Misfeasance in Public Office: A Very Peculiar Tort
Aronson, Mark, Melbourne University Law Review
[Misfeasance in public office is the common law's only public law tort, because only public officials can commit it, and they must have acted unlawfully in the sense that they exceeded or misused a public power or position. This article examines who might be treated as a public official for these purposes, and whether the tort might extend to government contractors performing public functions. The article also discusses the tort's expansion beyond the familiar administrative law context of abuse of public power, to abuse or misuse of public position. Misfeasance tortfeasors must at the very least have been recklessly indifferent as to whether they were exceeding or abusing their public power or position and thereby risking harm. That parallels the mens rea ingredient of the common law's criminal offence of misconduct in public office, and reflects a further reason for restricting the tort's coverage to public officials, who must always put their self-interest aside and act in the public interest. Upon proof of the tort's fault elements, there beckons a damages vista apparently unconstrained by negligence law's familiar limitations upon claims for purely economic loss. This article questions the capacity of the 'recklessness' requirement to constrain claims for indeterminate sums from an indeterminate number of claimants, some of whom may have been only secondary (or even more remote) victims of the public official's misconduct. Finally, it questions (and finds wanting) the assumption common in Australia that government will not usually be vicariously liable for this tort. It argues that the personal wealth (or otherwise) of a public official should not set the boundary for a truly public tort. The article undertakes a comparative analysis of the law in Australia, New Zealand, England and Canada.]
CONTENTS I Introduction II The Modern Quartet of Leading Cases III Officials Behaving Outrageously: An Introduction IV Malice in Tort and Public Law V The Criminal Offence VI The Mental Elements of the Modern Tort: A Gradual Process of Dilution VII Actions for Breach of Duty: Which Duty? VIII The Limits of Negligence Law IX Rights, Wrongs and Duties X Moral Equivalence and the Variability of 'Recklessness' XI Must the Defendant Be Exercising a Public Function? XII The Defendant Must Be a Public Officer XIII Vicarious Liability Issues: A Public Purse for a Public Tort? XIV Suggestions
Misfeasance in public office is a very peculiar tort. It is generally regarded as the common law's only truly public tort, (1) because the only people who can commit it are those holding public office, (2) and the only occasions on which it can be committed are those in which public office-holders misuse their public power. (3) Because government's tort liability is usually judged by private law principles, there is no generalised common law right of action for damages for loss caused by invalid administrative action. (4) That is an absence that some have lamented, (5) although most have recognised that government liability for invalidity per se would be financially crippling (particularly in light of the rapid expansion of the grounds of invalidity for judicial review), as well as being counterproductive to good administration.
Law reformers have long sought to articulate factors additional to invalidity which might form a coherent and justifiable basis for a new right of action. (6) However, their calls for legislative reform along those lines have failed; indeed the political mood seems to be heading in the opposite direction. (7) Human rights legislation has created a new species of government liability for damages, but these are discretionary, and are assessed according to principles that are usually less generous than tort's aim of replacing the entirety of a loss with a monetary award. (8) Common law developments have been mixed. …