Public Authority Liability for Negligence in the Post-IPP Era: Sceptical Reflections on the 'Policy Defence'
45 Pages Posted: 15 Sep 2016
Date Written: Febr 14, 2016
Abstract
This article reviews the impact upon public authority liability for negligence of the introduction in Australia since 2002 of a variety of statutory restrictions upon public liability, in particular provisions introducing a new ‘policy defence’ for authorities that is designed to reduce their exposure to liability through lowered standards of care modelled on public law concepts. The article analyses the impact of the disparate provisions in the light of their recent judicial interpretation, highlighting the problems and uncertainties they create, their wide variation in form and their infidelity to the original reform proposals on which they are based.
A return to the drawing board is required. We canvas two potential solutions that now merit more detailed consideration – either a wholesale reversion to the common law; or the enactment in Uniform Legislation of a single, cautiously deferential approach to liability for discretionary public body decisions, which mimics the approach to other types of specialised, expert decision in private law.
Keywords: Tort, Public Law, Negligence, IPP Review, Policy Decisions, Civil Liability Act
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