4. Conclusion

We have seen that not only are the English and French law approaches to governmental liability closer than traditionally might be thought,¹⁶² but (p.284) in fact there are possible means of dialogue between common law and civil law systems. We have predominantly focussed upon how English law might learn from approaches adopted elsewhere. Of course, comparative law is by no means a one-way street. There are also ways in which French law might learn from English Law. Although this is not the forum in which to deal with this in great detail, one particular example may however be permitted, namely alternative means of redress. The French system has had particular difficulties in reducing litigation by encouraging recourse to less formalistic avenues. The side effects of this overemphasis on the resolution of grievances by judicial means are well-known.¹⁶³ It may well be that reference to the significant progress in English law in this sphere could provide a reference point for the French system.¹⁶⁴

Notes:

(1) See Chap. 3 for a fuller discussion of this.

(2) See Chap. 4.

(3) See Chap. 2.

(4) See Chap. 2, sect. 4.

(5) See Chap. 4, sect. 4.1.

(6) Ibid.

(7) See Chap. 8, sect. 3.

(8) See Chap. 6 for a fuller discussion of this.

(9) I. Mariani-Benigni, ‘L’ 〈〈exception de risque accepté〉〉 dans le contentieux administratif de la responsabilité, RDP 1997.84, 875 ff. See Chap. 6, sect. 3.1.2.

(10) See Chap. 7.

(11) See Chap. 7, sect. 2.3.

(12) See Chap. 7, sect. 3.

(13) See Chap. 7, sects. 5.2 and 6.2.3.

(14) Due to the very different style of French decisions. Note that a number of English translations of French administrative law cases may be found in the Appendix.

(15) J. Bell, ‘Reflections on the Procedure of the Conseil d'Etat’ in G. Hand and J. McBride, Droit Sans Frontières (Birmingham, 1991) .

(16) M. Lasser, ‘Judicial (Self-)Portraits: Judicial Discourse in the French Legal System’ (1995) 104 Yale LJ 1325 .

(17) This may be seen in many conclusions of Commissaires du Gouvernement but is particularly striking in: CG Hubac's (unpublished) conclusions in CE 10 Dec. 1986, Robert [1986] Rec 701; CG Touvet's (unpublished) conclusions in CE 6 Oct. 2000, Commune de Saint-Florent, RFDA 2001.152.

(18) See for instance the attempt by both a Commissaire du Gouvernement in his conclusions (CE 30 Nov. 2001, Kechichian, conclusions Seban, Les Petites Affiches, N° 28, 7 Feb. 2002, 7) and members of the Conseil d'Etat extrajudicially (M. Guyomar and P. Collin, AJDA 2002.133) to explain in coherent conceptual terms the differing administrative courts' decisions on faute lourde and lay down ‘the delimiting criteria for the application of faute lourde’: ibid., 133. Consistency also plays a role in the relationship between the civil and administrative courts. CG Chauvaux deployed just such an argument in a medical liability case concerning the issue whether death should extinguish a claim for moral harm. He argued that ‘[e]ven if the liability of public bodies is governed by specific rules, which are not those of the Civil Code, a difference in approach concerning the right of action for the heirs of an injured victim is evidently inopportune, especially when the two judicial orders are called upon in the sphere of medical liability to decide similar factual situations which would seem to call for similar solutions’: CE 29 Mar. 2000, Assistance Publique-Hopitaux de Paris, RFDA 2000.850, 853.

(19) Predominantly in respect of the use of faute lourde (although not unanimously accepted: see the discussion in Chap. 4, sect. 3.2.3), but also in the earlier immunity of actes d'autorite (see p. 13 above). See also Deguergue's comments in respect of the French courts' attitude to the contributory fault of the victim: p. 182 above.

