Towards a Public Law of Tort »

"This book presents a new approach to the problem of public liability. It does this by providing a theoretical foundation in the form of principles of administrative liability that are both normatively sound and consonant with other recognized legal principles. These are used as a criterion by means of which to judge the current law and, this having been found wanting, as a guide to reform. The book argues that such reform could be brought about by judicial development of the law and explains how this might be achieved." "In the course of the argument both the procedural and the substantive divides between public and private law are considered and the proposed solution's relation to the forms of public authority liability already present under European Community law and the Human Rights Act is explained." The book will be of interest to scholars and practitioners of both tort and public law and its argument, while focusing on English law, is also relevant to other Commonwealth countries.

Table of Cases

Table of Legislation

Pt. 1 Theoretical Foundations

1 Introduction 3

2 Dicey's Equality Principle and the State 9

3 Principle I 15

Corrective justice 15

Administrative law and the rule of law 16

Some ramifications 24

4 Cohen and Smith's Theory of Entitlement 31

5 Principle II 45

Egalite devant les charges publiques and the principle of risk 49

6 The Reach of Public Law 55

The powers of core public authorities and the reach of public law 57

Type 1: uniquely public powers 62

Type 2: private law-type powers 63

Type 3: practical powers 70

Conclusion 82

7 The Distinctiveness of Public Law 87

Common values and the public/private divide 87

Hybrid public bodies and the reach of public law 91

8 The Nature of Public Law Duties Elaborated 97

Pt. 2 Implementation

9 Implementing Principle II 113

Introduction 113

Implementing principle II 113

10 Principle I and the Stable and Volatile Parts of Tort Law 129

The stable part of tort law 130

Satisfaction of principle I and the volatile part of tort law 136

11 Principle I and the Case Law on Negligence 139

The private approach and the public approach to negligence 142

Home Office v Dorset Yacht and Anns v Merton Borough Council 151

The reaction to Anns 159

X v Bedfordshire 161

After X v Bedfordshire 173

12 Implementing the Public Approach to Negligence 189

The courts' present approach and the wider case law 189

Obstacles to developing the public approach to negligence 196

The public approach to negligence 198

The Crown 206

Public and private law concepts 208

13 Outstanding Issues 219

Contrary views of administrative liability 219

Policy arguments219

Other remedies 221

Other rationales 225

European influences 229

Liability under principle I and state liability in European Community law 229

Liability under principle I and damages under the Human Rights Act 233

The procedural divide between public and private law 236

Bibliography 241

Index 249