Contents

Chapter 3
Resolving central policy issues

Liability of the Crown in tort

Introduction

3.4Chapter 3 of the Issues Paper discussed three interrelated issues concerning the Crown’s liability in tort, which are:

(a) whether or not the Crown should be potentially liable in tort in its own right (directly liable);

(b) how the imposition of direct liability should affect the range of existing statutory provisions that effectively immunise the Crown by immunising individual employees from liability in tort; and

(c) whether the Crown’s liability in tort should be limited by statute or left to the courts to determine.

3.5In the Issues Paper, the Commission expressed preliminary views on these issues. The Commission took the view that the proposed new Crown Civil Proceedings Act should allow for the Crown to be potentially directly liable in tort in its own right as a consequence of placing the Crown in the same litigation position as others. We took the view also that, as part of the reform, existing statutory provisions that effectively prevent liability being found against the Crown, by immunising individual employees from liability in tort, might be redrafted to directly immunise the Crown where appropriate. Alternatively, the Bill could explicitly provide that all existing immunities give the Crown immunity. We also proposed that the Crown’s liability in tort should not be limited by statute, but should be left to the courts to determine.

3.6Here, we briefly recap on these issues and discuss the points made in submissions in response. Despite some concern expressed in submissions, we think there are advantages in continuing with the approach to direct liability as proposed in the Issues Paper and leaving the limitation of the Crown’s liability in tort to the courts. We have revised our thinking in respect of existing immunities and have concluded that they should be listed in a schedule to the Bill and should continue to immunise the Crown from liability in respect of the actions of a Crown employee. We have also made some changes to the original draft provisions included in the Issues Paper in order to address concerns raised in submissions.

Current law and problemsTop

Vicarious liability for employee acts and omissions

3.7Currently, someone who wants to sue the Crown in tort must fit their case into one of the categories prescribed in section 3 of the Crown Proceedings Act.12 This is different from other types of claims, including contract.

3.8The Crown Proceedings Act effectively establishes a bar against suing the Crown directly in tort with the exception of the very limited classes of claims available under sections 6(1)(b), 6(1)(c) and 6(2). This bar is felt most sharply in the case of negligence claims but applies equally to other torts. The Crown can only be held vicariously liable in tort for the acts and omissions of Crown employees. Consequently, in order to sue the Crown in negligence, a potential claimant must identify a particular Crown employee and allege that he or she has committed a tort. However, if no particular Crown employee has committed a tort or it is alleged that the government department as a whole has failed or it is claimed that a number of government departments have collectively failed, a person harmed (in circumstances where there would otherwise be legal redress) may be left without any redress against the Crown.

Crown reliance on employee immunity

3.9Currently, the vicarious nature of the Crown’s liability and the lack of direct liability for tort claims mean that statutory provisions that give immunity to Crown employees and other officers also immunise the Crown. Some statutes may have been drafted with the intention of immunising the Crown in this way, while for others the intention may have only been to immunise the employee. Immunity for the Crown may not be justified where it leaves a person who has been harmed no remedy in tort.

3.10As we discuss later in this chapter, section 86(1) of the State Sector Act 1988 gives Crown employees an immunity for actions undertaken in good faith in performance of their work. At the same time, section 6(4A) was inserted into the Crown Proceedings Act preserving the ability of those who had suffered harm to continue to pursue the claim against the Crown despite the Crown servant’s immunity in section 86 of the State Sector Act. However, this did not confer direct liability on the Crown, so a claim against the Crown must still be based on the vicarious liability of a Crown employee. Furthermore, section 6(4A) only applies to prevent the Crown taking the benefit of immunity under section 86 of the State Sector Act. It does not apply to other immunities given elsewhere on the statute book to Crown employees.

3.11Questions of immunity and liability are intertwined. The effect of some existing immunity provisions would change if claims could be brought directly against the Crown. Where vicarious liability is the only avenue of challenge available to a claimant, a provision that immunises a Crown employee will also protect the Crown from vicarious liability because the Crown enjoys the benefit of its employee’s immunity. The immunity will not apply if the Crown is directly liable unless these provisions are amended so that the Crown is also protected by a statutory immunity given to its employees.

