Dear Colleagues:

Those of you interested in the interface between private law and

statutes may find the following useful:

Scott Wotherspoon,  TRANSLATING THE PUBLIC LAW "MAY" INTO THE COMMON LAW

"OUGHT': THE CASE FOR A UNIQUE COMMON LAW CAUSE OF ACTION FOR STATUTORY

NEGLIGENCE (May 2009) 83 Australian Law Journal 331  

                                                                                   

 Abstract: The law of negligence as it relates to public authorities

that fail to exercise statutory powers to prevent harm is complex and

important. This article proposes that every inquiry concerning the duty

of care question should pass over a four stage analysis, one of which

involves asking whether the failure to exercise the power was ultra

vires or Wednesbury irrational in a public law sense. If the four stage

analysis is followed, it will be possible to resolve negligence cases by

reference to criteria of some specificity and in a manner which

maintains coherence with an authority's public law obligations. The

roots of the proposed test are orthodox and of longstanding. They can be

traced from Lord Diplock's speech in Dorset Yacht Club Co Ltd v Home

Office [1970] AC 1004 and Gibbs CJ's reasons in Sutherland Shire Council

v Heyman (1985) 157 CLR 424.

  All the best,

--

Jason Neyers

Associate Professor of Law &

Cassels Brock LLP Faculty Fellow in Contract Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435