(20) J.-C. Hélin has observed that ‘it is difficult to deny that the financial argument, invoked by the doctrine in order to restrict the ambit of liability, has been taken into account in the case law itself’: Faute de Service et Préjudice dans le Contentieux de la Responsabilité pour Illégalité (Thesis, L'Université de Nantes, 1969) 63. C. Bréchon-Moulènes has argued that ‘[o]ne should not therefore underestimate the impact of financial concerns on the policy underlying the case law’: Les Régimes Législatifs de Responsabilité Publique (Paris, 1974) 480 . See also academics' comments regarding the French courts' attitude to the contributory fault of the victim pp. 181 and 182 above. Commissaires du Governement have occasionally referred to the financial impact of damages liability on the public purse (see CG Braibant's conclusions in CE 26 May 1965, Tebaldini [1965] Rec 305). CG Frydman has referred his fellow judges to the ‘desire to protect the public purse which generally underlies your case law’ (unpublished conclusions in CE 24 Mar. 1995, SARL Nice Helicopteres, Req 129415). The French courts and the legislator have sometimes taken account of cost implications in determining fault: see Chap. 4, sect. 4.1, nn. 538–9.

(21) There have been references to floodgates-style arguments: see CG Bertrand's fears of exponential liability resulting from the negligent interruption of a public service, such as electricity, in his conclusions in CE 25 Feb. 1972, Thomson [1972] Rec 168; and the comments of J. Bell, ‘Reflections on the Procedure of the Conseil d'Etat’ in G. Hand and J. McBride, Droit Sans Frontières (Birmingham, 1991) 226 . See also the principles underlying the traditional theory that an invalid administrative decision did not ipso facto entail administrative fault: p. 32 above; Dupichot's reference to the ‘tidal-wave’ problem in respect of ricochet loss: p. 229 above; CG Chauvaux's comments when addressing the question whether death should extinguish a claim for non-pecuniary loss: p. 133 above.

(22) See p. 115 above.

(23) P. 115 above. See also the comments of W. van Gerven, J. Lever, and P. Larouche, Tort Law (Oxford, 2000) 390 .

(24) See the discussion in Chap. 7, sect. 8.

(25) Markesinis and Deakin, 386; C. von Bar, The Common European Law of Torts (Oxford, 1998) i, para. 553 .

(26) See Chap. 4, sects. 2.1.2.4 (negligence), 2.2.1.3 (misfeasance), 2.2.2 (nuisance). See also Chap. 5, sect. 3.3.

(27) In France, the Conseil Constitutionnel has implicitly elevated Art. 1382 of the Code Civil to the status of a constitutional principle (CC 9 Nov. 1999, Loi rélative au Pacte Civil de Solidarité [1999] Recueil des Décisions du Conseil Constitutionnel 116). In terms of administrative liability, the Conseil Constitutionnel has recognized the importance of the principle underlying much of the no-fault liability of the state, equality before the public burdens, but has been more reticent in expressing a constitutional principle of administrative liability for fault (CC 4 July 1989, Privatisations [1989] Recueil des Décisions du Conseil Constitutionnel 41). On the other hand, limits have been placed on the extent to which administrative liability can be reduced by legislative intervention, so that a law which greatly restricted actions for loss caused by public works was found to be unconstitutional (CC 13 Dec. 1985, Amendement Tour Eiffel [1985] Recueil des Décisions du Conseil Constitutionnel 78).

(28) Deriving from Art L 160–5 of the Code del'Urbanisme.

(29) In the (unpublished) conclusions of CG Courtial in CE 30 Nov. 2001, Diop, Req 212179.

(30) CE 28 June 2002, Magiera, Req 239575. A translation of this case may be found in the Appendix.

(31) Se Chap. 2, sect. 2.

(32) See the discussion of the decision in Marcic v Thames Water Utilities Ltd [2002] 2 WLR 932 in Chap. 5, sect. 3.3.

(33) See the contrasting approaches to five factual scenarios: B. Markesinis, J.-B. Auby, D. Coester-Waltjen, and S. Deakin, Tortious Liability of Statutory Bodies: A Comparative and Economic Analysis of Five English Cases (Oxford, 1999) .

(34) See, e.g., M. Deguergue, ‘Le Contentieux de la Responsabilite: Politique Jurisprudentielle et Jurisprudence Politique’, AJDA 1995.211, 220; E. Souteyrand, ‘La Responsabilité de l'Administration’ AJDA (numéro spécial) 1999.92; Paillet, para. 11; Guettier, 138 ff.

(35) M. Sousse, La Notion de Réparation de Dommages en Droit Administratif Trancais (Paris, 1994) 134 ; M. Deguergue, Jurisprudence et Doctrine dans l'Elaboration du Droit de la Responsablité Administrative (Paris, 1994) 688 ff .

