- •(P.V) Preface
- •(P.XV) Abbreviations
- •Introduction Duncan Fairgrieve
- •Abstract and Keywords
- •1. Comparative Law Approach
- •2. Delimitation of the Study
- •Overview of State Liability in English and French Law Duncan Fairgrieve
- •Abstract and Keywords
- •1. Introduction
- •2. The Historical Evolution of State Liability
- •2.1. The Early Period of State Liability
- •(P.9) 2.2. The Pre-modern Era
- •2.3. The Inception of Modern State Liability
- •(P.14) 2.4. Conclusion: Vestiges of Immunity?
- •3. Overview of Modern State Liability
- •4. State and Servant
- •(P.20) 4.1. France
- •4.2. England
- •4.3. Elements of Convergence
- •Public Law Unlawfulness and Liability in Damages Duncan Fairgrieve
- •Abstract and Keywords
- •1. Introduction
- •2. The Illegality–Fault Equation in French Law
- •2.1. Illegality as a Necessary Condition of Liability
- •2.2. Illegality as a Sufficient Condition of Fault
- •2.2.1. Traditional Theory
- •(P.33) 2.2.2. Modern Theory
- •(P.36) 3. The Role of Ultra Vires in English Tort Liability
- •3.1. Civil Action for Breach of Statutory Duty
- •3.2. Ultra Vires and Negligence Liability
- •3.2.1. The Status Quo Ante: Unlawfulness as a Precondition of Liability
- •3.2.2. The Barrett and Phelps Cases: Re-evaluating the Role of Public Law Unlawfulness
- •3.3. Public Law Unlawfulness and Other English Torts
- •3.3.1. Community Law
- •3.3.2. Damages under the Human Rights Act 1998
- •4. Conclusion
- •Beyond Illegality: Liability For Fault in English and French Law Duncan Fairgrieve
- •Abstract and Keywords
- •1. Introduction
- •2. English Law
- •(P.59) 2.1. Breach and Duty in the English Law of Negligence
- •2.1.2. The Notion of Proximity and the Test of Fairness, Justice, and Reasonableness
- •(P.64) 2.1.2.1. The Restrictive Approach to Duties of Care of Public Authorities
- •2.1.2.2. Recent Cases on Public Authority Liability: a Shift in Emphasis?
- •2.1.2.3. The House of Lords' Decisions in Barrett and Phelps
- •2.1.2.4. The Decisions of the European Court of Human Rights
- •2.1.2.5. The New Approach to Public Authority Liability
- •2.1.2.6. Move Away from Duty: a More Nuanced Approach to Policy Considerations
- •2.1.2.7. Move Away from Duty: a Shift to Breach
- •2.2. Beyond Negligence: Public Authority Liability in Tort
- •2.2.1. Misfeasance in Public Office
- •2.2.1.1. Introduction
- •2.2.1.2. Constituent Elements of Misfeasance in Public Office
- •2.2.1.3. The Place of Misfeasance in State Liability
- •2.2.2. Nuisance
- •2.2.3. Conclusion
- •3. French Law
- •3.1. The Notion of Faute de Service
- •(P.106) 3.2. Graded Standards of Fault in French Administrative Law
- •3.2.1. The Notion of Faute Lourde in French Administrative Law
- •3.2.1.1. Medical Sphere
- •3.2.1.2. Regulatory Authorities
- •3.2.1.3. Administrative Police
- •3.2.1.4. Emergency Services
- •3.2.1.5. Conclusion
- •3.2.2. Defining Faute Lourde
- •3.2.3. Theoretical Foundations of Faute Lourde
- •3.2.4. The Future of Graded Standards of Fault in French Administrative Law
- •3.3. Presumptions of Fault
- •3.4. Procedural Impact
- •4. Comparative Law Remarks
- •(P.125) 4.1. Signs of Similarity?
