2.1.2. Risks of Assisting in Public Service Activities

The nineteenth century case of Cames created a category of no-fault liability which provided public servants with damages for injuries they sustained during employment.⁴⁷ In the Cames case, reparation was provided for a worker who lost the use of his hand whilst working in a nationalized munitions factory.⁴⁸

This case has given rise to a strand of no-fault liability which has been extended far beyond industrial accident protection.⁴⁹ Damages have been granted to relatives of conscripts injured or killed during their military service,⁵⁰ and reparation accorded for public servants who have been injured whilst voluntarily performing duties outside the scope of their employment.⁵¹

Damages may also be gained by those who are injured whilst assisting in the public service, even if they are not public servants,⁵² and even if they are acting in a one-off and voluntary capacity.⁵³ The most remarkable illustration of this principle is compensation accorded to those injured whilst rescuing others in danger.⁵⁴ As long as the rescuer's actions (p.143) could theoretically have come within the scope of a local authority's public safety duties,⁵⁵ an action may arise for loss sustained whilst performing that surrogate public service. So, the widow of a man who died whilst trying to save a drowning child was granted damages without anyone being found to be at fault.⁵⁶ Similarly, a man who assisted those injured in a car accident⁵⁷ and a person injured whilst trying to apprehend two bank robbers were afforded protection by this rule.⁵⁸

Given the apparent breadth of such cases, a word must be said about the specific limits on actionability. Rescuers will be compensated only if their actions were ‘urgently required’ and ‘necessary’ in the circumstances.⁵⁹ Injuries sustained whilst assisting in a non-emergency situation thus fall outside the scope of no-fault liability.⁶⁰ Moreover, those who benefit directly from the public service are not covered by this regime.⁶¹ A distinction is thus drawn between public service users and those who assist in providing the public service.⁶² Only the latter may bring actions on the basis of liability without fault. So those who participate in sporting events are not covered by the no-fault rule and must sue on the basis of fault liability.⁶³ Other claims will be rejected if the activities during which the claimant was injured simply do not correspond to a public service.⁶⁴ No action will arise where injured public servants or their dependants are covered by invalidity benefits or pensions.⁶⁵

In line with the general rules of administrative liability, an action may also be rejected for absence of the requisite causal link or for absence of loss. It should be noted that the contributory fault of the victim can significantly reduce the liability of the state.⁶⁶ Despite the potentially broad (p.144) impact of this form of no-fault liability,⁶⁷ surprisingly few successful claims are made.⁶⁸

2.2. Egalité devant les Charges Publiques

The other major category of no-fault liability is that based upon the principle of égalité devant les charges publiques. Compensation is accorded for those who have shouldered a disproportionately large burden or loss caused by activities pursued in the common good.⁶⁹ The importance of this principle in underpinning no-fault liability generally has been recognized by the Conseil Constitutionnel.⁷⁰

French academics disagree about the exact categorization of cases governed by the principle of égalité,⁷¹ but there seem to be three main heads of liability. We will examine in turn no-fault liability deriving from laws, from treaties, and from lawful administrative acts.