THE ROLE OF DAMAGES IN PUBLIC LAW
The intentional torts
1. In early days actions for damages were a means of bringing the government
(through its officers) to account: see Dr Bonham’s Case 77 Eng. Rep.638 for an
early precedent.
2. The typical pattern was the commission of an intentional trespass to person or
property with a plea of justification. If the plea failed because there was no lawful
justification, those committing the trespass were liable in the ordinary way.
3. Cases of this type can still have contemporary importance: see R v Governor of
Brockhill Prison ex parte Evans (No 2) [2001] 2 AC 19; D v Home Office [2006]
1WLR 1003, CA. Liability is strict unless there is a statutory exception.
Negligence
4. The growth of liability for negligence began to create difficult issues which are still
with us. Could the same approach apply here? Could public authorities be liable
for negligent conduct under the same conditions as applied to ordinary citizens?
5. Where the public authority causes direct physical damage it is liable like anyone
else: see Buxton LJ in Perrett v Collins [1998] 2 Lloyd’s Rep. 255, CA. The
difficult cases concern, first, economic loss (although see A v Secretary of State
for the Home Department [2004] EWHC 1585) and indirect damage, that is,
damage caused not directly by the public authority but by some third party, such
as the borstal boys in Home Office v Dorset Yacht Co Ltd [1970] AC 1004, or
some natural phenomenon, such as the physical obstruction in Stovin v Wise
[1996] AC 923. In these case should the state be treated differently, on what
basis, and for what?
6. Difference in treatment is often defended by reason of:
