Misfeasance in public office
Misfeasance in public office

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Misfeasance in public office
  • The tort of misfeasance
  • The ingredients of the tort
  • The tortfeasor is a public officer
  • The defendant (or its employees) must have been exercising power as a public officer at the time of the relevant action
  • The public officer must have acted (or failed to act) in bad faith
  • Omissions
  • The public officer must have known at the time that the act would probably harm somebody
  • The act/omission must have caused the injury
  • Actual injury/damage is required
  • More...

The tort of misfeasance

Misfeasance in public office is a tort that is rarely invoked in personal injury claims. It is only available against public authorities.

There are advantages to the tort of misfeasance in public office, if appropriate, over an action in negligence, namely:

  1. there is no requirement to establish a duty of care

  2. exemplary damages may be claimed

Practitioners should, however, note that there are also potential disadvantages to bringing a claim for the tort of misfeasance in public office, compared with an action in negligence:

  1. only public officers can commit the tort

  2. a claimant is required to show that those officers are abusing their power or position

  3. establishing the tort requires malice on the part of at least one public officer within a department or public body and it is insufficient to show gross incompetence, neglect or breach of duty

In general terms, the tort is invoked where a public officer has exercised (or failed to exercise) their power as a public officer in bad faith, knowing that the act in question would probably cause harm. As Stuart-Smith LJ explained in W v Essex County Council, the tort of misfeasance in a public office may be committed in one of two ways, namely where a public officer has either:

  1. performed or omitted to perform an act with the object of injuring the plaintiff (where there

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