Chapter 3
Tort law and Crown liability


3.1This chapter deals with three problematic and connected issues relating to the Crown’s liability in tort. The first part considers whether, in addition to the Crown’s current vicarious liability for tort, the Crown ought to potentially be liable in its own right in tort, as it can be for breach of contract. Our preliminary conclusion is that the new Bill should recognise the possibility of direct liability as a consequence of placing the Crown in the same litigation position as others. The second part addresses the effect that such direct liability would have on the statutory provisions that currently effectively immunise the Crown by virtue of immunising individual employees from liability in tort. Our preliminary position is that as part of this reform, those immunities should be recast where appropriate to immunise the Crown. Thirdly, it considers whether there ought to be any stated principle limiting the liability of the Crown in tort. Because this Act is procedural rather than substantive, our preliminary conclusion is that such limitation principles are best left to the courts to continue to develop as they have in the past.