Canada, England, and South Africa face a similar challenge arising from their shared Diceyan heritage in public law. On the one hand, public bodies and officials in these jurisdictions are bound by the ordinary law of the land applied by ordinary courts, including the private law of tort. On the other hand, the state also owes positive obligations to provide a range of services and protections to members of the public that individuals do not bear, arising from constitutional and administrative law. Where the state breaches its distinctive responsibilities by failing to protect an individual, who as a result is harmed and seeks recompense, a question arises as to the proper law to apply. What then is the relationship between the state’s duties and liabilities in tort and constitutional law? The three legal systems under consideration have answered this question in subtly different ways. The English courts have been unwilling to adjust private law to take account of the state’s special duties. In tort law, public defendants are held to the same standards as private individuals, who are liable for omissions only exceptionally. State liability for breach of positive duties to protect human rights arises instead under the Human Rights Act 1998, where courts have a discretion to award compensation alongside declarations and other public-law remedies. South Africa, by contrast, has to a large extent fused private law and constitutional law in this context. Novel private law duties and liabilities may be grounded on the need to hold the state accountable for breaching positive constitutional duties. As a result, the standalone remedy of constitutional damages is comparatively underdeveloped. Canada, it appears to me, has avoided both extremes: the courts have developed a narrow range of uniquely public duties of care in tort while also recognising that constitutional damages may be just and appropriate to compensate loss, vindicate rights, or deter Charter violations where tort (and other) remedies are insufficient. These varying responses to a shared challenge bring the following issue into sharp focus: to what extent can and should tort law be instrumentalised to serve the social goals of constitutional law?
Alistair Price is an Associate Professor in the Department of Private Law at the University of Cape Town (UCT). He received a BBusSc (distinction) and LLB (magna cum laude) from UCT, a Bachelor of Civil Law (distinction) from University College, Oxford, and a PhD from Gonville and Caius College, Cambridge. His thesis was entitled The Influence of Human Rights on State Negligence Liability in England and South Africa and, in 2014, he was awarded a prestigious Yorke Prize by the Cambridge Law Faculty for making ‘a substantial contribution’ to knowledge. Before his appointment at UCT, he worked as a research clerk for Chief Justice Pius Langa at the Constitutional Court of South Africa and as a research assistant to Professor Reinhard Zimmermann at the Max Planck Institute for Private Law in Hamburg, and taught tort law for several colleges at Cambridge University. Research interests: the law of obligations (primarily delict/tort); constitutional and administrative law; comparative law.
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