Misfeasance in public office is the common law's only public law tort, because only public officials can commit it, and they must have acted unlawfully in the sense that they exceeded or misused a public power or position. This article examines who might be treated as a public official for these purposes, and whether the tort might extend to government contractors performing public functions. The article also discusses the tort's expansion beyond the familiar administrative law context of abuse of public power, to abuse or misuse of public position.
Misfeasance tortfeasors must at the very least have been recklessly indifferent as to whether they were exceeding or abusing their public power or position and thereby risking harm. That parallels the mens rea ingredient of the common law's criminal offence of misconduct in public office, and reflects a further reason for restricting the tort's coverage to public officials, who must always put their self-interest aside and act in the public interest.
Upon proof of the tort's fault elements, there beckons a damages vista apparently unconstrained by negligence law's familiar limitations upon claims for purely economic loss. This article questions the capacity of the "recklessness" requirement to constrain claims for indeterminate sums from an indeterminate number of claimants, some of whom may have been only secondary (or even more remote) victims of the public official's misconduct. Finally, it questions (and finds wanting) the assumption common in Australia that government will not usually be vicariously liable for this tort. It argues that the personal wealth (or otherwise) of a public official should not set the boundary for a truly public tort.
The article undertakes a comparative analysis of the law of Australia, New Zealand, England and Canada.
Administrative Law | Comparative and Foreign Law | Injury and Tort Law | Public Law and Legal Theory
Date of this Version
Mark Aronson, "Misfeasance in Public Office: a Very Peculiar Tort" (May 2011). University of New South Wales Faculty of Law Research Series 2011. Working Paper 21.