(36) One should note the phenomenon of the ‘socialization of risks’ whereby loss is system atically shifted to the state on the basis of risk liability: J.-M. Cotteret, ‘Le Regime de la Responsabilité pour Risques en Droit Administratif’ in Etudes de Droit Public (Paris, 1964) 377 ; G. Berlia, ‘Essai sur les Fondements de la Responsabilite Civile en Droit Public Francais’, RDP 1951.685; M. Mignon, ‘La Socialisation du Risque’, D.1947 Chronique 37.

(37) This principle of constitutional significance has been identified by a respectable body of academic commentators as underpinning all governmental liability: see Chap. 5, sect. 2.2, n. 71.

(38) The principle of social solidarity has been seen as an important foundation for the granting of compensation. Solidarity is an amorphous concept (Sousse, n. 35 above, 144) which when applied to state liability has been described at its most simplistic level as a duty of solidarity owed by the community to citizens injured by state activity (C. Schaegis, Progres Scientifique et Responsabilité Administrative (Paris, 1998) 42 ). The principle was invoked in the Constitution of 1946 in respect of national calamities (para. 12). The statutory scheme for compensating those infected with HIV by blood products (Law of 31 Dec. 1991) was explicitly based on social solidarity. Solidarity has also been seen to underpin the new no-fault liability regimes in the medical sphere (D. Philipp, ‘De la Responsabilité à la Solidarité des Personnes Publiques’, RDP 1999.593; Conseil d'Etat, ‘Réflexions sur le Droit de la Santé’, EDCE 1998.254).

(39) J.-P. Gilli, ‘La Responsabilite d'Equité de la Puissance Publique’, D.1971 Chronique 125.

(40) M. Deguergue, ‘Le Contentieux de la Responsabilité: Politique Jurisprudentielle et Jurisprudence Politique’, AJDA 1995.211.

(41) C. Harlow and R. Rawlings, Law and Administration (2nd edn, London, 1997) 69 ; M. Loughlin, Public Law and Political Theory (Oxford, 1992) 112–13 . See also the comments of G. Monti, ‘Osman v. UK—Transforming English Negligence Law into French Administrative Law?’ (1999) 48 ICLQ 757, 772–3 .

(42) Burmah Oil v Lord Advocate [1964] 2 All ER 348, 355. Compensation for vaccine damage seemed to be based on principles of égalité (see Chap. 8, sect. 4, n. 126) although Prof. Bell has argued that the real justification is social solidarity: J. Bell, ‘Governmental Liability in Tort’ (1996) 6 NJCL 85, 92 .

(43) G. Samuel, The Foundations of Legal Reasoning (Maklu, 1994) 78 ff .

(44) Dunne v North Western Gas Board [1964] 2 QB 806, 832. Though the human rights influence may be changing this: Marcic v Thames Water Utilities Ltd [2002] 2 WLR 932. See the discussion in Chap. 5, sects. 3.2 and 3.3.

(45) Allen v Gulf Oil Ltd [1981] AC 1001, 1023. See also Welton v North Cornwall DC [1997] 1 WLR 570, 585 (Ward LJ).

(46) R. Chapus, Droit du Contentieux Administratif (9th edn, Paris, 2001) para. 958 ; O. Gohin, Contentieux Administratif (Paris, 1999), para. 264 . The administrative judge plays an interventionist role, and the procedure is undoubtedly much more inquisitorial than conventional common law proceedings (see CE 25 July 1975, Ville de Lourdes [1975] Rec 445: the judge ‘directs’ the proceedings). However, as John Bell correctly points out, the Conseil d'Etat follows a qualified inquisitorial procedure, certainly in contrast to the approach of the French juge d'instruction: see J. Bell, French Legal Cultures (Butterworths, London, 2001) 160–2 .

(47) See generally J. Bell, ‘Reflections on the Procedure of the Conseil d'Etat’ in G. Hand and J. McBride, Droit Sans Frontières (Birmingham, 1991) ; Brown and Bell, chap. 5; Allison, chap. 10.

(48) J. W. F. Allison, A Continental Distinction in the Common Law (Oxford, 1996) .

(49) Ibid., 221 .

(50) See Chap. 4, sect. 3.4.

(51) See the texts in n. 47 above.

