Lawfully Caused Loss Duncan Fairgrieve

DOI:10.1093/acprof:oso/9780199258055.003.0005

Abstract and Keywords

This chapter focuses on no-fault liability — damages liability of public authorities when the impugned actions are not unlawful in a public law sense. Lawfully caused loss is more applicable in French academic and case law because French administrative law covers a more general scope of liability than the strict liability of the English law, including disparate areas of public sector activity, even though it can be compared to individual torts in English law. However, no-fault liability in French administrative law is pervaded by confusion as its supporting principles are still doubtful. Introduction of a broad principle of liability for lawfully caused loss based upon risk theory or on principles of equality has been a debate in common law systems.

Keywords:   no-fault liability, lawfully caused loss, administrative law, English law, common law

1. Introduction

So far in this study, we have concentrated upon fault-based liability. In both legal systems, liability for fault is not the sole basis for the granting of damages. The courts and legislature in both England and France have intervened to provide for circumstances in which liability may arise whether the defendant was at fault or not.

Difficulties arise in making an Anglo-French comparison of liability without fault. Predominantly, we are confronted with complications concerning the meaning and extent of no-fault liability in the two systems. Essentially, this stems from the radically different conception of fault in English and French law. The extensive notion of fault in French administrative law has meant that it covers areas which, in terms of categorization, would normally fall within the ambit of strict liability in English law. This is most clearly illustrated by the illegality-fault equation in French law, which leads to liability for breaches of legality which neither the defendant nor a reasonable person in the defendant's position could have foreseen. Clearly these types of situations would fall outside the scope of liability for fault in English law. Indeed, we have seen that where courts have recognized a right of action for breach of statutory duty by virtue of the mere breach of the provision, this has been categorized as strict liability in English law.¹

This problem of delimitation has been resolved as follows. Although it is recognized that liability for loss caused by invalid administrative acts in French law can fall within the scope of strict liability, it has been decided that, for clarity of presentation and in order to draw out the comparative law parallels, this issue should predominantly be covered in Chapter 3 under the rubric of public law illegality and liability in damages. In this chapter, we will instead focus upon lawfully caused loss, that is to say damages liability of public authorities when the impugned actions are not unlawful in a public law sense.

In presentational terms, there is also a difficulty of balance. Put simply, the French academic discussion and case law dwarfs its English law equivalent. A cursory view of French administrative law reveals that responsabilité sans faute has flourished during the twentieth century. In (p.137) contrast, the English judiciary has—until recently—shown a marked reluctance to allow negligence liability of public authorities, let alone any extension into liability based on risk or liability for lawful administrative action. For this reason, this chapter will primarily concentrate upon the French law perspective, although we will nonetheless examine those English torts which could potentially have provided parallels to the heads of no-fault liability in French law.

An initial comment will be made. The general approach in English and French law to causation and recoverable loss will be examined in detail in later chapters.² Some reference to these concepts will nonetheless be made in this chapter, where the specific application in the context of no-fault liability calls for particular comment.