9.4 Misfeasance in public office
The tort of misfeasance in public office is a civil wrong that may be redressed in law by an award of damages, and relates to the intentional misuse of public power by a public officer. To establish the tort of misfeasance in public office, the plaintiff must prove that an act was:
- invalid or unauthorised
- done maliciously
- done by a public officer
- done in the purported discharge of his or her public duty
- caused loss to the plaintiff.1
The following actions by a public officer may constitute misfeasance in public office:
- action taken in excess of power with an intention to cause harm
- action taken in knowledge that there is no statutory authority and the damage is foreseeable; or
- action done with reckless indifference.
An act conducted in good faith and without knowledge of the invalidity of the act is not likely to constitute misfeasance in public office.
The tort of misfeasance in public office creates a personal liability. The State may not be liable for actions of its officers which amount to misfeasance.2 See Chapter 9.1 in relation to the Guideline for the Grant of Indemnities and Legal Assistance to State Employees.
To ensure against misfeasance in public office, public officers should ensure that they have the requisite power to exercise their authority and may, in some cases wish to seek legal advice on such matters. Public officials should ensure that they are diligently and conscientiously carrying out assigned duties.
