(P.125) 4.1. Signs of Similarity?

The French civil law of delict is marked by a predominantly unitary conception of fault: the civil courts will assess whether the defendant's behaviour has fallen below the standard which is expected in the circumstances of the case.⁵¹⁵ This is in contrast to the English tort of negligence where, prior to determining whether the standard of care has been breached, the courts will assess whether a general factual situation should give rise to liability at all. Thus the English law of negligence illustrates a dual enquiry. The courts will first look at the duty question and then will examine whether the defendant is actually guilty of carelessness.

The French administrative courts have taken a different approach, somewhere between the two aforementioned extremes. Although the weight of the enquiry in French administrative law is upon the appropriate grade of liability—simple or lourde—and whether that has in fact been breached in the circumstances of the case, some emphasis is nonetheless placed upon the preliminary consideration of faute de service as the breach of an obligation.⁵¹⁶ Paillet tells us that in assessing administrative fault the judge will first determine the duty that the administration was under and then assess whether the conduct of the administration actually breached this.⁵¹⁷ Where there is no breach of such an obligation, no liability will arise. The contours of these administrative duties delimit the field of actionability.⁵¹⁸ Indeed Paillet has gone as far as compiling a ‘catalogue’ of situations commonly giving rise to fault, without intending to present an exhaustive account of administrative duties.⁵¹⁹ There is some evidence in the case law that the courts examine whether the administration was in breach of a duty. In one case, it was declared that a headmaster was not under a duty to inform the divorced parent of the special educational provision made for a child of whom the parent did not have custody.⁵²⁰ In contrast, in another case the Minister of Education was held to be under a general duty to ensure that schools taught children the core subjects of the national curriculum.⁵²¹

(p.126) This approach to fault in French law should not be too surprising. In the past French civil law commentators—notably Planiol—tried and ultimately failed to move the courts away from a unitary conception of fault towards a dual evaluation of duty and breach.⁵²² The administrative law writers seem to have had more enduring success, and Paillet for one acknowledges his intellectual debt to Planiol.⁵²³

The English law approach itself shows signs of movement. The end of the hegemony of the duty question has been prematurely sighted before, and this itself should counsel caution in making predictions. It is nonetheless clear that the recent case law encourages the belief in a shift of emphasis from duty to breach. We have seen that after Barrett and Phelps, the breach enquiry is set to play a more prominent role in controlling public authority liability.⁵²⁴

Not only may similarities in English and French law be detected at a theoretical level, but an investigation of the practical application leads in a similar direction. A close analysis of Anglo-French case law indicates that similar factors influence the finding of fault.

Many French cases testify to the fact that, as in English law, foreseeability of loss plays a significant part in the faute de service calculus.⁵²⁵ So, the knowledge of the violent tendencies of a prisoner towards his cell-mates meant that the administration was at fault in failing to put him under special supervision.⁵²⁶ Likewise, the foreseeability of suicidal tendencies of a patient was of importance in another case.⁵²⁷

In both countries there has been discussion about the relationship between error and fault. In French law, an error leading to the unlawfulness of a legal act will per se entail fault;⁵²⁸ in English law this evidently does not apply. For physical acts, a similar approach is however taken in both countries: it is clear that a mere error will not necessarily constitute fault. The question whether an error is wrongful depends upon the circumstances of the case.⁵²⁹ In French law, the move away from graded standards of fault has brought the error–faute issue into sharper focus. In responding to those who have feared a rapid increase in liability after the (p.127) decline of faute lourde, CG Stahl has argued that ‘[e]very error will not necessarily constitute a fault; some [errors] will not incur the financial liability of the public body’.⁵³⁰ Similarly, in the English law of medical malpractice it has been held that an error of judgment in medical practice is unlikely to amount to the requisite breach of duty.⁵³¹

The courts will also take account of the difficulties inherent in performing administrative activities. In French law,⁵³² the difficulty of policing has influenced the question of fault.⁵³³ In English law, the standard of care applied by the courts will also take account of the fact that professionals and administrators make difficult decisions with limited time and resources.⁵³⁴

Some French cases suggest that the courts take account of the limited financial means of the defendant public body in determining fault.⁵³⁵ This brings us to the delicate issue of the courts' attitude to budgetary restraints affecting administrative activities. Lack of financial resources does not seem to be accepted as a general defence in French administrative law,⁵³⁶ so that failure to teach children the core subjects of the national curriculum could not be excused by funding constraints.⁵³⁷ On the other hand, some cases have referred to cost factors in determining whether behaviour was reasonable or not;⁵³⁸ and an isolated law of 1881 stipulated that poor maintenance of rural roads could give rise to fault only if the local authority had sufficient resources to do the work.⁵³⁹

In English law, there is an emerging judicial consciousness of the financial constraints under which public authorities are operating.⁵⁴⁰ The influence of this upon the imposition of liability can be detected.⁵⁴¹ In one case (p.128) it was indicated that the limited resources of the defendant might be borne in mind in determining the standard of fault, but that this could not constitute an absolute defence.⁵⁴²

The final factor to merit consideration is the courts' attitude to omissions.⁵⁴³ In English law, there is a general reluctance to impose liability for negligent omissions,⁵⁴⁴ other than in exceptional circumstances such as the existence of a special relationship between the defendant and claimant,⁵⁴⁵ or where the defendant is in a particular position of control over the wrongdoer.⁵⁴⁶ The general wariness is clear from the judgment of Lord Hoffmann for the majority in Stovin v Wise in which his Lordship held that there are significant obstacles to a damages claim concerning the failure to exercise a statutory power.⁵⁴⁷ It was held that there are two minimum conditions. First, it must have been irrational for the authority not to have exercised the statutory power, so that there was in effect a public law duty to act. Secondly, there must be exceptional grounds for holding that the policy of the statute conferred the right to compensation on those who suffered loss if the power was not exercised. Moreover, Lord Hoffmann held that the very fact that Parliament had conferred a discretion, rather than a duty, on the public body was some indication that the policy of the statute was not to create a right to compensation.⁵⁴⁸ This hard line stance strikes a very different note from the more liberal judgments in Barrett, but Lord Hutton suggested in Barrett that the ratio of Stovin v Wise would still apply to omissions to exercise a statutory power.⁵⁴⁹

In French administrative law, omissions to act often constitute a faute (p.129) de service.⁵⁵⁰ Overall, the French courts show less caution in penalizing the failure to deliver public services than the English courts.⁵⁵¹ This is apparent in the travaux publics cases, where claimants often sue authorities for failing to maintain travaux or ouvrages publics. In Soldaini, an injured motorcyclist successfully obtained damages for the failure of the highway authorities to remove an obstruction from the road.⁵⁵² And yet, some French cases do indicate some wariness in imposing liability for omissions.⁵⁵³ Failures to take or implement regulations will constitute a fault only if the delay is long.⁵⁵⁴ The courts are also reluctant to transform an omission to take measures ensuring public order or safety into an obligation to pay damages on the basis of liability for fault.⁵⁵⁵ Significantly, many cases reflect the fact that when an omission is considered to be wrongful, a special relationship already existed between the parties, for instance head-teacher and student,⁵⁵⁶ prison authorities and prisoner.⁵⁵⁷