2.2.3. Conclusion

It is impossible to cover the full range of torts which could apply to public bodies. We have focussed upon the most prominent. There are other torts which are of importance in some contexts. For instance, in respect of civil actions against the police, the torts of assault, battery, false imprisonment, and malicious prosecution are commonly applied.³¹⁷ We have also seen in the previous chapter that the tort of breach of statutory duty is not exclusively one of strict liability; in some cases objective fault might be required, thus imposing an obligation to take reasonable care or a duty to take ‘reasonably practicable’ acts.³¹⁸

There is also the evolving action in tort for breach of Community law. The elements of this action have been set out in a number of cases,³¹⁹ and its impact on domestic law is now being felt. This jurisprudence may indeed result in a ‘spill-over’ impact upon cases without a Community law dimension.³²⁰ Some comments have already been made about this in the context of the illegality-fault relationship.³²¹ There is also potential for this to have some effect in other areas. In particular, the courts have been developing the test of a sufficiently serious breach within the context of actions for breach of Community law. The House of Lords has considered those factors which may be relevant in the recent case of R. v Secretary of State for Transport ex p Factortame (No 5).³²² These include the clarity and precision of the rule broken, the degree of excusability of an error of law, and the state of mind of the infringer. We have already noted the shift to (p.102) breach which has occurred in the context of the tort of negligence. In developing the role of breach as a more potent control mechanism, the test adopted in the Community law context may well be relevant.³²³ Indeed, in the context of misfeasance we have already noted that Lord Hope latched upon the test of a sufficiently serious risk of loss in formulating the test concerning the degree of risk of loss which the defendant must have been aware.³²⁴

Community law is by no means the extent of European influences on domestic tort law. We have noted throughout this section that European human rights law has been an increasingly important aspect of recent decisions. This is a trend which is no doubt bound to continue.

3. French Law

In the previous chapter it was shown that French administrative law is characterized by the illegality–fault parity. Indeed, invalid administrative decisions are a significant generator of administrative liability.³²⁵ But the illegality-fault parity should not dominate the discussion. There are many scenarios in which the courts will have to determine whether the administration is at fault when it is not possible to rely solely upon standards of legality.³²⁶ Various areas will be identified and discussed in the following section. The first part of the discussion will focus upon administrative activities, known as agissements or faits matériels. We will investigate the criteria used by the courts to determine whether a faute de service has occurred. Secondly, there is the requirement of faute lourde in French administrative law. Not only is it instructive to analyse how the courts assess whether a gross fault has occurred, but it is also revealing to take account of the policy reasons underpinning the application of this regime in French administrative law. Thirdly, we will examine the effect of presumptions of fault. Fourthly, we will look at the impact of the different procedural tradition in French administrative law.