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Report No. 01

15. Crown Proceedings Act.-

The Crown Proceedings Act altered the law relating to the civil liability of the Crown in many respects. We are concerned here only with the question of the extent to which the Crown was made liable under the Crown Proceedings Act for torts. The relevant provisions relating to this topic are sections 2, 3, 4, 5, 6, 7, 9, 10, 11, 38, 39 and 40.

These provisions may be classified under three heads:

(1) liability of the Crown under common law;

(2) liability for breach of statutory duties and powers;

(3) exceptions under the Act exonerating the Crown from liability.

16. The doctrine that the "The King can do no wrong" which is a relic of the old feudal system and on which the immunity of the Crown was based, was not entirely abrogated by the Act. Under the Act the extent of the liability of the Crown in tort is the same as that of a private person of full age and capacity. The Bill of 1927 used the expression "act, neglect or default" while the word "tort" is used in section 2(1) of the Act. The alteration of the language is, no doubt, deliberate.

Act, neglect or default would apply to tort as understood under common law and to breaches of statutory duties as well. Section 2(1)(a), (b) and (c) refer to the liability for tort under common law. Some of the principles of common law were modified by statutes. Whether the statutory modifications are also attracted by referring to common law in section 2(1) of the Act, may be a question that would arise in the construction of the Act.

But as section 2(1) opens with the words "that the Crown shall be subject to all those liabilities in tort to which if it were a private person of full age and capacity it would be subject", there may not be room for argument that the statutory modifications will not be attracted, the liability of the Crown being equated to that of a private person. For example, the Fatal Accidents Act, which gives a cause of action in case of death does not bind the Crown but expressly modifies the common law rule that an action dies with the person. Under that Act, a private person would be liable to the dependants of the deceased who was wronged and there is no reason to exclude the liability of the Crown in such an event.

17. There is no scientific definition of "tort" and it is not possible to give one. The learned authors Clark & Lindsell on Torts (Eleventh Edition) prefer the definition given by Winfield, viz.,

"Tortious liability arises from the breach of a duty primarily fixed by the law, such duty is towards persons generally and its breach is redressible by an action for unliquidated damages."1

1. Clerk & Lindsell on Torts, 11th Ed., p. 1.

Liability of the State in Tort Back

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