LAWHONS 742 - Public Authority Liability

Course content

This seminar concerns the monetary liability of public authorities, that is liability to pay damages or compensation, with a focus on tort liability. Public authorities frequently cause loss to private individuals or entities by their decisions, or fail to use their powers to protect private individuals or entities against harm. Often that is entirely lawful and proper (e.g. imposition of taxes), but sometimes it results from unlawful or wrongful decisions or conduct. While public law controls on the legality of exercises of public powers are well developed and largely well understood, monetary liability to compensate for such losses is both much more limited and much less well settled.

Our focus will be on the issues and debates that result from the uncertain interface between public and private law principles in this area. Liability is usually governed by private law principles such as the law of tort. Yet where claims arise from the exercise (or failure to exercise) public powers, public law principles are equally relevant. The most appropriate balance or mix of the often conflicting objectives and doctrinal structures of private and public law is a matter of continuing debate, leading to much doctrinal instability and confusion. For instance, is the objective of damages awards against public authorities redressing harm to individuals or holding authorities accountable? To what extent should liability depend on, or necessarily flow from, making out public law grounds of unlawfulness? We will encounter these sorts of issues in the context of the various available bases of public authority liability.

Delivery:

This Seminar is entirely discussion-based – apart from the odd short introductory talk, I will not give lectures. That means that the seminar will stand or fall depending on your participation: you simply have to get in there and give it a go (and that in turn requires preparation). If you do, I am sure you will find the seminar that much more rewarding. I look forward to plenty of interesting discussions.

As a central component of this course, you will plan, research and write an Honours Seminar Research Paper, a task that will extend across both semesters. Much of the second semester will be given over to your presentations of your draft papers and discussion of these. I have designed the process to be as close as possible to academic practice in preparing research papers for publication: you will choose and develop a topic, write a draft, circulate your draft for reading, give a presentation on your draft, receive comments, and then revise your draft for final submission. You will also provide comments on a classmate’s draft.

• Research paper 70%
• Written response to materials and questions for one seminar 10%
• Written comments on a classmate 5%
• Presentation of draft research paper 10%
• Class participation 5%
• In-class early feedback exercise 0%