Statutory limits on the Crown’s liability

3.12Section 6 of the Crown Proceedings Act excludes tort claims against the Crown except to the extent that they are permitted by the provisions of the Act. If section 6 was repealed, the situation would be the inverse. As long as they had a cause of action, a person could bring any claim against the Crown except where such a claim was prohibited by legislation (or other legal rule). Therefore, any limitation on the Crown’s liability in tort will need to be expressly provided for if section 6 is repealed.

Should the courts be able to find that the Crown could be directly liable in tort?Top

3.13There are good reasons for allowing the courts to recognise that, in appropriate cases, the Crown could be held directly liable in tort:

(a) Direct liability is conceptually cleaner and more consistent with the way in which the Crown is held accountable for its conduct (including the conduct of employees).

(b) Proceedings against the Crown will be simplified, as the Crown would be in the same position as other corporate entities that might potentially be sued directly.

(c) Direct liability might remove the potential for injustice that might arise where no one Crown servant can be said to have committed a tort as long as the court would otherwise find that the Crown would be legally liable.

Consistent with modern model of Crown accountability

3.14In the late 1980s, New Zealand moved to a new model of public service management mainly to clarify public accountabilities and responsibility.13 New Zealand’s reforms of the 1980s established formal straight-line accountability. Under the adopted model, public agencies were made more accountable to ministers and to Parliament who, in turn, were accountable to the voters who elected them.14 The approach placed emphasis on upward accountability to ministers rather than on accountability directly to members of the public who use public services.15
3.15Under the model, there is a chain of accountability with ministers at the head and chief executives accountable to their ministers but in charge of their departments, with explicit hierarchical reporting lines within departments.16 The result is that employees are primarily accountable upwards through the organisational hierarchy and are not independently accountable to the public.17 Crown employees in government departments are obliged to give an account of and answer to those further up the chain for their execution of the responsibilities that have been entrusted to them.
3.16Allowing the courts to potentially recognise direct liability is more consistent with this model of public service accountabilities and responsibilities. These formal chains of accountability do not normally include public servants being directly accountable to the public who are affected by the execution of responsibilities. This does not of course mean that public servants are not “answerable” to those affected by the execution of their responsibilities, in the sense of needing to be responsive to their needs and interests, explaining decisions, undertaking dialogue and providing information.18  It does mean that in order to hold the Crown liable, it will be possible to sue the Crown directly in tort rather than requiring a potential claimant to sue the particular Crown employee who made the decision that affected them. This is more conceptually consistent.

Simplification and clarification

3.17Potential claimants will no longer be forced to attempt to frame legitimate tort claims, sometimes artificially, around whether an individual public servant has committed a tort. Rather, the focus will be, as it ought to be, on whether the Crown ought to be responsible in damages for breaching its obligations. We emphasise that this change would not require a court to find the Crown liable; that will be left for the underlying law to determine. The change will simply make clear that direct liability is not precluded. For example, a claim in negligence would still require the court to consider whether a duty of care exists and whether it was breached. The advantage of the change is that the court will not be diverted to questions of vicarious liability or arguing about who is the proper respondent. We expect that there would continue to be the same judicial scepticism in recognising the existence of a duty of care in negligence for regulatory or administrative decision-making that currently exists.

3.18The simplification of direct liability will be of most benefit in cases where, for one reason or another, vicarious liability presents difficulties that do not go to the underlying appropriateness of finding the Crown liable. The exchange at the outset of the Couch19 Supreme Court hearing on 17 April 2007 and the apparent confusion between the bench, counsel for the Appellant and Crown Counsel as to whether the claim was one for vicarious liability for the actions of the individual probation officer or a claim for the direct liability of the Crown demonstrates the conceptual difficulties that arise in this field.20

3.19The Crown Law Office said in their submission that the arrangement entered into by the Crown and Mrs Couch was a response to the particular personal circumstances of the probation officer and that care must be taken not to place undue weight on the arrangement in that case. While we acknowledge that point, the case still demonstrates the conceptual difficulties that arise around having to prove vicarious liability for the actions of an individual employee. Couch more importantly illustrates the reality that lies behind our approach. It is the Crown’s obligation to make sure that the probation service operates effectively, and if there is to be legal liability, it should be the Crown’s. The very narrow duty of care that the Supreme Court accepted might exist illustrates the reluctance of the courts to recognise such a duty of care.

