situ in Common Law Canada : Public Trusts, Classical Trusts and Fiduciary Duties

2011 ◽  
Vol 51 (3-4) ◽  
pp. 493-519
Author(s):  
Jane Matthews Glenn
Keyword(s):  
Common Law ◽  
Public Law ◽  
Clear Understanding ◽  
Private Law ◽  
Fiduciary Duties ◽  
The Public ◽  
Management Regime ◽  
Functional Equivalent ◽  
The Common

A clear understanding of the private law rules relating to water in situ is a necessary pre-condition to the success of any public law management regime. This article thus examines the private law rules applicable in the common law provinces to determine if there are functional equivalents to Québec’s private law principle of res communis and its statutory notion of State “custodianship”. It concludes that while there is no direct functional equivalent to the concept of res communis, there is an acceptance — almost by default — of Crown ownership of water in situ, an acceptance reflected in the legislation of the western provinces. However, this Crown ownership is not full and absolute but rather limited, more in the nature of “custodianship” than “ownership”. This conclusion follows an exploration of three equitable institutions — the public trust, the classical trust and fiduciary duties. In each case, the argument for limitation is difficult, but not impossible, to make.

The Common Law in Australia: Its Nature and Constitutional Significance

2004 ◽  
Vol 32 (3) ◽  
pp. 337-355 ◽  
Author(s):  
Leslie Zines
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Public Law ◽  
Federal Law ◽  
Contemporary Debate ◽  
Policy Paper ◽  
Law And Policy ◽  
National University ◽  
The Subject ◽  
The Common

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

scholarly journals Thabo Meli Revisited: The Pernicious Effects of Result-Driven Decisions

2013 ◽  
Vol 77 (1) ◽  
pp. 41-55
Author(s):  
Kenneth J. Arenson
Keyword(s):  
United Kingdom ◽  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Limited Extent ◽  
Natural Consequence ◽  
Privy Council ◽  
The Public ◽  
Adversarial System ◽  
The Common

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

The Implementation of Constitutional Reform in the United Kingdom: Principles and Problems

1995 ◽  
Vol 29 (4) ◽  
pp. 551-564
Author(s):  
Dawn Oliver
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Common Law ◽  
Public Law ◽  
Constitutional Reform ◽  
Academic Literature ◽  
The United Kingdom ◽  
The Common ◽  
Executive Agencies ◽  
The Relationship

First, I want to express my gratitude and sense of honour in being invited to deliver the Lionel Cohen lecture for 1995. The relationship between the Israeli and the British legal systems is a close and mutually beneficial one, and we in Britain in particular owe large debts to the legal community in Israel. This is especially the case in my field, public law, where distinguished academics have enriched our academic literature, notably Justice Zamir, whose work on the declaratory judgment has been so influential. Israeli courts, too, have made major contributions to the development of the common law generally and judicial review very notably.In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.

scholarly journals What are the objectives of corporate reporting? Sustainable value for who?

2018 ◽  
Vol 12 (1) ◽  
pp. 436-445
Author(s):  
Razvan Hoinaru
Keyword(s):  
Common Good ◽  
Added Value ◽  
Policy Recommendations ◽  
Public Authorities ◽  
The Public ◽  
Corporate Reporting ◽  
Sustainable Value ◽  
Fit For Purpose ◽  
The Common ◽  
Research Show

Abstract Corporate reporting is generally perceived as a type of accounting fit for purpose for the 21 century, taking into consideration not only the traditional shareholders’ needs and views but also stakeholders’. Academic literature tends to over-appreciate the non-financial nature of corporate reporting, forgetting that numbers can have their own narratives, which can be read in between the lines. It is true that numbers present certain uncertainties and an extra level of reporting can provide a better interpretation, in a complementary or continuous manner. The present research looks at the current European Union binding legislation and academic and professional judgements towards it. The ultimate questions to be answered is if corporate reporting is improved information? and whose needs are really served: shareholders, the traditional users of accounts, or stakeholders, always hidden, but intuitively taken into account. Findings of the research show that public good is largely perceived as the duty of private interest, as regulated by the public authorities. This mainly happens as shareholders and whoever puts money at risk still are the primarily user group, but the context and consequences of reporting are wider than before. The approach taken by this paper was first of all to discover inside outs of corporate reporting and secondly to look how industry self-regulators interact with public authorities, for the common good. The added value of the present papers is represented by its policy recommendations presented as conclusions.

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