Crown Immunity Research Articles

Civil Legal Framework for Moral Damage in Jordanian Law

This study explores civil remedies for assault, allowing victims to claim damages for psychological harm and use force in self-defense. If a victim defends themselves and faces a counterclaim, the initial tort may mitigate their liability. When a tort is used as a defense in a criminal case, it can trigger issue estoppel in subsequent civil proceedings meaning that if the defendant loses the criminal case, they often lose the civil case as well. The situation differs when it comes to moral damages resulting from criminal acts. Moral damage refers to injury to legally protected interests, such as personal security, caused by a tortious act. Victims of criminal offenses that also constitute torts can use these acts as evidence of liability in civil actions. However, specific remedies for moral damage are often insufficient or absent, particularly for victims of violent crimes. These victims may struggle to obtain more than nominal damages for assault or battery, facing challenges due to tort limitation periods, which may require suing for false imprisonment while still involved in criminal proceedings. The case of Phillips v UK exemplifies this, where the Crown's immunity extended to acts violating personal dignity, making it difficult for victims to pursue actions for moral damages.

Uncertainty Over the Scope of Borrower Protections in Mortgage Enforcement Proceedings in Alberta: The Problems and Potential Solutions

This article analyzes the complex legal framework surrounding protections for borrowers in mortgage enforcement proceedings in Alberta. It examines two statutory protections — default redemption periods and protection from deficiency judgments — as well as the applicability of non-recourse protection to non-purchase money loans and how Crown immunity has previously curtailed the protections. Homeowners are often unable to navigate the system due to its complexity and the power imbalance between lenders and borrowers. The article advances several possible solutions to this issue, including education initiatives aimed at borrowers, enhanced disclosure obligations for lenders, and reforms to the scope of the borrower protections. These changes aim to assist homeowners in claiming the protections they are legally entitled to and to ensure that Albertans are not needlessly unhoused.

Tort Compensation in the United States and England: Goal or Means?

The modern state exists and acts on behalf of its citizens. No longer is it the state of a sole ruler acting on his or her own behalf and for his or her own sake. Rather, it is a civil state whose role is to preserve the rights of its citizens and to maximize their welfare. An important instrument for the goal of realizing these roles is the government authority held by the state. Consequently, the modern state exercises extensive government authority in social and economic life. The widening of the areas of activity in which it is involved and over which it exercises its authority raises the question of the desirable scope of state liability for the negligent exercise of this authority. In this paper, I analyze the scope of tort liability of public agencies and public authorities in the United States and England. The innovation proposed in this article is twofold for, although the scope of liability of public agencies has been extensively surveyed and analyzed in the academic literature, these surveys and analyses were for the most part conducted by means of organizing the development of the relevant case law along a timeline. This article adopts a different approach, examining the scope of liability of public agencies according to their areas of activity. Accordingly, the abundant court judgments are classified into varied areas of government activity. This technique allows for fine, precise inferences to be drawn with regard to the level of liability of public agencies. It can be started already at this stage that, as a whole, the fundamental conclusion of this article is that in both the United States and England the remnants of the traditional doctrine, that of sovereign or crown immunity, are marked. An analysis of the law in these countries shows that to this day, public agencies still enjoy extensive protections against tort claims and that the general approach there has always been to limit liability. The second innovation included in this article is, in a nutshell, the suggestion of a possible reason for the prevalence of this doctrine in the United States and England. I argue that this reason may be the manner in which each judicial system perceives the role of the instrument of tort compensation. Accordingly, I contend that compensation is perceived in the United States and England as a means to achieve the goals of tort law, rather than as an independent goal standing on its own merit.