3.20A related issue is the potential for unfairness to Crown employees. Under the current law, an individual Crown employee must be named as defendant in a tort claim. In cases where Parliament has decided to place a duty of care or liability on an individual in respect of a particular function and where an appropriate indemnity is available, this is unobjectionable. However, where Parliament has not placed responsibility on an individual employee, a claimant must still target an individual employee, despite the fact that the claim might be one of systemic failure at its core.

Removing the potential for injustice

3.21The inability to sue the Crown directly in tort leaves a gap in the law. A plaintiff who is unable to identify a particular Crown servant or establish a case for vicarious liability is effectively barred from bringing a claim in tort against the Crown (outside those categories in section 6(1)(b) and (c) of the Crown Proceedings Act).21 The inability to even ask the court to determine whether or not the Crown owes a duty of care, let alone whether or not that duty was breached, has the potential to result in significant injustice.
3.22The depopulation of the Chagos Islands by the British in the 1970s to establish a US military base there demonstrates, albeit in an extreme way, the potential injustice that can result from being unable to ask a court to even consider if the Crown should be liable in tort.22 In 2002, a group of Chagos Islanders (comprising those born in the Chagos Islands and their children) unsuccessfully sued the United Kingdom Government in respect of their deportation from the Chagos Islands.23 The Court of Appeal refused the Islanders’ application for leave to appeal. The claim for exile and misfeasance in public office failed because, under English law, the State could not be a potential tortfeasor.24 The claims for deceit25 and vicarious liability of the Crown for misfeasance in public office26 were faced with evidentiary difficulties and also failed. The claimants were effectively left with no remedy in tort for the substantial harm they had suffered.

3.23Whatever the justice of the substantive case, it is the procedural bar on holding the Crown potentially liable that concerns us. The need to remove the potential for such an effect of the prohibition on the Crown being liable is, in itself, sufficient justification for reform. At its most basic level, the issue is one of fairness; a person harmed by the negligent action of the Crown, whether it be through a single Crown employee, multiple employees or a systemic failure, should be entitled to have that claim considered by the courts and not have the claim blocked by what is essentially a procedural matter. In New Zealand, claimants in this position would have to rely on the goodwill of the Crown and the willingness of the courts to be flexible in their approach to the restriction on direct liability. In our view, this is an insufficient response.

Views of submitters were considered

3.24In the Issues Paper, we asked submitters whether they agreed with the approach of making it possible for the Crown to be directly liable in tort. We asked also what, if any, difficulties they saw with the approach.

Submissions supporting our proposals

3.25The majority of submitters who responded to this question agreed with the proposal to allow direct liability in tort against the Crown. Professor Janet McLean said that the Crown can already hold land and enter contracts, so the issue was really more of a procedural one; who to serve and against which fund should judgment be awarded? Russell McVeagh considered that the presumption should be in favour of direct liability but acknowledged that there might be cases where expressly identified exceptions are justified. They said that, from the wronged person’s point of view, “the Crown is the Crown and there is no justice is foreclosing such a claim on technical grounds”. They made the important point that it would focus the argument on what the law should be rather than on whom the claim should be made against. It would also avoid the injustice that might occur where there is evidence of systemic failure that cannot be fairly attributed to Crown servants.

3.26The New Zealand Law Society (NZLS) said that allowing direct liability would clarify the law regarding the rights of people affected by decisions of the Crown. They thought the proposal would align the position of the Crown and Crown entities in tort so that people could expect clarity and consistency of treatment with respect to the tort liability of the Crown and Crown entities. The NZLS said that allowing direct liability would not affect the approach the courts would take when assessing whether or not the Crown should be liable in tort.

3.27The New Zealand Public Service Association (PSA) agreed that direct liability would be consistent with the principle that the Crown be subject to the same legal rules as private individuals and should be accountable to injured citizens for its actions. Direct liability would also prevent public servants from being unfairly targeted in order for a claim to proceed. They acknowledged that, in some cases, it might be necessary for the Crown to be immunised but that those instances should be carefully defined and limited to that which is necessary. They also highlighted the potential injustice faced by people wishing to bring claims relating to systemic failure by the Crown under the current law.

