2. French Law

No-fault liability in French administrative law is generally based upon two distinct principles, that of égalité devant les charges publiques, and that of risk.³ According to the principle of égalité devant les charges -publiques, compensation should be provided for those who have shouldered a disproportionately large burden or loss caused by activities pursued in the common good.⁴ In this way the burden is shared by means of taxation between those who benefit from the activities.⁵ This principle is said to derive from Article 13 of the Declaration of the Rights of Man of 26 August 1789 which relates to the fair apportionment of taxes.⁶

(p.138) The principle of risk is explained as follows. Certain activities of the state which are undertaken in the public interest inevitably run the risk of causing loss to others. Should that risk materialize, according to the risk principle, the state is obliged to provide reparation for those affected.⁷

The principles of égalité and risk are by no means mutually exclusive. Indeed the outcome expressed by the risk principle is itself dependent upon the belief that loss which is a side-effect of public service activity should not simply lie where it falls, and this principle is also supported by strong notions of equality in French law stretching back to the Revolutionary period.⁸ Despite this blurring of the theoretical rationales of no-fault liability, each principle has been seen as underpinning distinct types of no-fault liability. In the following analysis, we will adopt the general categorization which makes a distinction between risk-based and equality-based liability.⁹ We will also see that there are certain categories of no-fault liability which are not underpinned by either of these principles.

2.1. Risk-based No-fault Liability

We have seen that the justification for risk-based liability is that damages should be granted to those who are adversely affected by public services which are dangerous or which run the risk of causing loss. But not all types of risk qualify for inclusion in this regime of no-fault liability.

The analysis of risk-based liability will be divided into two sections. We will first examine risks arising from dangerous operations, and then those associated with assisting in the public service.

2.1.1. Risks Arising from Dangerous Operations

The classic case of risk-based no-fault liability is Regnault-Desroziers, where the state was held liable for the extensive damage caused to a residential area by the explosion of a military munitions dump.¹⁰ This marked the inception of no-fault liability for abnormal risk to a neighbourhood: where the authorities are responsible for creating an exceptional risk or danger in a neighbourhood, if that risk actually materializes (p.139) damages must be paid for loss inflicted upon neighbouring property and persons.¹¹

However, those commentators who hoped for an overarching principle of liability for ultra-hazardous activity were disappointed. The doctrine in Regnault-Desroziers has been strictly interpreted by the French courts. Although it has been applied in some other cases concerning the explosion of military munitions,¹² and may have been extended to explosions by gas leaks,¹³ the courts have generally refused any wider application than to these exceptional cases.¹⁴ It would thus seem that very few successful claims have been made.¹⁵

Two other categories of risk liability for dangerous activities have developed.¹⁶ First, liability based on risk may arise when bystanders are injured by the police's use of firearms.¹⁷ Again, however, few such claims have been successful,¹⁸ and the courts have refused attempts to broaden the doctrine to encompass injuries caused by teargas¹⁹ and police batons,²⁰ or to compensate those who have actually ‘participated’ in the incident.²¹

Secondly, another extension of this case law, and one which has had more practical impact, can be found in no-fault liability arising from the (p.140) running of liberal prison and borstal regimes.²² These custodial regimes have been adopted in order to facilitate the rehabilitation of the detainees.²³ Such schemes thus have beneficial effects for society as a whole, but also run the risk that the detainees will escape and engage in further criminal behaviour.²⁴ It is thought inequitable that those harmed if this risk materializes should go uncompensated. So, liability can arise without proof of fault for loss caused by those who have taken advantage of these liberal regimes to escape and engage in criminal activity. This line of case law has been applied to youths who have escaped from open borstals,²⁵ and has been extended to mental patients absconding from supervised placements in the community.²⁶ It equally covers those detained in public and private institutions.²⁷ In fact, it is not always necessary for an ‘escape’ to have occurred: the state has been held responsible for the acts of prisoners on home visits or even on probation.²⁸ The breadth of the current position is illustrated by the case in which the state was found liable for a bank robbery undertaken by a gang of criminals who were on probation and day release.²⁹

Deprived of limitation mechanisms at the fault level, the courts have honed other elements of no-fault liability in order to circumscribe the state's financial responsibility. Initially, it was stipulated that the loss must have been caused to a person in the immediate vicinity of the institution. But this geographic limit was soon jettisoned,³⁰ leaving the main control mechanism as causation. The existence of a causal link between the liberal regime and the harm inflicted by the absconder seems to depend primarily on proximity in time:³¹ a few days' delay between escape and offence will suffice;³² more than a month will generally be too long, and consequently the state will no longer be responsible for the absconder's acts.³³

(p.141) Causation is not the sole limit; other control factors exist. Restrictions on the calculation of damages will be examined in depth in a later chapter,³⁴ and their effects in this sphere are apparent.³⁵ A specific note should be made of the fact that no-fault liability applies only to ‘therapeutic regimes which create a special risk for third parties’.³⁶ It does not extend to loss caused by patients on an open ward of a psychiatric hospital.³⁷ More importantly, it generally covers only juvenile delinquents who are detained under a specific regime created by an Order of 2 February 1945,³⁸ and thus excludes loss caused by many other categories of children in care.³⁹ Many claims are rejected on the basis that the regime under which the perpetrators were detained is not covered by the no-fault rule.⁴⁰

The contrast with English law is stark. In the French cases, a liberal regime for offenders has been set up as a conscious policy choice, but the French courts have held that justice requires that those affected by the running of such a system should not go uncompensated. As the regime operates in the public interest,⁴¹ it is argued that the loss cannot merely lie where it falls. In England, the courts have taken a much more restrictive position. We have seen that in the Dorset Yacht case,⁴² the English courts have recognized that borstal officers can owe a duty of care to neighbouring property owners to prevent boys under their control from causing damage to the property.⁴³ Unlike in French law, however, this is based squarely upon liability for fault: carelessness of the warders must be shown.⁴⁴ In France, the right to reparation seems to stem from the policy choice that has been made by the authorities. Liberal regimes incur greater risk of escapes, so compensation ought to be provided to those affected by this policy choice.⁴⁵ In England, the courts have been reluctant (p.142) to impugn the policy choices of the executive, refusing to adjudicate upon such issues in negligence actions.⁴⁶