LAWHONS 742A/B : Public Authority Liability

Law

2020 Semester One (1203) / Semester Two (1205) (20 POINTS)

Course Prescription

Covers the various public and private law bases for monetary liability of public authorities (with a focus on Torts); the doctrinal and policy debates surrounding such liability; the uncertain interface between private and public law.

Course Overview

Course content:
This seminar concerns the monetary liability of public authorities, that is liability to pay damages or compensation, with a focus on tort liability.  Public authorities frequently cause loss to private individuals or entities by their decisions, or fail to use their powers to protect private individuals or entities against harm.  Often that is entirely lawful and proper (e.g. imposition of taxes), but sometimes it results from unlawful or wrongful decisions or conduct.  While public law controls on the legality of exercises of public powers are well developed and largely well understood, monetary liability to compensate for such losses is both much more limited and much less well settled.

Our focus will be on the issues and debates that result from the uncertain interface between public and private law principles in this area.  Liability is usually governed by private law principles such as the law of tort.  Yet where claims arise from the exercise (or failure to exercise) public powers, public law principles are equally relevant.  The most appropriate balance or mix of the often conflicting objectives and doctrinal structures of private and public law is a matter of continuing debate, leading to much doctrinal instability and confusion.  For instance, is the objective of damages awards against public authorities redressing harm to individuals or holding authorities accountable?  To what extent should liability depend on, or necessarily flow from, making out public law grounds of unlawfulness?  We will encounter these sorts of issues in the context of the various available bases of public authority liability.

Delivery:
This Seminar is entirely discussion-based – apart from the odd short introductory talk, I will not give lectures.  That means that the seminar will stand or fall depending on your participation: you simply have to get in there and give it a go (and that in turn requires preparation).  If you do, I am sure you will find the seminar that much more rewarding.  I look forward to plenty of interesting discussions.

As a central component of this course, you will plan, research and write an Honours Seminar Research Paper, a task that will extend across both semesters. Much of the second semester will be given over to your presentations of your draft papers and discussion of these. I have designed the process to be as close as possible to academic practice in preparing research papers for publication: you will choose and develop a topic, write a draft, circulate your draft for reading, give a presentation on your draft, receive comments, and then revise your draft for final submission. You will also provide comments on a classmate’s draft.

Draft schedule of first semester seminar sessions:

Seminar 1:  5 March   
Introductory Discussion
Introducing the course, each other, writing research papers
   
Part A: Beyond the Equality Principle: Special liability

Seminar 2:  12 March   
Misfeasance in Public Office

Seminar 3:  19 March   
Bill of Rights Compensation

   
Part B: The Limits of the Equality Principle

Seminar 4:  26 March   
Consequences of Invalid Exercise of Lawful Authority

Seminar 5:  2 April   
Special Immunities
   
Part C: Research methodology

Seminar 6:  9 April   
Designing, researching and writing a research paper

Easter break   
   
Part D: Negligence Liability of Public Authorities

Seminar 7:  30 April   
Omissions or Failure to protect

Seminar 8:  7 May   
Policy Considerations

Seminar 9:  14 May   
Accommodating Public Authority Discretion
   
Part E: Beyond existing bases of liability?

Seminar 10:  21 May   
Administrative Law Damages?

Seminar 11:  28 May   
French Risk and Equality Principles

Seminar 12:  4 June   
Direct liability of the Crown in Tort?

Course Requirements

Restriction: LAW 466, LAWGENRL 450, LAWPUBL 450 To complete this course students must enrol in LAWHONS 742 A and B

Capabilities Developed in this Course

Capability 1: Disciplinary Knowledge and Practice
Capability 2: Critical Thinking
Capability 3: Solution Seeking
Capability 4: Communication and Engagement
Capability 5: Independence and Integrity
Capability 6: Social and Environmental Responsibilities

Learning Outcomes

By the end of this course, students will be able to:
  1. Engage with the work and views of other class members by participating in class discussion, and by providing written feedback on their work (Capability 2.1, 2.2, 4.1, 4.2, 4.3 and 6.2)
  2. Describe accurately the doctrines, principles, concepts, theories and case law (the body of knowledge) relating to public authority liability (Capability 1.1, 1.2 and 2.1)
  3. Use use that body of knowledge to construct a logical sequence of issues arising out of the particular problem, selecting only the most relevant aspects of that body of knowledge (Capability 1.1, 1.2, 2.1, 2.2, 2.3, 3.1, 3.3, 4.1, 5.1 and 5.2)
  4. Apply those relevant aspects of the body of knowledge to analyse and solve each of the issues arising (Capability 1.1, 1.2, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4.1, 4.2, 5.1 and 5.2)
  5. Identify and discuss shortcomings of a doctrinal or policy nature in aspects of that body of knowledge, and to develop proposals for improvements (Capability 1.1, 1.2, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4.2, 5.1, 5.2, 6.1, 6.2 and 6.3)
  6. Evaluate competing positions on contentious issues in a balanced fashion, demonstrating awareness of the scope for reasonable disagreement on those issues (Capability 1.1, 1.2, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4.2, 5.1, 5.2, 6.1, 6.2 and 6.3)
  7. Develop your own position on issues arising (Capability 1.1, 2.1, 2.2, 2.3, 3.2, 3.3, 4.2, 5.1, 5.2, 6.1, 6.2 and 6.3)
  8. Articulate your thoughts and arguments both orally and in writing, and listen attentively to other points of view (Capability 1.1, 2.3, 4.1, 4.2, 4.3, 5.1 and 6.2)
  9. Create a research paper by choosing your own topic, carrying out detailed research on it, constructing a cogent argument about it, and articulating that argument in clear writing. (Capability 1.1, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4.1, 4.2, 5.1, 5.2, 6.1, 6.2 and 6.3)
  10. Present (orally) your draft research paper to the class, using your choice of visual aids as appropriate, then lead class discussion and answer questions about it. (Capability 1.1, 1.2, 2.1, 2.2, 2.3, 3.1, 3.2, 3.3, 4.1, 4.2, 4.3, 5.1, 5.2, 6.1, 6.2 and 6.3)

