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Rethinking the negligence liability of public authorities in English law

Gafni, Ilan (2022) Rethinking the negligence liability of public authorities in English law. PhD thesis, London School of Economics and Political Science.

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Identification Number: 10.21953/lse.00004397


Between the 1970s and the end of the 1990s, the House of Lords and the Court of Appeal attempted to reshape the negligence liability of public authorities in English law in accordance with parallel developments in the growing body of administrative law. The attempt, however, was not successful, and in the last two decades, there is a notable shift back to a principled approach of negligence claims against public authorities. Much like the law shaped during the 19th century, courts are reemphasising the importance of subjecting public entities to the ordinary law of tort. To that end, Dicey’s ‘idea of legal equality’ still serves as the leading principle. As the cornerstone of the English rule of law, Dicey’s theory emphasises why public officials cannot escape liability just because of their public roles. However, it does not provide a sufficient reason to avoid imposing liability on a public authority when it negligently performs a specific power that a private individual does not possess. Another theory is needed to complete Dicey and explain why public authorities are subjected to the same ordinary tort law, and how ordinary law should be interpreted when discussing their negligence liability. This thesis aims to fill a current gap in the literature by suggesting a theoretical framework for equal treatment in tort, thus explaining recent trends in the law. It follows Ernest Weinrib’s corrective justice theory and Arthur Ripstein’s rights-based analysis of tort law and applies them to negligence claims against public authorities. The thesis identifies two key issues that comprise most of the ‘hard cases’ with regard to the negligence liability of public authorities: first, liability for pure economic loss; and second, a failure to protect another from harm, sometimes referred to as liability for omissions. The thesis then explains how a rights-based theory addresses both topics, focusing mainly on the ‘assumption of responsibility’ doctrine, while rejecting different policy arguments that are often mentioned in this context by judges and scholars alike.

Item Type: Thesis (PhD)
Additional Information: © 2022 Ilan Gafni
Library of Congress subject classification: K Law > K Law (General)
K Law > KD England and Wales
Sets: Departments > Law
Supervisor: Voyiakis, Emmanuel and Sage, Nick

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