Beyond Illegality: Liability For Fault in English and French Law Duncan Fairgrieve

DOI:10.1093/acprof:oso/9780199258055.003.0004

Abstract and Keywords

This chapter is a comparative study on the significant aspects of English and French law with regard to fault-based liability. A discussion on the English law addresses the conditions of breach of duty, especially the contributions of negligence in statutory functions and their effect of obtaining redress for loss caused by public authorities, and examines other torts applicable to other authorities that are relevant to this context, particularly the breach of Community law. On a similar note, a scrutiny of the French administrative law explores the administrative activities (faits matériels or agissements), investigating the French court criteria for faults (faute de service) and the requirements for faute lourde, and discerning the impact of procedural traditions within an administration characterized by its illegal-fault parity.

Keywords:   English law, breach of duty, negligence, Community law, French administrative law, faute de service, faute lourde, procedural traditions

1. Introduction

In the previous chapter, the relationship between public law illegality and fault liability was examined. In some circumstances, a parity exists between invalidity and fault. In many cases this is not so. We have seen that the English courts have not accepted that all invalid administrative acts which cause loss should give rise to liability. In French law, despite the prevalence of the illegality-fault parity, there are also circumstances in which liability derives from something other than an illegality.

This chapter will be structured as follows. Initially the different approaches in French and English law will be presented in two autonomous sections. In a third section a comparative law commentary will be undertaken. The focus of this comparative section will be upon English and French law, but reference will also be made to other jurisdictions.

2. English Law

In the previous chapter it was concluded that the English courts are generally reluctant to equate illegality with fault giving rise to liability. In this section, we will turn to the elements that are required in English tort law in order for a defendant public body's conduct to be categorized as wrongful, so that liability will be incurred for loss that has been caused. First, the relevant elements of a negligence action will be presented. It will be shown that the requirement of a breach of a duty of care is a significant hurdle in obtaining redress for loss caused by public authorities. The dominance of the weapon of negligence within the armoury of tort claimants means that this discussion will occupy a significant portion of this chapter. Secondly, we will examine other torts that might apply to public authorities. The tort of misfeasance will feature prominently in this discussion owing to the fact that it is the only dedicated public law tort and is of contemporary relevance, having been the focus of recent litigation.

(P.59) 2.1. Breach and Duty in the English Law of Negligence

The duty of care concept has dominated the application of the tort of negligence to public authorities. In this section, we will examine the manner in which duties of care have been formulated in respect of public authorities. In the first subsection, the notion of justiciability and the policy-operational distinction will be presented. In a second subsection, we will examine the notion of proximity and the test of fairness, justice, and reasonableness. The concept of breach will also be covered, and it will be argued that this element of the tort of negligence will be of increasing importance in future cases.

2.1.1. Non-justiciable Legal Issues: The Policy–Operational Distinction

For reasons of constitutional propriety, courts will decline to examine negligence claims against public authorities which involve sensitive policy issues.¹ This non-interventionist stance is articulated by the judiciary through the concept of justiciability or by means of the policy-operational distinction. These concerns have generally arisen in the context of negligence claims, although echoes may be detected in respect of other torts.²

Arising from American law in the early post-war period,³ it was not until the case of Anns v Merton London Borough Council⁴ that the policy-operational distinction was first explicitly applied in the English courts.⁵ Lord Wilberforce made reference to the alleged negligence of a local authority in inspecting the foundations of a building under construction, resulting in structural damage to the claimants' property. He held that the more ‘operational’ a statutory power or duty was, the (p.60) easier it would be to superimpose upon it a common law duty of care.⁶ Contrariwise, where statutes contained a large area of policy, the decision was one for the public authority to take, and not for the courts to reassess in a negligence action. Lord Wilberforce held that it was solely for the local authority to decide how best to allocate resources in relation to the building inspections: to determine how many inspectors to employ and to decide upon the tests they were to carry out.⁷ On the other hand, the actual performance of the building inspections, which was ‘heavily operational’ in character, could give rise to a duty of care.⁸

The policy-operational distinction escaped the judicial disapprobation of Anns in Murphy v Brentwood District Council.⁹ In the subsequent case of Rowling v Takaro Properties Ltd,¹⁰ Lord Keith, in an important and oft-cited passage, underlined that the policy-operational distinction did not determine the actual existence of liability. It was rather to be applied in an exclusionary manner, in the sense that it was inappropriate for certain administrative decisions to be adjudicated upon in negligence actions.¹¹ He gave as examples of such non-justiciable matters ‘discretionary decisions on the allocation of scarce resources or the distribution of risks’.¹²

