An Introduction to Administrative Law

By Peter Cane | Go to book overview

12
Liability in Tort

THE BASIC PRINCIPLE

SECTION 2 of the Crown Proceedings Act 1947 provides (subject to a number of exceptions and qualifications)1 that the Crown shall be liable in tort to the same extent 'as if it were a private person of full age and capacity' in respect of vicarious liability,2 employers' liability, and occupiers' liability. The assumption underlying this general provision is that prior to the Act the Crown enjoyed a general immunity from liability in tort. Governmental bodies other than the Crown never enjoyed such an immunity;3 nor did (or does)4 the immunity of the Crown prevent a person suing personally the Crown servant or agent who committed the tort. The general principle now is that all governmental bodies may be sued and held liable in tort in the same way and to the same extent as private individuals and corporations.


THE EXERCISE OF STATUTORY FUNCTIONS

There are, however, two important difficulties in applying this general principle to the exercise of statutory functions. The first concerns the relationship between liability in tort and the doctrine of ultra vires. To say that someone has committed a tort is to say that they have acted unlawfully in a private law sense. To say that a body has acted ultra vires is to say that it has acted unlawfully in a public law sense. A body can be held to have acted unlawfully in a public law sense only if it has acted ultra vires. However, it is possible, in theory at least, that a body might

____________________
1
See p. 235 above.
2
Re misfeasance in a public office (p. 255 below) see Racz v Home Office [ 1994] 2 AC 45.
3
Mersey Docks Trustees v Gibbs ( 1866) LR 1 HL 93; Geddis v Proprietors of Bann Reservoir ( 1878) 3 App. Cas. 430. Although these cases concerned liability for negligence, they are applications of a more general principle. They were actions against nongovernmental statutory corporations, but they are now treated as establishing a general rule governing the exercise of statutory functions by governmental as well as nongovernmental bodies.
4
M v Home Office [ 1994] 1 AC 377.

-241-

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An Introduction to Administrative Law
Table of contents

Table of contents

  • Clarendon Law Series ii
  • Title Page iii
  • Preface v
  • Contents vii
  • Contents xxxv
  • Part I - Rules and Principles of Judicial Review 1
  • 1 - The Nature of Judicial Review 3
  • 2 - The Scope of Judicial Review Public Law and Private Law 12
  • 3 - Applicants 42
  • 4 - Remedies Uses and Availability 62
  • 5 - Procedures 89
  • 6 - Authority 109
  • 7 - The Decision-Making Process (i) 133
  • 8 - The Decision-Making Process (ii) 160
  • 9 - The Output 208
  • 10 - Estoppel 218
  • Part II - Rules and Principles of Liability II 231
  • II- Introduction 233
  • 12 - Liability in Tort 241
  • 13 - Government Contracts 257
  • 14 - Restitution 276
  • Part III- Information 279
  • 15 - Information and Litigation 281
  • 16 - Government Secrecy and Freedom of Information 292
  • Part IV - Non-Judicial Control 301
  • 17 - Parliament the Constitutional Functions of Parliament 303
  • 18 - Investigating Complaints 314
  • 19 - Tribunals 331
  • Part V - Wider Perspectives on Judicial Control 345
  • 20 - Constitutional and Political Background 347
  • 21 - Judicial Review and the Administrative Process 378
  • Index 393
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