Public authority liability and the heteronomy of tort law

In recent years, the highly restrictive attitude taken by English courts to public authority liability has found a parallel in the arguments of rights theorists who have promoted a conservative reading of tort law. In the view of the rights theorists, there cannot be tortious liability for a wrong committed by a public authority unless the wrong might equally well have been committed by a private person. Two kinds of argument have been advanced to support this view.The first is that the interests infringed by wrongful acts of public authorities that lack a private analogue are not protected by the primary rights that form the subject of matter of tort law. The second is that tort law is concerned with corrective justice and public law with distributive justice and the two should therefore not be allowed to mix. This article attempts to rebut both kinds of argument and to show that there is nothing in the basic nature of tort law that makes it inappropriate to use it to deal with public law wrongs.