Report No. 01

37. Section 2(4) - Discretionary powers.-

Section 2(4) substitutes the Crown for a Government department or officer of the Crown in cases in which the liability of such department or officer was negatived or limited by any enactment. In other words, in respect of torts committed by a department or officer the liability of the Crown is exactly the same as the liability of the department or officer before the Crown Proceedings Act, 1947. The Act is silent regarding discretionary powers, probably for the reason that under common law a public officer is not liable in the absence of negligence causing additional damage in the exercise of discretion.1

1. East Suffolk Rivers Catchment Board v. Kent, 1941 AC 74.