- •4.2. Comparative Lessons for the Application of Policy Concerns
- •Lawfully Caused Loss Duncan Fairgrieve
- •Abstract and Keywords
- •1. Introduction
- •2. French Law
- •2.1. Risk-based No-fault Liability
- •2.1.1. Risks Arising from Dangerous Operations
- •2.1.2. Risks of Assisting in Public Service Activities
- •2.2. Egalité devant les Charges Publiques
- •2.2.1. Legislation and Compensation
- •2.2.2. Liability Arising from Treaties
- •2.2.3. Liability for Lawful Administrative Acts
- •2.2.4. Conditions of Actions for Breach of Egalité
- •2.3. Miscellaneous Categories of No-fault Liability
- •2.3.1. Loss Arising From Public Works
- •2.3.2. Facilitating Reparation in the Medical Sphere
- •2.3.3. Statutory Regime
- •2.4. Conclusion
- •3. English Law
- •(P.155) 3.1. Nuisance
- •3.2. Rylands V Fletcher
- •(P.159) 3.3. The Influence of Human Rights Law
- •3.4. Other Regimes of No-fault Liability
- •(P.162) 4. Conclusion
- •Assessing the Causal Link Duncan Fairgrieve
- •Abstract and Keywords
- •1. Introduction
- •2. An Overview of the Tests of Causation in English and French Law
- •2.1. English Law
- •2.2. French Law
- •2.2.1. Orthodox Approach
- •2.2.2. Nuanced Approach
- •3. Comparing Approaches to Causal Problems
- •3.1. Multiple Causes
- •3.1.1. Act of a Third Party
- •(P.177) 3.1.2. Contributory Fault of the Injured Party
- •3.1.3. Act of Nature
- •3.2. Causation and Unlawful Administrative Acts
- •4. Conclusion
- •Damage and Compensation Duncan Fairgrieve
- •Abstract and Keywords
- •1. Introduction
- •1.1. French Administrative Law
- •(P.192) 1.2. English Law
- •2. Economic Loss30
- •2.1. Contrasting Stances Regarding Pure Economic Loss
- •2.1.1. English Law
- •2.1.2. French Law
- •2.2. Signs of Convergence
- •2.2.1. French Law: Limitations on Recovery?
- •2.2.2. Alternative Remedies in English Law
- •2.3. Conclusion
- •3. Loss of a Chance
- •3.1. The Lost Chance Doctrine in English Law
- •3.2. Damages for Lost Chances in French Law
- •3.3. Doctrinal Debate
- •(P.210) 3.4. Conclusion
- •4. Moral Damage in English and French Law
- •(P.211) 4.1. Préjudice Moral in French Law
- •4.1.1. Reluctance in Awarding Damages for Préjudice Moral
- •(P.213) 4.1.2. Status Quo
- •(P.214) 4.2. Non-pecuniary Loss in English Law
- •4.3. Comparative Law Comments
- •5. Damages for Injury to the Person
- •5.1. Basic Principles
- •(P.222) 5.2. Points of Divergence
- •5.2.1. General Comparative Remarks
- •(P.225) 5.2.2. Comparing the Treatment of Collateral Benefits348
- •6. Death and Damages Liability
- •6.1. Death Extinguishing a Right of Action
- •6.2. Right of Action Deriving From Death: Compensating Secondary Victims
- •6.2.1. French Law
- •6.2.2. English Law
- •6.2.3. Comparative Law Remarks
- •7. Property Damage
- •8. Conclusion
- •Alternative Means of Redress Duncan Fairgrieve
- •Abstract and Keywords
- •1. Introduction
- •2. France
- •3. England
- •3.1. Investigation by Ombudsman
- •(P.250) 3.2. Internal Procedures Providing Redress for Maladministration
- •4. Compensation Schemes in England and France
- •(P.254) 5. The French Medical Compensation System
- •6. Conclusion
- •Conclusion Duncan Fairgrieve
- •Abstract and Keywords
- •1. Similarities and Differences
- •(P.265) 2. Accounting for the Differences
- •2.1. Introduction
- •2.2. Difference in Philosophy
- •2.3. Procedural Factors
- •3. Learning from Comparative Law
- •3.1. Comparative Law and the Courts
- •3.2. Comparative Law and State Liability
- •3.2.1. Public Law Unlawfulness and Liability
- •(P.275) 3.2.2. Alternative Methods of Redress
- •3.2.3. Challenging Policy Concerns
- •3.2.4. Establishing a Balanced Approach to State Liability
- •(P.279) 3.2.4.1. Breach of Duty
- •3.2.4.2. Quantum of Damages
- •3.2.4.3. Causation
- •4. Conclusion
- •(P.285) Appendix
- •Illegality entails fault.