Concern proposal will extend Crown liability

3.28Although supportive of direct liability, the NZLS did raise a concern that the proposal might open the door for the Crown to be sued for policy decisions. The Crown Law Office was also concerned that allowing direct liability would extend the scope of Crown liability in tort in ways that the Law Commission did not intend. In particular, Crown Law is concerned that the proposal might open up a wide area of new Crown liability in the regulatory field. Crown Law’s submission takes a strongly risk-averse position. This may be understandable, given their role in minimising and managing the Crown’s legal risk, however, we think it overstates the possible risk of expanding Crown liability. Too much weight should not be given to what are really remote and almost theoretical risks.

3.29Our intention is not that the Crown would suddenly be liable in respect of policy choices or in regulatory fields where liability does not currently exist. An underlying cause of action (capable of resulting in liability) must already exist because we are not proposing new causes of action against the Crown. Our proposed approach deals with the ability of the Crown to sue and be sued. The possibility of direct liability will not generate new cases. It will simply allow cases to be brought that were previously prevented by a procedural bar that has little or no justification in modern New Zealand and has the potential to lead to considerable injustice.

3.30Allowing direct liability does mean that the Crown might be sued in cases where previously it would not have been, but this does not change the substantive law of tort. The approach removes an existing procedural impediment that has prevented people from bringing a claim. Without this impediment, the common law of torts in respect of Crown liability can continue to be developed by the courts over time in the same way as other aspects of the law of tort.

Development of the Crown’s liability by courts
3.31Crown Law considered that there are risks involved in leaving the development of the scope of the Crown’s liability to the courts. We do not share that concern. The courts are generally cautious of recognising new forms of liability where a public authority or public officer is performing a public function, and we would not expect a lesser degree of caution to be exercised should direct liability be authorised.27 Whether the courts recognise a novel duty of care will continue to depend on whether or not it is fair, just and reasonable to recognise a duty of care in the particular circumstance. The courts will always have regard to the nature of the relationship between the parties and the wider legal and policy issues that affect whether or not a duty of care should be recognised.28 Moreover, Parliament will remain able to set proper limits on liability in particular cases.
Australia and Canada

3.32We looked at the experience in countries that have direct liability to consider whether the concerns that Crown Law identified in their submission have eventuated. They have not, and we think that they are also unlikely to occur in New Zealand.

3.33Each Australian state, with the exception of Victoria,29 now makes the Crown directly liable in tort.30 For example, section 5 of the Crown Proceedings Act 1988 (NSW) provides:
(1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title “State of New South Wales” in any competent court.
(2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject.
3.34In 1976, the New South Wales Law Reform Commission firmly rejected the suggestion that the state ought to adopt the United Kingdom vicarious liability model. This is discussed in more detail in the Issues Paper.31 Additionally, Professor Anderson notes that the procedural difficulties advanced as reasons for not allowing direct liability in the 1950s have not eventuated.32
3.35In the Canadian context, we found no evidence to suggest that, in British Columbia (the only Canadian common law province to allow direct liability),33 those concerns have been borne out either. Further, in the other Canadian provinces that follow the United Kingdom model, the leading book on Crown liability suggests that the Canadian courts are reluctant to permit the Crown to avoid liability in tort by relying on the residue of Crown immunity that prevents direct tort liability of the Crown.34 In the opinion of the authors, the limitation on direct Crown liability in tort appears to be largely ignored, and the courts are proceeding on the basis that the Crown can be both directly liable and vicariously liable.35
Experience of public law compensation

3.36The Crown is directly liable for breaches of the New Zealand Bill of Rights Act 1990 (NZBORA). We have proposed that claims of a breach of NZBORA should be brought under the new Crown Civil Proceedings Act that we are recommending. Despite liability being direct, the courts have emphasised restraint in awarding compensation for breaches of NZBORA. Although there are some important differences between public law compensation and tort claims, the experience of judicial restraint in relation to public law compensation indicates that it is not a question of whether liability is “direct” that leads to expansion or restraint of liability but rather judicial determination of what substantive liability ought to be.

Torts other than negligence

3.37Crown Law said that our proposal had not fully analysed how direct liability would affect torts other than negligence. They referred to the torts of misfeasance, wrongful imprisonment, corporate defamation, corporate misfeasance and wrongful imprisonment.

3.38In our view, such analysis is unnecessary at this stage. The underlying doctrine of those torts is unaffected by the availability of direct liability. The courts will undoubtedly exercise great caution and give careful consideration to any novel cases that arise. The approach adopted by the New South Wales Supreme Court in Kable36 is a good example of the type of approach we think New Zealand courts will adopt in novel situations (as noted above, direct liability is allowed in New South Wales). In considering the claims for abuse of process, malicious prosecution and false imprisonment, the Court applied settled principles of tort law to what was a unique case.

