2.3. The Inception of Modern State Liability

The start of modern governmental liability in England and France is to be found—rather surprisingly for representatives of the common law and civil law traditions—in an English statutory provision, the Crown Proceedings Act 1947, and in a French judicial decision, the Blanco case of 1873.

In English law, the Crown Proceedings Act 1947 provides that the Crown is equated with a private person of full age and capacity in respect of tortious liability.⁵³ Although the Crown is thus placed in the position of an ordinary litigant, the continuing idiosyncrasies of Crown liability means that further explanation is required. Generally, an action against the Crown is actually brought against the relevant government department or, in default, the Attorney-General.⁵⁴ Under the Act, the Crown can be vicariously liable for the torts committed by its servants or agents, including an independent contractor.⁵⁵ Liability can also derive from breach of statutory duty as long as this duty is also binding upon other persons.⁵⁶ Specific rules exclude from Crown liability acts of the police and certain statutory corporations. Instead, the rules of vicarious liability apply both to chief constables⁵⁷ and, as noted above, to statutory corporations.⁵⁸ The Crown Proceedings Act 1947 is not without its flaws,⁵⁹ and some confusion still prevails.⁶⁰

In France, the turning point came with the Tribunal des Conflits case of 8 February 1873, known as l'arrêt Blanco.⁶¹ Agnès Blanco was injured by a wagon owned by the public sector Tobacco Administration, and an action was brought before the courts. The judgment of the Tribunal des Conflits (p.13) was very important. Relying on the principle of the separation of powers,⁶² the Tribunal accorded jurisdiction to the administrative courts to hear actions brought against the state ‘for damages caused by the actions of persons which it employs in the public service’.⁶³ The Tribunal des Conflits thus enunciated the principle of state liability. With some audacity,⁶⁴ it explicitly rejected the application of the rules stated in the Code Civil relating to delict.⁶⁵ The rules of administrative liability were held to be of a distinct and special character. The need to balance the exercise of private rights with the general public interest required certain limits to be placed upon the regime of state liability. Administrative liability could be neither ‘general nor absolute’. The ratio of Blanco initially applied solely to central government,⁶⁶ but the jurisdiction of the administrative courts was extended to decentralized local authorities in the case of Feutry in 1908.⁶⁷

In the immediate aftermath of the Blanco case, liability of the state was stilted. A whole swathe of governmental acts, actes d'autorité, were declared to be non-justiciable. These acts generally involved the administration exercising powers specific to the executive, such as the implementation and enforcement of laws.⁶⁸ The remaining administrative acts, actes de gestion, could give rise to liability in damages.⁶⁹ Significantly, the immunity for actes d'autorité was explained by commentators in policy terms reflected in modern English law. It was believed that an explosion in damages liability would suppress innovation, and the cost of providing compensation would be a crippling burden upon the administration.⁷⁰ The immunity prevailed for a number of years until, under academic critique⁷¹ and the waning influence of the theory's originator,⁷² it was abandoned in the police case of Tomaso Grecco.⁷³