(52) See for instance the difference in the treatment of state liability for failures in banking supervision in the two judgments of the HL in Three Rivers DC v Bank of England [2000] 2 WLR 1220 and [2001] UKHL 16 and CG Seban's remarkable conclusions in CE 30 Nov. 2001, Kechichian, Les Petites Affiches, N° 28, 7 Feb. 2002, 7, in which CG Seban gave a tour d'horizon of comparative law solutions, as well as examining the broader regulatory framework, the underlying policy issues, the exact type of loss (purely economic), and the underlying tension between two different considerations, ‘the nature, difficulty, and needs’ of the public service on the one hand and ‘the nature of the victim's interests.’ For the comparative law discussion in this case see p. 270 below.

(53) Allison, 212 ff.

(54) [1970] AC 1004,1067. As opposed to the negligence arising from the implementation of that chosen framework.

(55) See also the set menu of policy factors which have been repeatedly invoked to deny a duty of care (Chap. 4, sect. 2.1.2.1) and the effect of the public law hurdles (Chap. 3, sect. 3).

(56) Dorset Yacht v Rome Office [1970] AC 1004; Anns v Merton LBC [1978] AC 728; Hill v Chief Constable of West Yorkshire [1989] AC 53; X (Minors) [1995] 2 AC 633; Barrett v Enfield LBC [2001] 2 AC 550.

(57) Where the striking-out application was made on the ground that the pleading disclosed no reasonable cause of action, no evidence was admitted by the court: Order 18, Rule 19(2), Rules of the Supreme Court.

(58) P. Craig and D. Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ [1999] PL 626, 637.

(59) Barrett v Enfield LBC [2001] 2 AC 550, 557 and 574–5. In Kent v Griffiths, Lord Woolf held that ‘the adverse response of the European Court of Human Rights in Osman v United Kingdom [1999] 1 FLR 193 may be influencing the House of Lords to adopt a more restrictive approach to the exclusion of liability to categories of cases without first ascertaining their precise facts’: [2001] QB 36, 50.

(60) Civil Procedure Rules 1998.

(61) Evidence of which emerges in some recent cases, particularly S v Gloucestershire CC, concerning two joined appeals in which claimants alleged that the local authorities had acted negligently in placing them with their foster parents and in subsequent monitoring their placements: [2001] 2 WLR 909. See the discussion of this case at p. 86 above.

(62) As envisaged by the Lord Chancellor: Hansard, HL Debs., vol. 583, cols. 832–833. (24 Nov. 1997).

(63) Known as an ‘assessor’ (r 35.15).

(64) J. Hartshorne, N. Smith, and R. Everton, ‘Caparo Under Fire: A Study into the Effects upon the Fire Service of Liability in Negligence’ (2000) 63 MLR 502, 520 .

(65) K. Zweigert and H. Kötz, An Introduction to Comparative Law (3rd edn, Oxford, 1998) 11 ; A. Peters and H. Schwenke, ‘Comparative Law beyond Post-Modernism’ (2000) 49 ICLQ 800, 830 .

(66) J. Bell, ‘Mechanisms for Cross-Fertilisation of Administrative Law in Europe’ in J. Beatson and T. Tridimas (eds.), New Directions in European Public Law (Oxford, 1998) 157 .

(67) Winfield and Jolowicz, para. 2.7. See, e.g., Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; McFarlane v Tayside Health Board [2000] 2 AC 59, 73 and 80–1; Henderson v Merrett Syndicates [1995] 2 AC 145, 184. In White v Jones [1995] 2 AC 207, Lord Goff, whilst recognizing the challenges posed by comparative law, opined that ‘in the present case, thanks to material published in our language by distinguished comparatists, German as well as English, we have direct access to publications which should sufficiently dispel our ignorance of German law and so by comparison illuminate our understanding of our own’ at 263. See also A v National Blood Authority [2001] 3 All ER 289, a case on product liability, in which Burton J held that ‘[a]part from the evidence and its analysis, and from the separate consideration of the lead cases, I have had the great benefit of detailed submissions in writing, and some ten days of exegesis and argument orally in opening and closing by leading counsel, just on the law, including authorities and academic writings from France, Germany, Spain, Portugal, Sweden, Denmark, Belgium, Italy, Holland, Australia and the United States, as well as the United Kingdom and the European Court’: at para. 17.