Assessments

Assessment Type Percentage Classification
Research paper 70% Individual Coursework
Written response to materials and questions for one seminar 10% Individual Coursework
Written comments on a classmate 5% Individual Coursework
Presentation of your draft research paper 10% Individual Coursework
Class participation 5% Individual Coursework
In-class early feedback exercise 0% Individual Coursework
Assessment Type Learning Outcome Addressed
1 2 3 4 5 6 7 8 9 10
Research paper
Written response to materials and questions for one seminar
Written comments on a classmate
Presentation of your draft research paper
Class participation
In-class early feedback exercise
As this is a discussion-based course with no final exam, attendance is compulsory.

Learning Resources

Required readings will be provided via the  reading list on Canvas.

Workload Expectations

This is a 20-point course (10 points per semester). There will be around 48 hours of seminar sessions in this course. The guideline for the total workload for this course is 200 hours.  The workload will vary as between the first and second semesters. 
For each weekly seminar session in the first semester, the expectation is that you will spend approximately 4 hours preparing for class discussion. In the second semester, preparation for each session should take only 1 – 1 ½ hours.  The remaining hours will be needed for your assessment tasks.  The time commitment in planning, researching and writing your Honours Seminar Research Paper should be around 80 hours across both semesters.

Digital Resources

Course materials are made available in a learning and collaboration tool called Canvas which also includes reading lists and lecture recordings (where available).

Please remember that the recording of any class on a personal device requires the permission of the instructor.

Academic Integrity

The University of Auckland will not tolerate cheating, or assisting others to cheat, and views cheating in coursework as a serious academic offence. The work that a student submits for grading must be the student's own work, reflecting their learning. Where work from other sources is used, it must be properly acknowledged and referenced. This requirement also applies to sources on the internet. A student's assessed work may be reviewed against online source material using computerised detection mechanisms.

Inclusive Learning

All students are asked to discuss any impairment related requirements privately, face to face and/or in written form with the course director, lecturer or tutor.

Student Disability Services also provides support for students with a wide range of impairments, both visible and invisible, to succeed and excel at the University. For more information and contact details, please visit the Student Disability Services’ website at http://disability.auckland.ac.nz

Special Circumstances

If your ability to complete assessed coursework is affected by illness or other personal circumstances outside of your control, contact a Student Academic and Support Adviser as soon as possible before the assessment is due.

If your personal circumstances significantly affect your performance, or preparation, for an exam or eligible written test, refer to the University’s aegrotat or compassionate consideration page: https://www.auckland.ac.nz/en/students/academic-information/exams-and-final-results/during-exams/aegrotat-and-compassionate-consideration.html.

This should be done as soon as possible and no later than seven days after the affected test or exam date.

Student Feedback

At the end of every semester students will be invited to give feedback on the course and teaching through a tool called SET or Qualtrics. The lecturers and course co-ordinators will consider all feedback and respond with summaries and actions.

Your feedback helps teachers to improve the course and its delivery for future students.

Class Representatives in each class can take feedback to the department and faculty staff-student consultative committees.

Student Charter and Responsibilities

The Student Charter assumes and acknowledges that students are active participants in the learning process and that they have responsibilities to the institution and the international community of scholars. The University expects that students will act at all times in a way that demonstrates respect for the rights of other students and staff so that the learning environment is both safe and productive. For further information visit Student Charter (https://www.auckland.ac.nz/en/students/forms-policies-and-guidelines/student-policies-and-guidelines/student-charter.html).

Disclaimer

Elements of this outline may be subject to change. The latest information about the course will be available for enrolled students in Canvas.

In this course you may be asked to submit your coursework assessments digitally. The University reserves the right to conduct scheduled tests and examinations for this course online or through the use of computers or other electronic devices. Where tests or examinations are conducted online remote invigilation arrangements may be used. The final decision on the completion mode for a test or examination, and remote invigilation arrangements where applicable, will be advised to students at least 10 days prior to the scheduled date of the assessment, or in the case of an examination when the examination timetable is published.

Published on 20/12/2019 09:58 a.m.