Aronson, Mark --- "Government Liability in Negligence" [2009] UNSWLRS 48

University of New South Wales Faculty of Law Research Series

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Government Liability in Negligence [2009] UNSWLRS 48 (24 November 2009)

Last Updated: 4 December 2009

, University of New South Wales

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Citation

This paper was published in [2008] MelbULawRw 2; (2008) 32 Melbourne University Law Review 44.

Abstract

The tort reform legislation of most Australian jurisdictions includes provisions directed specifically at protecting government defendants from civil liability. The legislation makes it harder to sue for breach of statutory duty, regulatory failure, the exercise of ‘special statutory powers’, and negligent failure to inspect the roads. These changes reflect an assumption long held at common law that there is something different about alleging government negligence, at least where the government is exercising statutory powers or performing statutory duties. The cases and reformers have long searched for the answer to the question of what that ‘something’ might be. This article considers the common law, analyses the legislation and then concludes by suggesting that a more principled approach would, in fact, focus on the nature of the functions performed, rather than on the identity of the defendant.