3.39Crown Law also submitted that our proposal would appear to make it possible for the Crown to be sued as some sort of conglomerate of related companies – a step rarely, if ever, available in private litigation.

3.40We think that the Crown is in quite a different position to a group of related companies. The bodies that make up the Crown are not merely related, they are part of the same whole, and this should be recognised. We are not suggesting that the Crown should be liable for the actions of bodies, such as Crown entities, which have their own capacity to sue and be sued and which have quite deliberately been removed from the central Crown. However, within the Crown itself, there is only one Crown, and this should be reflected.

Approach in the Crown Civil Proceedings Bill

3.41We remain of the view that the court should be able to hold the Crown directly liable in civil proceedings, regardless of whether or not an individual Crown employee is found liable. Although the possibility of direct liability is a logical consequence of the core procedural reforms in this review, namely that the Crown has its own legal personality for the purposes of civil proceedings and may sue and be sued as an ordinary person, clause 8 of the Bill draws attention to the change:

8 Tort liability of the Crown

A court may find the Crown itself liable in tort in respect of the actions or omissions of Crown employees despite any immunity of those employees.

3.42We have also included sub-clause 3(c) (the purpose clause):

3 Purpose

The purpose of this Act is to clarify and reform the law about civil proceedings involving the Crown, including by—
(c) providing that the Crown may itself be directly liable in tort (rather than only vicariously liable):

Amending existing provisions that immunise the CrownTop

3.43As already outlined above, many existing statutory provisions effectively immunise the Crown. This is because the Crown’s liability is vicarious, and the Crown is entitled to rely on an employee’s indemnity. Where the Crown is instead potentially directly liable for a tort claim, existing statutory provisions that give Crown employees immunity will not protect the Crown. This means that many existing statutory provisions that give immunity to Crown employees and other officers will no longer immunise the Crown and will need to be redrafted in order to provide the Crown immunity against direct liability.

3.44Many of the existing immunity provisions have intentionally been drafted and then enacted on the basis that, by immunising the Crown employee, the provision does also vicariously immunise the Crown. However, that will no longer be the position unless those immunity provisions are amended or the effect of immunising the Crown is preserved in some other way.

Approach in clause 15 of the Bill

3.45We recommend that existing immunity provisions that apply to Crown employees and that have the effect of immunising the Crown should continue to apply to immunise the Crown against liability. To address the possibility of direct liability, clause 15 of the Bill expressly applies the existing provisions to the Crown by providing:

15 Existing immunity provisions

An existing immunity provision listed in Schedule 2 immunises the Crown from liability in civil proceedings in respect of the actions or omissions of a Crown employee in the same way as it would immunise the employee.

3.46The Bill at present contains some illustrative examples of provisions of the sort that would be included in Schedule 2. Careful consideration should be given to ensuring that Schedule 2 only includes provisions that immunise the Crown where this is consistent with the purpose of existing provisions. This deserves further careful scrutiny to ensure it reflects the status quo and does not unintentionally create new immunities.

3.47We think the approach we have taken here, of seeking to maintain existing immunities, is the most consistent with the essentially procedural nature of the reforms in the Bill. In future, against the backdrop of direct liability of the Crown, Parliament will need to consider whether or not to grant immunity to the Crown or whether it should only be granted to Crown employees and how to appropriately word such new provisions.

Restrictions on Crown liabilityTop

3.48In the Issues Paper, we proposed that the Crown’s liability in tort should not be limited by statute but should be left to the courts to determine. We gave particular attention to section 6(2) of the Crown Proceedings Act. The intention of that section would seem to be to exclude liability in fields where the Crown provides a service that is not also provided by private individuals. However, as we noted, the provision has most recently been interpreted as enabling claims alleging breaches of statutory duties to be brought against the Crown.

3.49We consider section 6(2) to now be ineffective and no longer necessary. We do not consider it appropriate to try and impose a general statutory limit on the kind of liability that the Crown may be subject to. The courts should continue to develop the common law and decide whether to recognise new duties of care or types of negligence when claims are brought against the Crown. The policy/operational distinction most famously articulated in Anns37 will continue to be refined and debated by the courts, and new duties of care may be recognised. In cases where the distinction between policy and operational matters is not clear cut, it is appropriate to leave the matter to the courts to determine.

