the back door’. Thus this reformulation of liability for public bodies is preferable to that of McBride’s and should be adopted. Thus the most problematic area of tort law has been unsatisfactorily resolved. Under Michael, and going forward, we can sadly expect the liability of public bodies for omissions to match the liability of private parties (see CN v Poole BC).76 After 75 years of conflicting litigation it appears there is finally an answer to this question. Despite the Supreme Court’s reasoning however, the uniform approach to public liability should not be supported. Though McBride’s construction of a ‘policy approach’ is appealing, the law can more simply be adapted by imputing that public bodies have assumed a responsibility to safeguard unless shown otherwise. The fact that the court unanimously agreed that the family in Michael is able to pursue its ECHR art 2 claim means that public law clearly asks different questions to tort in regard to the responsibility of the state. Thus one cannot be a substitute for the other and we must allow tort to evolve; tort can compensate victims if the courts will let it.
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[2019] UKSC 25
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