Litigating Cross-Border Aboriginal Title Claims in Canada: The Possibility (and Necessity) of a Federal Legislative Response to Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam)

There are many Indigenous peoples in Canada who have occupied, and continue to occupy today, traditional territories that straddle provincial borders. The decision of the Supreme Court of Canada in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam) illustrates the practical difficulties faced by the Indigenous peoples in Canada who seek to claim Aboriginal rights in a single traditional territory that straddles provincial borders. Because of provincial Crown immunity, Indigenous peoples who wish to obtain a declaration of Aboriginal title that is binding on all the provincial Crowns concerned over a single traditional territory that straddles provincial borders have no choice but to bring proceedings in the courts of all the provinces concerned. This seems particularly unfair, especially since provincial borders were imposed on Indigenous peoples without regard for their pre-existing social organization. Forcing Indigenous peoples to bring multiple claims in multiple jurisdictions is also a threat to access to justice. In this article, I suggest amendments to the Federal Courts Act that would provide the Indigenous peoples in Canada who wish to litigate cross-border Aboriginal title claims with a forum in which all the parties necessary to resolve the issues fairly, including all the provincial Crowns concerned, could be summoned as defendants, and in which a declaration of Aboriginal title, binding on all such defendants, could be sought.

Assessing Litigation Strategies by Government Respondents to Human Rights Complaints

In all jurisdictions in Canada, individuals have the right to non-discrimination when receiving services available to the public. While some of these statutes expressly exempt specific government activities from their scope of application, these laws otherwise prohibit discriminatory practices in the context of service provision, without drawing a distinction of whether these services are public or private in nature. Despite this, most notably in the past decade, respondents in government services cases have sought to advance various arguments based on the purported claim that they ought to be treated differently and more leniently than other respondents who face human rights complaints. There are three primary examples of this. Firstly, government respondents have increasingly attempted to argue that some of their activities do not constitute “services” under human rights legislation in order to prevent human rights tribunals from hearing complaints relating to their programs, policies, activities, and laws. In my view, there is a deliberate and calculated objective behind such arguments. It is to push groups and individuals alleging discrimination outside of human rights systems, which are generally more affordable and faster than courts, and leave them with no other option than to bring constitutional challenges under section 15 of the Canadian Charter of Rights and Freedoms (“Charter”) with little odds of success. Second, when government respondents are unsuccessful at forcing discrimination complaints out of the human rights system using what I will refer to as the “services argument”, they have implored tribunals to allow them to play by different rules than other respondents. In particular, they argue that the appropriate test in human rights cases involving government services ought to be the more onerous inquiry developed under section 15 of the Charter, rather than the prevailing prima facie discrimination standard normally applied. Finally, government respondents found to be engaging in discriminatory conduct in the context of service provision have also begun to claim that human rights tribunals ought to refrain from making certain remedial orders against them. They have most vigorously attempted to fend off orders of systemic remedies by invoking arguments relating to Crown immunity and deference. Many of these arguments have, to a certain extent, born fruit as we are now witnessing the emergence of a new trend in human rights jurisprudence. In my view, this trend is increasingly and unjustifiably letting government respondents off the hook. This paper examines this trend.

Justice Paul Desmond Finn: An Australian Dimension to the Cambridge Eminent Scholars Archive

Judge Paul Finn of the Australian Federal Court, who is the 2010-2011 Goodhart Professor was interviewed for ESA in Dec 2010. Judge Finn’s erudite and thought-provoking interview has provided students of English law with a fascinating insight into the evolution and “state of play” of a Common Law jurisdiction with which they may be less-familiar. At the same time, his views on a range of topics may give a contemporary mirror in which Australian readers can view their country’s legal developments. Here, I summarise some of these topics. Included is his elevation to the bench from academia - hitherto an unusual event; Justice Finn’s views on the law as an applied discipline, and reminiscences of his career-long fascination with the principle of fiduciary principles in equity, and his views on the question of discretionary remedies in equity cases. There is also a commentary on his explanation of the importance of understanding the historical development of law in the states of Australia, and his enunciations on what he calls “state socialism”, as well as his explanation for the early abolition of the principle of Crown immunity. An important aspect are his views on Native Title in relation to the Torres Straits islander and the concept of terra nullius and other important cases with which he has been involved. Included is his revelation of highly relevant information collected by the Haddon expeditions in 1898-99, now housed in the Museum of Archaeology & Anthropology at Cambridge. The summary finishes with some of Justice Finn’s observations on Australian government and the role of political parties vis a vis statutory boards, and some reminiscences on his membership of UNIDROIT in the 2000s and the issue of “good faith” in Australian contract law.