- •(P.287) 1. Tc 8 February 1873, Blanco, d.1873.3.17
- •1. Decision in French
- •(P.288) 2. Translation
- •(P.289) 2. Ce 21 June 1895, Cames [1895] Rec 509
- •1. Translation
- •1. Decision in French
- •2. Translation
- •1. Translation
- •1. Decision in French
- •2. Translation
- •(P.297) 6. Ce 26 January 1973, Driancourt [1973] Rec 78
- •Illegality entails fault
- •1. Decision in French
- •2. Translation
- •(P.301) 7. Ce 27 January 1988, Giraud [1988] Rec 39
- •1. Decision in French
- •(P.303) 2. Translation
- •(P.304) 8. Ce 29 December 1999, Communauté Urbaine de Lille [1999] Rec 436
- •1. Decision in French
- •2. Translation
- •(P.310) 9. Ce 28 June 2002, Magiera, Req 239575
- •1. Decision in French
- •2. Translation
- •1. Decision in French
- •2. Translation
- •(P.325) Bibliography
Damage and Compensation Duncan Fairgrieve
DOI:10.1093/acprof:oso/9780199258055.003.0007
Abstract and Keywords
This chapter aims to provide accounts of the most significant similarities and differences of legal rules on the issues of damages caused by administrative wrongdoings (economic loss, loss of a chance, moral damages, damages for injury to the person, death and damages liability, and property damages) in English and French laws. Though French law holds a wider jurisdiction than English law, it is flawed — liberalism in their system is sometimes more apparent than real — with restrictions and control mechanisms at play, such as rare findings of requisite entry and careful causation examinations. The French judiciary takes into consideration influential policies regarding types of recoverable loss and the quantification of damages. The measurement of damages for personal injury and dependency loss in particular are seemingly unfavourable in the French system.
Keywords: damages, administrative wrongdoings, French law, English law, liberalism, control mechanisms, recoverable loss
1. Introduction
The issue of damage caused by administrative wrongdoing has been somewhat overlooked in studies concerning the comparative law of state liability. And yet this is an essential piece of the tort and delict jigsaw. A system which conceives fault widely will be of reduced utility for the victims of wrongdoing if the categories of compensable loss are unduly restricted or the methods of measuring damages are unrealistic. The objective of this chapter is not to provide an exhaustive overview of the rules in the two legal systems. The aim is rather to provide an account of the most significant similarities and differences from a comparative law perspective.
The objective of damages in tort and delict is to restore the injured party to the position in which he or she would have been absent the tort.1 But, an additional point should be made at this juncture. Damages in the common law are by no means exclusively compensatory. Nominal damages, contemptuous damages, and exemplary damages are all avowedly non-compensatory.2 Exemplary or punitive damages are of most relevance to state liability.3 In English law, punitive damages are designed to express the court's disapproval of the defendant's exceptionally bad conduct, and may be awarded inter alia for oppressive, arbitrary, or unconstitutional action by servants of the government.4 Until recently, the award of exemplary damages was limited by means of the ‘cause of action test’, restricting the grant of such damages to those causes of action for which exemplary damages have been awarded prior to Rookes v Barnard5 in 1964.6 This rule precluded the awarding of such damages for the torts of negligence7 and public nuisance.8 However, in a recent case the House of Lords refused to strike out an action for the award of exemplary damages for misfeasance in public office, rejecting the ‘cause of (p.190) action test’ as a limiting factor upon the award of such damages.9 This decision will no doubt have a liberalizing effect on the award of exemplary damages. Until this decision, exemplary damages were most commonly encountered in actions against the police for assault, false imprisonment, and malicious prosecution.10
In contrast, non-compensatory damages are prima facie contrary to the underlying principles of responsabilité administrative in France.11 But principle and practice can diverge. The lower courts' ‘sovereign power of assessment’12 in awarding damages provides a veil behind which, as in French civil law,13 a punitive element for egregious fault may be included.14 More open derogations from this principle may be found in the practice of levying punitive damages when a public body delays executing a court's judgment,15 and the award of nominal damages for wrongs on reputation.16
The focus of this study will be on compensatory damages. Some brief initial remarks will be made about the two systems.