4. State and Servant

In this section, we will look at the question of when public bodies will be held liable for the acts of their servants. In assessing the scope and extent of state liability, much depends upon the delimitation of the liability of an employer or the state for the acts of its agents. We will first look at the way in which state liability for the acts of servants has been shaped in France and England. This will be followed by a comparative law section in which it will be argued that, despite initial differences, there are many parallels in the solutions adopted in the two systems.

(P.20) 4.1. France

For a long time, actions against individual public servants in their personal capacity before the French civil courts were thwarted by the need to gain the prior authorization of the Conseil d'Etat.¹²⁰ Such authorizations were very rarely granted.¹²¹ This quasi-immunity of fonctionnaires was abrogated by a decree of 1870,¹²² which was said to have been influenced by the civil liability of public servants in English law.¹²³ But it was not the English approach which the Tribunal des Conflits chose to adopt when it gave the definitive reading of the 1870 decree in the case of Pelletier.¹²⁴ The Tribunal drew a distinction between actes d'administration and personal acts. The principle of the separation of the administration and the judiciary entailed that cases involving administrative acts went before the administrative courts, whereas the juges judiciaires had jurisdiction over cases concerning personal acts of individual civil servants. In subsequent cases, the notion of ‘administrative acts’ metamorphosed into the broader notion of faute de service, and the Pelletier case is thus seen as having sown the seeds of the dichotomy between faute de service and faute personnelle.¹²⁵

Deriving from this case law, the basic principle is that public bodies are liable for a faute de service before the administrative courts. On the other hand, if a public servant's conduct amounts to a faute personnelle, then the public officer will be personally liable and the action proceeds before the ordinary, civil courts.¹²⁶ Defining the respective territories of faute de service and faute personnelle is difficult owing to the judicial reluctance to give coherent guiding principles. Various attempts have been made to fill the gap left by the courts.¹²⁷ Laferrière famously stated in his conclusions (p.21) in the case of Laumonnier-Carriol that a faute personnelle was a fault ‘which is not linked to the public service but reveals the man with his weaknesses, his passions, his imprudence’.¹²⁸ In truth this much-cited phrase does little to clarify the situation, and we must look to the case law for further indications.

The courts take account of various factors in determining whether a faute personnelle has occurred.¹²⁹ First, the courts will be influenced by the state of mind of the public servant concerned.¹³⁰ Evidence of corruption or personal gain will generally entail a personal fault.¹³¹ Where acts are motivated by vengeance, then this will influence the courts towards finding a faute personnelle.¹³² Secondly, violence or the use of disproportionate force will entail personal fault,¹³³ as evidenced in the case of Kessler, when a postman struck a person whilst delivering mail.¹³⁴ Thirdly, the courts will find a faute personnelle where the defendant's professional misfeasance or nonfeasance is exceptionally serious.¹³⁵ So, a doctor committed a personal fault when he repeatedly refused to return to hospital to operate on a patient even though he was on call.¹³⁶ Acts committed whilst drunk generally incur the liability of the individual.¹³⁷

On the other hand, a faute de service is commonly perceived as a corporate notion of fault, where the public body is directly liable for systemic faults. The notion of faute de service will be examined in more depth in Chapter 4.¹³⁸ At this stage, we will focus upon its relationship with faute personnelle. Originally, the administrative courts saw these notions as mutually exclusive: the impugned act of a public servant had to be qualified as either a faute personnelle or a faute de service. No act could bridge (p.22) the divide.¹³⁹ This principle of autonomy was gradually undermined by the courts. Some saw the case of Anguet as a break from the old cases.¹⁴⁰ A customer was injured when brutally ejected from the back door of a post office by a postal worker. The Conseil d'Etat held that both a faute personnelle and a faute de service had occurred. The violent actions of the postal worker were clearly a faute personnelle, but the premature closure of the post office's front doors also constituted a faute de service. The court thus identified two individual and factually distinct fautes which caused the same injury.

More significant, however, are the subsequent cases in which the courts recognized that dual liability could arise from a single act. In the famous case of Lemonnier,¹⁴¹ the Conseil d'Etat held that the negligence of a mayor in organizing a shooting gallery a short distance from a public footpath could constitute both a faute personnelle and a faute de service. The court thus abandoned the doctrine of autonomy.¹⁴² Allowing the co-existence of faute personnelle and faute de service was of evident advantage to the injured party, who could sue either the individual civil servant or the public authority, and would usually decide upon the latter due to the greater depths of its pockets.

Subsequent decisions have increased the situations in which a faute de service is found contemporaneously with a faute personnelle. This has been achieved by allowing dual liability when impugned acts are non dépourvue de tout lien avec le serviced¹⁴³ This test has been used to establish state liability for car crashes caused by public servants on unauthorized detours,¹⁴⁴ and accidents involving public agents cycling to and from their workplaces.¹⁴⁵ The breadth of the test is illustrated by two police cases. In Sadoudi, an off-duty policeman accidentally shot his friend with his service pistol.¹⁴⁶ The court held that the accident was ‘not unconnected with the service’ as the policeman was obliged to keep his weapon at home, thus creating a danger for third parties.¹⁴⁷ Even more remarkably, in the case of Raszewski,¹⁴⁸ the state was found liable to the family of a (p.23) young girl who was killed by an off-duty police officer during a criminal spree lasting eight months. The perpetrator's post as a police officer had enabled him to evade detection and prevented him from being apprehended before he had killed Mlle Raszewski, thus constituting the necessary link with the police service to incur the state's liability.

The test of non dépourvue de tout lien avec le service has been frequently used by the courts, but has not escaped criticism.¹⁴⁹ It would seem that a claimant will be prevented from bringing an action against the administration only when the public servant's acts ‘have no connection with public service’.¹⁵⁰