(68) [2002] UKHL 22, para. 32. Lord Rodgers also observed that ‘[t]he Commonwealth cases were supplemented, at your Lordships’ suggestion, by a certain amount of material describing the position in European legal systems…. The material provides a check, from outside the common law world, that the problem identified in these appeals is genuine and is one that requires to be remedied’: para 165.

(69) See the further discussion of this case in Chap. 4, sect. 3.2.1.2. See also M. Andenas and D. Fairgrieve, ‘Misfeasance in Public Office, Governmental Liability and European Influences’ (2002) 51 ICLQ 757 .

(70) The court subsequently adopted the solution which CG Seban proposed in his conclusions.

(71) Including an analysis of the most recent HL decision in Three Rivers DC v Bank of England [2001] UKHL 16.

(72) See further Chap. 4, sect. 2.2.1.

(73) CE 14 Feb. 1997, Epoux Quarez, RFDA 1997.375, 379–80.

(74) Cass Ass Plen 17 Nov. 2000, Perruche, Gazette du Palais, 24–25 Jan. 2001; D 2001 Jurisprudence 316.

(75) See Chap. 3, sect. 3.3.1.

(76) P. Craig, ‘The Domestic Liability of Public Authorities in Damages: Lessons from the European Community?’ in J. Beatson and T. Tridimas (eds.), New Directions in European Public Law (Oxford, 1998) . See Chap. 4, sect. 2.2.3. See generally W. van Gerven, J. Lever, and P. Larouche, Tort Law (Oxford, 2000) chap. 9 .

(77) [1996] AC 923.

(78) Ibid., 949.

(79) ‘Human Rights and the House of Lords’ (1999) 62 MLR 159, 163.

(80) R v Secretary of State for Transport, ex p Factortame Ltd (No 5) [2000] 1 AC 524.

(81) Ibid., 548.

(82) See Chap. 7.

(83) See, e.g., Allenet de Ribemont v France (1995) 20 EHRR 557 (compensation inter alia for loss of business opportunities); Pine Valley Developments Ltd v Ireland (1993) 16 EHRR 379 (loss of value in land).

(84) J. Bell, S. Boyron, and S. Whittaker, Principles of French Law (Oxford, 1998) 393 .

(85) S 8(4) HRA.

(86) See, e.g., N. McBride and R. Bagshaw, Tort Law (London, 2001) chap. 1 .

(87) See T. Hickman, ‘Tort Law, Public Authorities and the Human Rights Act 1998’ in D. Fairgrieve, M. Andenas, and J. Bell, Tort Liability of Public Authorities in Comparative Perspective (London, 2002) .

(88) For comparisons between the ECtHR's approach to just satisfaction and that of the LGO see Sir Robert Carnwath, ‘Welfare Services—Liabilities in Tort after the Human Rights Act’ [2001] PL 210; D. Fairgrieve, ‘The Human Rights Act 1998, Damages and Tort Law’ [2001] PL 695, 708.

(89) Guidance on Good Practice 2: Good Administrative Practice (Commission for Local Administration, London, 1995).

(90) See p. 246 above.

(91) The French law faute de service has parallels with the notion of maladministration used by the Local Government Ombudsman. See N. Lewis, M. Seneviratne, and S. Cracknell, Complaints Procedures in Local Government (Sheffield, 1987) para. 2.11.3 .

(92) The Local Government Ombudsman states in its informative guidance on remedies that it will recommend compensation for lost opportunities, for instance where a complainant has been deprived of a right of appeal because the council did not inform him or her of that right: Commission for Local Administration in England, Guidance on Good Practice 6: Remedies (London, 1997), para. 28 .

(93) See the general discussion in H. Woolf, J. Jowell, and A. Le Sueur, de Smith, Woolfand Jowell's Principles of Judicial Review (5th edn, London, 1998) paras. 16–047–16–053 ; Craig, 901; H. Woolf, Protection of the Public—A New Challenge (London, 1990) 56 ff .

(94) See Chap. 3, sects. 3.2 and 4.

