Defensive Practice or Conflict of Duties? Policy Concerns in Public Authority Negligence Claims

Law Quarterly Review 420, 2010

29 Pages Posted: 21 Nov 2014 Last revised: 8 May 2019

See all articles by Hanna Wilberg

Hanna Wilberg

University of Auckland - Faculty of Law

Date Written: May 19, 2010

Abstract

Negligence claims against public authorities concerning the exercise or failure to exercise their public powers are frequently dismissed on the grounds that no duty of care is owed. A range of arguments is used to deny a duty of care, including the policy concern that liability in this type of case would unduly interfere with or inhibit desirable activities: if it would result in defensive practice. In this article, I argue that we should distinguish between two different versions of the defensive practice policy concern: the general version and a strong conflict of duties concern, which I argue is a particular version of the same concern. Both the distinction and the link are not commonly acknowledged by judges. Where the strong conflict of duties concern is expressly relied on, it is not usually seen as a version of the defensive practice concern. Conversely, the general defensive practice concern has been invoked in claims by suspects against police or prosecutors, where the strong conflict of duties concern is arguably available.

I argue that recognition of both the link and the distinction would be conducive to clarity and, more importantly, would help to explain why the concern is more valid in some contexts than others. The article sets out to show that there is a solid body of authority for reliance on the strong conflict of duties concern in claims by those whom we might classify as 'suspects'. The general defensive practice concern, on the other hand, has been disregarded or doubted in several recent claims by those whom we might classify as 'victims' or as beneficiaries of regulation, particularly in claims where close proximity existed. The strong conflict argument may also be considered inherently more persuasive than the general version. The conflict argument should thus be less liable to be discarded, and certainly should not be discarded simply on account of doubts about the general version of the concern.

Keywords: Torts, Negligence, Public Authority Liability, Duty of Care, Policy Concerns

JEL Classification: K13, K23

Suggested Citation

Wilberg, Hanna, Defensive Practice or Conflict of Duties? Policy Concerns in Public Authority Negligence Claims (May 19, 2010). Law Quarterly Review 420, 2010, Available at SSRN: https://ssrn.com/abstract=2528246

Hanna Wilberg (Contact Author)

University of Auckland - Faculty of Law ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
465
Abstract Views
1,801
Rank
113,435
PlumX Metrics