Approach taken in the Bill

3.50The revised Bill does not make it more or less likely that courts will extend the scope of tort liability for administrative failings, nor does it increase the likelihood that there will be a “public law of torts”. Whether a statutory duty should give rise to a tort of breach of statutory duty or a claim for breach of a common law duty of care should either be addressed in the specific Act imposing that statutory duty, or if it is not, it should be determined by the courts. It is not appropriate to seek to impose a general statutory limit on the kind of tort liability that can be found against the Crown in a new Crown Civil Proceedings Act, which is otherwise a procedural statute.

3.51We propose not replacing section 6(2) with an equivalent provision in the new Act as we do not consider it necessary.

Recommendations

R2The Crown should be able to be sued in tort as a private individual and be held directly liable.
R3Existing immunity provisions that apply to Crown employees and that currently have the effect of immunising the Crown should be included in a schedule in the new Act and continue to apply to immunise the Crown against liability.
R4The substantive law of torts, including what kinds of torts the Crown should be liable for, should continue to be developed by the courts. We are not recommending a legislative response at this time.
12Crown Proceedings Act 1950, s 3(2)(b).
13Richard Mulgan “Public Sector Reform in New Zealand: Issues of Public Accountability” (2008) 32(1) Public Administration Quarterly at 1.
14At 9.
15At 9.
16Jonathan Boston and Derek Gill Joint or Shared Accountability: Issues and Options (Institute of Policy Studies, Working Paper 11/03, June 2011) at 4.
17Mulgan, above n 13, at 9.
18Boston and Gill, above n 16, at 5.
19Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 [Couch (No 1)].
20Couch (No 1) SC Transcript, 17 April 2007 at 11.
21Crown Proceedings Act 1950: ss 6(1)(b) and 6(1)(c) allow direct liability in two very limited sets of circumstances. The first, under s 6(1)(b), relates to claims arising from the Crown’s duties as an employer; the second, under s 6(1)(c), relates to claims arising from the Crown’s duties as an owner and occupier of land.
22We do not repeat the allegations made by the Chagos Islanders against the United Kingdom Government. It is part of the historical record and is discussed in detail in: Bancoult, R (on the application of) v Secretary of State for the Foreign & Commonwealth Office [2000] EWHC 413 (Admin); Chagos Islanders v Attorney-General, Her Majesty’s British Indian Ocean Territory Commissioner [2003] EWHC 2222 (QB) [Chagos QB]; Chagos Islanders v Attorney-General [2004] EWCA Civ 997 [Chagos CA]; Bancoult, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2006] EWHC 1038 (Admin).
23The claimants sought from the High Court: 1) compensation and restoration of their property rights in respect of their unlawful removal or exclusion from the islands; and 2) declarations of their entitlement to return to all Chagos Islands and measures facilitating their return: Chagos QB, above n 22.
24At [20].
25At [32].
26At [28].
27At [80].
28Couch (No 1), above n 19, at [78] and [79].
29Susan Kneebone Tort Liability of Public Authorities (LBC Information Services, North Ryde, NSW, 1998) at 285. Kneebone argues that Victoria’s legislation is distinguishable from the other Australian jurisdictions because the Crown’s liability in tort is limited to vicarious liability.
30Mark Aronson “Government liability in negligence” (2008) 32 MULR 2009 at 44.
31Law Commission A New Crown Civil Proceedings Act for New Zealand (NZLC IP35, 2014) at 12.
32Anderson, Stuart, above n 6 at 21.
33Crown Proceeding Act, RSBC 1996, c 89 s 2(4).
34Peter W Hogg, Patrick Monahan and Wade K Wright Liability of the Crown (4th ed, Toronto, Ontario, 2011) at 185.
35An example of a case where the judge noted the difference between direct and vicarious liability is Williams v Canada [2005] 76 OR (3d) 763.
36Kable v State of New South Wales [2012] NSWCA 243. The High Court of Australia subsequently held that the Court of Appeal was wrong in its finding of false imprisonment on the grounds that the judicial order in question did provide lawful authority for detention. The High Court did not, however, query the general approach adopted to assess liability.
37Anns v Merton London Borough Council [1978] AC 728 (HL) at 754.