Document Type

Article

Publication Date

2010

Keywords

tort, conservatism, public authorities, negligence, ideology

Abstract

There has been a notable shift in the scope of negligence liability of public authorities in the Post War period. Notably there was a trend toward restriction of liability in the 1980s. This essay tries to explain why this happened not by focusing on changing legal formulas but by examining the political context of the law in this area. I begin the essay by demonstrating how changes in the attitudes toward the role of the state have led to the changes in the law in this area. I then go on to examine the impact of Thatcher’s ascent to power. Some commentators have suggested that the restriction in liability that took place during the years of her premiership was the result of the impact of Thatcherite ideology on the courts. I consider why such an ideology might be used (and has been used) to justify restriction of liability on public authorities, but argue that such arguments are quite different from those actually found in court decisions at the time. Though founded on ideas that may also be called broadly ‘conservative’, they do not reflect the distrust of state institutions typical in New Right writings, but are rather based on great respect for them, a view that reflects a different strand of conservatism. I demonstrate this attitude from the cases and offer some explanations for its possible adoption by the courts.

Comments

Warwick School of Law Research Paper No. 2010/14

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