2: Negligence and the Vulnerable Subject: Public Bodies and the Duty of Care

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This chapter explores the limits and radical potential of public authorities’ duties of care to hold the state to account for harms suffered by those who are most marginalised in society. It follows a wealth of feminist and critical scholarship critiquing the abstracted and individualised White, pecunious male subject at the heart of tort law, and the increasingly large body of scholarship demanding a vulnerable human subject be placed at the heart of law, politics and ethics. While the rules on the public sector’s liabilities have been developing, there has been little consideration given to whether there has been a shift in the conception of the subject to whom duties of care are owed and any invocations of vulnerability. This oversight is more significant when research identifying an increasingly prominent role of vulnerability in the context of human rights is considered, given the close – if contested – relationship between tort law and human rights in relation to public bodies’ liability. In this chapter we analyse the nature of the subject in the context of duties of care and explore the relationship between tort and human rights liability.

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