Justiciability

Abstract

When determining a negligence claim brought against a public authority, the first question a court will need to consider is whether the claim is ‘justiciable’, ie whether it is suitable for judicial resolution. It is only if a claim is ‘justiciable’ that the court ought to go on to consider whether a duty of care is owed and has been breached. While there are matters that may be relevant to both justiciability and duty of care, justiciability ought to be determined as a preliminary question, or at least, as far as possible, kept conceptually separate from the determination of whether a defendant owed a duty of care.