Public Authority Liability in the Regulatory State
Date: March 4, 2026 (Wednesday)
Time: 12:30pm – 1:30pm
Venue: Rm 723, Cheng Yu Tung Tower, HKU
After some years of uncertainty, the UK Supreme Court has landed on a clear position with respect to negligence liability of public authorities: the duties of public authorities are the same as those of any other person in the same situation. The practical effect of this position is that generally speaking public authorities are liable only for making things worse, but not for failing to prevent harm. Despite academic criticism, the UK Supreme Court has reaffirmed this view in recent decisions. My paper provides yet another challenge for this position. I hope to advance the discussion in three ways. First, it argues that the nature of government obligations should be understood not in terms of some general moral obligation to help others, but in terms of the changing role of the state in the course of the last century. Second, it shows how courts’ favouring a ‘principled’ answer in this context creates an inherent bias against liability. Against this, the paper calls for a more nuanced approach to the question of government liability. Finally, it argues that the much-maligned distinction between policy and operational decisions is in line with general negligence doctrine and provides a plausible articulation of a nuanced approach to the question of negligence liability of public authorities.
Dan Priel is a Professor of Law at the City University of Hong Kong. Prior to that, he was a Professor of Law at Osgoode Hall Law School, York University, Canada. His current research interests include legal theory, private law (especially tort law and restitution), and he is also interested in legal history and in the application of the social sciences, in particular psychology, to legal research. His published work appeared in American Journal of Comparative Law, American Journal of Jurisprudence, Law and Philosophy, Legal Theory, Modern Law Review, Oxford Journal of Legal Studies, Texas Law Review, and Virginia Law Review.
Moderator: Peter Chau, Associate Professor, The University of Hong Kong Faculty of Law