When Power Goes Wrong · Liability & Remedy Ledger · Part 04

Negligence versus misfeasance in public office.

A public authority can act negligently without committing misfeasance. Misfeasance is a distinct intentional public-law tort with a substantially higher mental-state threshold than ordinary negligence.

These causes are frequently conflated. Negligence asks whether the defendant owed a duty of care, breached it and caused compensable loss. Misfeasance in public office targets deliberate abuse of public power and requires a materially different state of mind.

The distinction is visible in Whangārei District Council v Daisley [2026] NZSC 72. The Council accepted negligence. The Supreme Court nevertheless agreed that misfeasance was not established on the facts.

Serious mistake ≠ misfeasance automatically.Even grossly careless public administration may fail the deliberate or knowing mental-state requirements associated with misfeasance.

NegligenceDuty + breach + causation + loss, subject to public-authority duty analysis and defences.

MisfeasanceAbuse of public office with the required knowledge/recklessness and resulting harm.

Why plead carefullyThe wrong tort can fail even where the conduct was unquestionably poor or unlawful.

Current warningDaisley also shows limitation can drastically change the recoverable damages even where negligence is accepted.

The legal task is to match the facts to the correct cause of action rather than using “misfeasance” as a synonym for government wrongdoing.

Supreme CourtWhangarei District Council v Daisley [2026] NZSC 72.

Public-authority negligenceCouch v Attorney-General.

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