Sovereign Immunity and Its Development in International Law

Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution . In constitutional monarchies, the sovereign is the historical origin of the authority, which creates the courts. By this, the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects. However, one has to not to be confused with the principle of public international law that the government of a state is normally not amenable before the courts of another state. This research critically examines the doctrine of sovereign immunity, which is no longer reflects the world we live in, as it doesn't accurately reflect the reduced importance of governments compared to private actors. There is an argument that this doctrine should be eliminated.

The Northern Territory Power Generation Case: Government Owned Businesses Required to Comply with Trade Practices Act Standards of Competition Behaviour

Section 2B Trade Practices Act - When applies to a Governmental authority so that s 46, dealing with misuse of market power, will apply to the activities of that authority - Proprietary rights no shield to breach of s 46 determined by abuse of market power - Derivative (Bradken) Crown immunity not available to a non-Crown body where being bound by statute would impact to financial prejudice of Crown but would not impact on Crown legal or proprietary interests. The High Court handed down its decision in NT Power Generation Pty Ltd v Power and Water Authority on 6 October 2004, the majority (McHugh ACJ, Gummow, Callinan and Heydon JJ) upholding the appeal, Kirby J alone dissenting. The decisions of Mansfield J at first instance and of the Full Federal Court3 dismissing an appeal, were overturned, with important repercussions for those who contract with Governmental bodies, and in the determination of who must comply with the Trade Practices Act 1974 (Cth) (the TPA).

The Spectre of Crown Immunity after the End of Empire in Hong Kong and India

This article draws attention to the survival in the legal systems of India and Hong Kong of the ancient doctrine of Crown immunity. In India the ‘sovereign powers’ of the East India Company vest in the Indian state and it consequently enjoys substantial immunity. In Hong Kong a recent case holds that the Chinese government enjoys the same immunity as the Crown. Such immunities are inconsistent with the rule of law and should be narrowed by judicial decision in the absence of remedial legislation

Copyright Board denies Crown immunity for proposed tariffs on government reproduction of certain works

The Copyright Board of Canada held that the Provincial and Territorial Governments of Canada could not invoke Crown immunity to avoid the tariffs proposed by the Canadian Copyright Licensing Agency.

Hydrogeology of British military sites: Project Aquatrine

Abstract Project Aquatrine was the UK Ministry of Defence's Private Finance Initiative project to transfer responsibility for water supply and waste water removal to private companies. Britain was split into three geographical areas, with Package A approximately covering the area to the west of a line between the Mersey and Southampton, Package C covering the rest of England, and Package B covering Scotland. Hydrogeology was a major factor in the models used to produce financial forecasts for Package A, upon which the winning bid was based. Reconnaissance-level understanding of aquifers, water demand and the Environment Agency's view of licensing possibilities were used to produce a list of sites where water resources could be developed to replace the incumbent water suppliers. Several sites have been developed successfully, but a number of possible abstractions have failed to be realized because of hydrogeological (quality, quantity) and other causes. In the operational phase of Aquatrine, hydrogeology was used to understand the data produced by a new network of telemetred groundwater level loggers, to constrain the location of new sewage treatment works and to apply for appropriate abstraction licences when Crown Immunity under the Water Resources Act 1991 is finally lost.

Crown Immunity in a Food Crisis: A Consideration of the 2008 Listeriosis Outbreak in Canada

In Canadian law, the question of whether agents for federal and provincial governments can be liable to consumers in negligence has traditionally been resolved in the negative. However, when many Canadians suddenly fell ill and others died due to exposure to listeria-infected meat products in mid-2008, the ensuing public health crisis and criticism of the government agency that handled it obliged the Prime Minister to call for an investigation and report upon the conduct of the Canadian Food Inspection Agency. In the context of the unfolding investigation, the authors examine the underlying rationale and policy reasons for the Canadian courts’ doctrine of Crown immunity and whether the time might be ripe for policy change in circumstances like those which gave rise to the losses caused by listeriosis.

The development of care services for older people in prison

AbstractPrisons are 'closed' institutions and, as such, access by the general public is controlled and restricted. Historically, the separate care needs of older people have not been recognised and they have been treated as part of the whole prison population. Until recently, the Prison Service in the UK could claim Crown immunity from health and social care legislation that would apply to the general population. This has had to change as the over 60s have become the fastest-growing age group in the prison population. EU treaty obligations and High Court actions on human rights issues have led the UK Government to remove prison immunity. An example of this change may be found in the Disability Discrimination Act 2005 that now applies to prisons. However, despite this dramatic rise in the older prisoner population and new legislation, there is currently no mandatory requirement or national strategy for the care of older prisoners, although this is under consideration. With the transfer of prison healthcare...

