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- Title
Systemic Negligence and Direct Crown Liability: Conceptualising Issues of Justiciability, Proximity and Breach.
- Authors
HAY, MADELEINE
- Abstract
In New Zealand, systemic negligence claims present a particular challenge to the Crown Proceedings Act 1950, and to the law of negligence. The Act does not provide for direct liability of the Crown, leaving plaintiffs who cannot frame their claim in terms of vicarious liability without a remedy. In this article, I argue that addressing this justice gap requires more than merely legislative change because systemic negligence claims raise significant conceptual issues in the areas of justiciability, proximity and breach. However, I conclude that none of these "doctrinal hurdles" presents a complete bar to systemic negligence claims. Justiciability will generally be available for decisions not to fix fundamental flaws in established Crown systems, while claims involving a static, physical hazard are likely to succeed on the current approach to proximity. Moreover, I argue that courts should also take an active role in shaping the law in this area by adopting a "policy approach" to proximity, and by embracing Christian List and Philip Pettit's theory of group agency. While these approaches may be novel and rather ambitious, they offer a conceptually clean way forward: towards a robust doctrine of direct liability.
- Subjects
NEW Zealand; GOVERNMENT liability; NEGLIGENCE; CRIMINAL justice system; JUSTICIABILITY (International law)
- Publication
Te Mata Koi: Auckland University Law Review, 2019, Vol 25, p57
- ISSN
0067-0510
- Publication type
Article