The Policy/operational Dichotomy in Intra-State Tort Liability: An Example of the Ever-Continuing Transformation of the Common Law
Woodfield, Nicholas W., Denver Journal of International Law and Policy
England and several States that were once part of its empire (including the United States, Canada, Australia, and New Zealand) have, in the twentieth century, legislatively waived their common law immunity to certain civil actions filed by citizens who are seeking to recover damages caused by the negligence of the State and/or its servants.(1) This voluntary partial waiver of sovereign immunity now subjects these States to potential liability in an effort to provide the States' citizens with redress for previously unrecoverable damages. And while it was the intent of legal reformers to cause these States to be treated in their own courts in a manner that would be indistinguishable from the treatment accorded to any other party submitting to the jurisdiction of the courts, nevertheless it is crucial to note that certain public policy considerations continue to prevent the complete abandonment of this doctrinal immunity.
Further, the ever-continuing judicial interpretation of the scope of the waiver immunity in the respective courts in these countries virtually guarantees that the delineation of the common law doctrinal defense will continue to evolve in an effort to better reflect the contemporary social, political, and economic values peculiar to each dynamic society. This is because each of the aforementioned countries is working toward an identical goal of securing for its citizens, by means of the application and transformation of their respective common law interpretations of the scope of the waiver, justice, which has been defined as being "a matter of the right outcome of the political system: the right distribution of goods, opportunities, and other resources."(2) Epitomizing the comparative interpretation of the scope of the waiver, a "policy/operational dichotomy" has been introduced in the respective bodies of common law interpreting the scope of the waiver of immunity in the United States, England, Canada, Australia, and New Zealand as each of the forgoing has attempted to distinguish which tort liability actions are justiciable pursuant to their respective waiver efforts and which are not. It is important to observe that all of the aforementioned States have also struggled with the same enigma that has plagued the application of the policy/operational dichotomy since the United States Supreme Court first articulated the delineation in Dalehite v. United States, i.e., the demarcation of where policy or discretionary considerations (and immunity) end and where operational activities (and tort liability) begin.(3)
This article will analyze the common law origins of the defense of sovereign immunity in the legal systems of England, the United States, Canada, Australia and New Zealand, and it will recognize and address the common, recurring themes characterizing the waiver of immunity as evidenced in the policy/operational dichotomy. More importantly, it will demonstrate that the development of this distinction is an example of the ever-continuing evolution of the common law. Finally, a pragmatic mechanism aiding in the resolution of the policy/operational dilemma in all five of the aforelisted jurisdictions will be suggested and commented upon. The efficacy of this suggestion will justify the conclusion that a legal doctrine originating in a germinating body of common law will uniformly evolve toward the conceptual goal of justice in derivative legal systems regardless of its development in separate and distinct societies.(4)
II. THE EVOLUTION OF THE COMMON LAW
As the common law in England developed its own identity out of a meld of Roman law and German customs, the resulting body of laws reflected social, political and economic factors that comprise English societal history. And as England and the States sharing its common law heritage continued to develop and evolve, their bodies of laws have continued to develop with them by perpetually reflecting and incorporating the evolutions and influences inherent in the growth of each nation. …