Injonction interlocutoire - Mandamus - Immunité de la Couronne – Discrétion administrative - Paiement de subventions

The function of interlocutory injunctions is changing in Quebec procedural law. Its field of operation is extending and the case of Driscoll College v. Morin opens up new perspectives as regards four points : the use of mandamus, Crown immunity, administrative discretion and the power to order the payment of a sum of money. Yet it seems that new difficulties will rise before long, which may require a complete reassessment of the interlocutory injunction's role in Quebec law.

La qualité d'agent de la Couronne ou de mandataire du gouvernement

In the absence of clear legislative intent as to the status of a corporation or public body as a Crown agent or Government mandatary, the courts apply one or both of two tests. The function test, based on the concept of public purpose, requires that the court decides what kind of activities can be held as functions of Government. The test is therefore subjective and not particularly satisfactory, bearing in mind that it is not for the courts to impose upon the Legislature any political doctrine as to what are the proper functions of Government. The control test requires that the whole statutory framework be examined in order to determine whether or not the corporation or public body has discretionary powers of its own, exerciseable with some degree of independence from the Cabinet. Corporate status, financial autonomy, independence of the managers and control of the corporation's or public body's activities are components of the test. Any one factor will not be determinative in itself. But when several point the same way, the courts will tend to follow their lead. Yet, this test has failed to produce completely consistent results. The practical end of the exercise is to determine whether such public bodies or corporations are entitled, as Crown agents, to some or all of the privileges, immunities and prerogative powers enjoyed by the Crown. Some of these attributes are examined in this paper, such as the Crown's immunity from civil and criminal liability, statute law, taxation, and civil execution. Bankruptcy of public corporations is also considered. The authors suggest that the courts should no longer be left to apply these tests, since that may often frustrate the intent of the Legislature not to confer the attributes of a Crown agent. The Interpretation Act could be amended to make it clear that such status can only be conferred by an express enactment. Further, the Legislature should, when conferring such status, specify which attributes are meant to vest in the Crown agent.

VIPER?a versatile reactor in a changing world

The versatile intermediate pulse experimental reactor (VIPER), first commissioned in 1967, has successfully emerged from its latest four-yearly major maintenance shutdown. The extensive strip and rebuild of the reactor found no indication of any life-limiting features. Expected life was estimated to be at least another 20 years. Many changes have occurred which have affected the reactor in recent years, the two key changes being contractorisation of AWE and losing Crown immunity, and thus raising the need to obtain a nuclear site licence and to meet numerous regulatory requirements. This paper covers a brief description of the reactor, its recent major shutdown, the impact of licensing, present capabilities and future plans.

Immunity: A Bad Deal All Round

How the presumed immunity of the Crown from statutes works - attempts to get rid of the presumption - discarding crown immunity not sanctioned by Constitutions would assist focus in litigation on the Australian community and its members and away from the Crown centred model we inherited in the late nineteenth century.

Clinical governance.

Clinical governance.

EQUIPMENT TO ENABLE SAFE PATIENT HANDLING

‘An estimated 1.3million working days are lost to the NHS each year because of back injury’ (calculated by the National Back Pain Association, reported in Handling People (Disabled Living Foundation, 1994). Until the early 1990s when trusts were formed, the NHS enjoyed Crown Immunity. Formation of trusts removed employer status from the Crown, and the Health and Safety Executive was therefore at liberty to inspect trust premises and enforce health and safety law.

Equipment to enable safe handling of people

‘An estimated 1.3 million working days are lost to the NHS each year because of back injury’ (calculated by the National Back Pain Association, reported in Handling People (Disabled Living Foundation, 1994). Until the early 1990s when trusts were formed, the NHS enjoyed Crown Immunity. Formation of trusts removed employer status from the Crown, and the Health and Safety Executive was therefore at liberty to inspect trust premises and enforce health and safety law.