Tort law and cost recovery by public authorities
PhD student: Dr C. Borucki
Promotors: Mrs Prof I. Samoy, Prof S. Lierman
Duration: 1/9/2017 - 31/8/2021
PhD defence: Leuven, 30/6/2022
This thesis enquires which criteria allow an answer to the question whether or not a public authority can recover costs made because of a statutory duty, through tort law. When public authorities act out of statutory duty, a tension arises between society at large and the individual that has elicited said duty. One the one hand, public authorities must serve the public interest and it is, moreover, desirable that a citizen solicits public services without hesitation. On the other hand, the responsible individual causes public authorities to incur expenses out of negligence or even with malicious intent. Those costs are funded by public resources. The question arises to what extent public authorities themselves must bear those costs out of societal solidarity. Is it possible to point out the responsibility of the individual, at least partially? In Belgian law public authorities can in principle recover public expenditures through civil tort law. If a judge denies their claim for damages, this judgment entails a definitive allocation of the damage to the public authorities, which implies that it rests with society. Thus, the judge must determine the allocation of risk for societal damage. Currently a framework for this balancing of interests is absent. Doctrine and jurisdiction at times accept a limited liability of the individual towards public authorities, whilst rejecting it at other times. The legal basis on which this liability is construed, lacks clarity. Therefore, this research aims to analyze all arguments at play that found or should found this limited liability in tort law.