"One aspect of misfeasance in public office that lacks precise definition is whether, assuming damage, it is sufficient to establish that the public officer knows that he or she is acting without authority or whether there is some additional requirement. For example, it was suggested in Bourgoin SA v Ministry of Agriculture, Fisheries and Food, that there is an additional requirement that damage be foreseeable, and it was said in Tampion v Anderson that the plaintiff must be 'the member of the public, or one of the members of the public, to whom the holder of the officer owed a duty not to commit the particular abuse complained of'. There is a statement in Farrington which might be thought to deny any requirement over and above knowledge that the act is beyond power. It was said in that case that, 'If a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance in a public office will lie against him at the suit of that person'. However, there is no indication as to what is comprehended in the expression 'an abuse of his office' and Smith J, whose decision it was, was a member of the Full Court which later stated in Tampion v Anderson that there was, additionally, a requirement that there be a duty to the plaintiff. Moreover, the act complained of in Farrington, namely, that of ordering the closure of a hotel, was one which, if complied with, would necessarily result in damage.
The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined ...
It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.
If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power. However, that is not what was put in this case. The argument was that it is sufficient that the officer concerned ought to have known that he or she lacked power."