This reasoning was approved in the case of X (Minors).¹³ Lord Browne-Wilkinson used the concepts of justiciability and policy to express the fact that the judiciary was effectively excluded from entering upon the assessment of certain matters, including ‘social policy, the allocation of finite financial resources between the different calls made upon [local authorities] or…the balance between pursuing desirable social aims as against the risk to the public inherent in so doing’.¹⁴ Likewise in the recent case of Barrett v Enfield LBC, Lord Hutton and Lord Slynn gave support to the notion of justiciability.¹⁵ It was emphasized that the fact-sensitive nature of this notion militated against its determination on the basis of hypothetical facts in a striking-out application.¹⁶ Subsequent decisions have supported that approach.¹⁷

Much criticism has been levelled at the policy-operational distinction. Strong judicial disapproval is found in Stovin v Wise,¹⁸ where Lord Hoffmann, giving the majority judgment, asserted that this distinction is (p.61) ‘an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not’.¹⁹ Academic commentators have also doubted the utility of the distinction.²⁰

It has been contended that the policy-operational distinction is unnecessary, in the sense that the concepts of duty of care and breach can take account of the need to temper judicial intervention in negligence actions against public bodies.²¹ If this is merely expressing a preference for the use of justiciability rather than the policy-operational distinction, then this is not problematic. Indeed, this seems to be one of the important lessons to be drawn from the Barrett case, where the notion of justiciability was perceived as an open-textured notion to be considered in tandem with other factors in determining the existence of a duty of care and whether in fact a breach has occurred.²² However, if this argument is in truth more fundamental and represents an attempt to expunge notions of justiciability as well from this area of the law, then it is submitted that problems will be encountered. This can be appreciated by examining Lord Hoffmann's judgment in Stovin v Wise. His Lordship articulated a strong disapproval of the policy–operational distinction, and indicated his preference for having regard to the statutory framework in which the impugned act occurred in order to determine whether the imposition of a duty of care was supported by the policy of the statute.²³ In particular, a parallel was drawn between the elements of a civil action for breach of statutory duty and those of a common law duty of care: ‘[i]f the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care’.²⁴ Setting aside the weaknesses in this manner of determining a common law duty of care,²⁵ it is also apparent that Lord Hoffmann's attempts to exclude the policy-operational dichotomy were not entirely successful. Paradoxically, having first vigorously criticized this distinction, his Lordship then went on specifically to recognize similar concerns (p.62) as a reason for rejecting a duty of care. His Lordship argued that ‘[i]n my view the creation of a duty of care upon a highway authority, even on grounds of irrationality in failing to exercise a power, would inevitably expose the authority's budgetary decisions to judicial inquiry.’ Other elements of his Lordship's reasoning can also be seen to rely indirectly upon disguised questions of justiciability.²⁶ This serves to illustrate one important point. The justiciability of the complainant's claim against public authorities is an important, though not conclusive, element of assessing whether a breach of a duty of care has occurred. Attempts to deny a role to this or allied concepts are likely to fail. Similar considerations will invariably infiltrate endeavours to maintain judicial restraint in this area of the law.

Another argument which is commonly invoked by dissenters is that the policy-operational distinction is inherently uncertain.²⁷ Yet, uncertainty is effectively unavoidable when devising a means for the judiciary to express the fact that a negligence claim is not appropriate for adjudication. There is no acceptable bright-line method of delimiting justiciable and non-justiciable issues.²⁸ It is inevitable that the courts will need to look closely at the factual basis of claims to ascertain whether it is appropriate for it to reassess a particular administrative act in a negligence action.²⁹ Undoubtedly, this will prove unpopular with those who are seeking a criterion to facilitate the summary dismissal of claims in favour of defendant authorities.³⁰ Indeed, it is possibly the over-reliance on striking-out cases on these grounds that has contributed to uncertainty. It is to be hoped that the contours of justiciability will be defined more clearly as the courts, heeding the caution expressed in Barrett against striking out on these grounds,³¹ formulate clear statements of principle by applying this notion to concrete facts gained at trial.

The notion of justiciability should not be completely rejected as a means of judicial restraint in relation to negligence actions. Despite its amorphous nature, it has been used successfully by the judiciary in many cases.³² Recent clarification of the open-textured nature of the justiciability (p.63) enquiry should be welcomed. It should not be perceived as a tool for demarcating a broad judicial ‘no go’ area,³³ but rather as one of a number of analytical tools to be used by the courts in both determining the existence and extent of a duty of care owed by public authorities and assessing whether a breach has occurred.