2.3.3. Statutory Regime

There are also other statutory regimes creating no-fault liability schemes. These will be examined further at a later stage,¹⁵⁹ but examples of statutory funds which provide compensation without the need to prove administrative fault are:¹⁶⁰ statutory compensation funds for injuries caused by obligatory vaccinations¹⁶¹ and for contamination by HIV infected blood.¹⁶²

2.4. Conclusion

We have seen that no-fault liability in French law covers disparate areas of public sector activity. In one sense, these pockets of no-fault liability in (p.154) French administrative law have similarities with the patchwork system of individual torts in English law. The different categories of no-fault liability are subject to different rules and are underpinned by different theoretical principles. What they all have in common is that they are governed by restrictive conditions of application.

No-fault liability in French administrative law is pervaded by confusion. There is still a good deal of doubt about the principles which underpin no-fault liability.¹⁶³ Even the present scope of no-fault liability is somewhat unclear.¹⁶⁴ Its future direction and expansion are also uncertain.¹⁶⁵

3. English Law

There are a number of English torts which could provide parallels to the heads of no-fault liability in French law. The constituent elements of the tort of breach of statutory duty, which was studied in an earlier chapter,¹⁶⁶ have parallels with the French cases of responsabilité sans faute.¹⁶⁷ In particular, the deference to legislative intention illustrated in French law liability for legislative acts is reminiscent of the somewhat unsatisfactory approach to determining the legislative intention in the tort of breach of statutory duty. Moreover, a similar presumption against actionability applies to both French law liability for legislative acts and breach of statutory duty.¹⁶⁸ But these are very different causes of action. Evidently, the English tort requires the breach of duties laid down by statute, whereas the French heads of no-fault liability concern liability for loss which is lawful in a public law sense.

In this section we will investigate the relevant English torts of strict liability. We will first examine the tort of nuisance, followed by the only dedicated tort of risk-based liability, Rylands v Fletcher. The impact of human rights law on no-fault liability will then be analysed. Finally, we will look at the other regimes of no-fault liability which occur in English law.

(P.155) 3.1. Nuisance

The elements of the tort of nuisance were analysed in the previous chapter.¹⁶⁹ This section will be restricted to an analysis of the way in which nuisance may be a tort of strict liability. Traditionally, a distinction was drawn between a defendant who had created a nuisance and one who had continued a pre-existing nuisance.¹⁷⁰ The former could be liable for nuisance on the basis of strict liability, whereas liability of the latter was premised upon fault. However, doubt has subsequently arisen about the usefulness of this distinction in determining the standard of liability.¹⁷¹ It would seem that the broader trend is against strict liability in the tort of nuisance.¹⁷² Nonetheless, some comments of Lord Goff in Cambridge Water Co Ltd v Eastern Counties Leather Plc, may be read as maintaining the potential for strict liability in nuisance.¹⁷³ This is supported by the proximity of this tort with that premised on the rule in Rylands v Fletcher.¹⁷⁴

Some similarities can be detected between the tort of nuisance and French law responsabilité sans faute. The English tort of nuisance can be applied in situations which mirror the French law action for interference to land caused by travaux publics. But the move away from strict liability in English law evidently reduces the resemblance. It is also doubtful whether damages for personal injury may be recovered in the tort of nuisance (or Rylands v Fletcher)¹⁷⁵ Another important difference is to be found in the defence of statutory authorization, which we have already looked at in depth.¹⁷⁶ The effect of this defence is that loss which is the inevitable result of the exercise of a statutory power or duty will not be actionable in nuisance.¹⁷⁷ This provides an important protection for public authorities. The underlying justification of this defence is explained in the following passage, which illustrates the difference between English law and the French notions of equality before the public burdens:

The underlying philosophy plainly is that the greater public interest arising from the construction and use of undertakings such as railways, must take precedence (p.156) over the private rights of owners and occupiers of neighbouring lands not to have their common law rights infringed by what would otherwise be actionable nuisance. In short, the lesser private right must yield to the greater public interest.¹⁷⁸