(95) See generally M. Amos, ‘Extending the Liability of the State in Damages’ [2001] LS 1; P. Cane, An Introduction to Administrative Law (3rd edn, Oxford, 1996) 73–6 ; P. Craig, ‘Compensation in Public Law’ (1980) 96 LQR 413 ; JUSTICE-All Souls College Oxford, Administrative Justice: Some Necessary Reforms: Report of the Committee of the JUSTICE-All Souls Review of Administrative Law in the United Kingdom (Oxford, 1988) .

(96) Lord Wilberforce has indicated that ‘more developed legal systems’ have adopted the illegality-fault equation (Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295, 358–9). Schiemann J (as he then was) has indicated that ‘[o]ur law in relation to claims for damages for administrative wrongdoings is notoriously unsatisfactory from the claimant's point of view’: R. v Knowsley MBC, ex p Maguire, The Times, 26 June 1992. Sir Robert Carnwath, writing extra-judicially, has argued that ‘where serious harm has been caused to individuals by illegal action by public authorities…justice demands a suitable remedy for breach’: ‘The Thornton Heresy Exposed: Financial Remedies for Breach of Public Duties’ [1998] PL 407, 422. See also his comments in favour of a broad review: R. Carnwath, ‘Welfare Services—Liabilities in Tort after the Human Rights Act’ [2001] PL 210, 219.

(97) The classic example of this is R. v Knowsley MBC, ex p Maguire, The Times, 26 June 1992 (taxi drivers who had successfully sought judicial review of Council's refusal to grant licences had no remedy in damages).

(98) See M. Amos, ‘Extending the Liability of the State in Damages’ [2001] LS 1, 10 ff.

(99) As it is under the HRA: see Chap. 3, sect. 3.3.2, n. 186.

(100) For discussion of the conditions for this remedy see Chap. 3, sect. 3.3.2.

(101) See further Chap. 8.

(102) See Chap. 8, sect. 3.1.

(103) Reeman v Department of Transport [1997] 2 Lloyd's Rep. 648.

(104) Case N° C557/98, First Report of the PCA, 1999–2000 (1999–2000, HC 20).

(105) The PCA recorded that the Department accepted that the complaint was justified and undertook to consider a quantified compensation claim.

(106) See Chap. 8, sect. 3.1.

(107) Although the applicant will not be required to resort to some other procedure if that other procedure is less convenient or otherwise less appropriate: see generally H. Woolf, J. Jowell, and A. Le Sueur, de Smith, Woolf and Jowell's Principles of Judicial Review (5th edn, London, 1998) para. 14–007 .

(108) [2001] EWCA Civ 1935.

(109) See discussion by A. Le Sueur, ‘How to Resolve Disputes with Public Authorities’ [2002] PL 203.

(110) [2001] EWCA Civ 1935, para 1.

(111) Ibid.

(112) [2001] EWCA Civ 1935, paras. 2–3.

(113) [2001] EWCA Civ 1935, para. 1.

(114) See further Chap. 8, sect. 5.

(115) See pp. 255 and 257–8 above.

(116) Handling Clinical Negligence Claims in England (London, HC 403, Session 2000–2001). In 1999–2000 the NHS in England paid out nearly £400 million in clinical negligence costs.

(117) For further information, see the following website: www.doh.gov.uk/clinicalnegli-gencereform.

(118) Learning from Bristol: the report of the public inquiry into children's heart surgery at the Bristol Royal Infirmary 1984 –1995 (Command Paper, CM 5207)

(119) See Chap. 4, sect. 4.2.

(120) Indeed, some of these policy concerns have (ostensibly) been cast aside in favour of an increased protection of the victims of administrative wrongdoing: see the discussion in Chap. 7, sect. 8 and Chap. 4, sect. 3.2.3.

(121) Hall v Simons [2002] 1 AC 615, 680.

(122) For a detailed evaluation of these policy concerns and the influence of comparative law see Chap. 4, sect. 4.2.

(123) See Chap. 4, sect. 2.1.2.6.

(124) [2001] 2 AC 619, 667. See also the comments of Lord Slynn at 655.

(125) B. Markesinis, ‘Plaintiff's Tort Law or Defendant's Tort Law? Is the House of Lords Moving Towards a Synthesis?’ (2001) 9 Torts LJ 168, 172–3 .

(126) See Chap. 4, sects. 2.1.2.5–2.1.2.7.

(127) See Chap. 4, sect. 2.1.2.7.

(128) Ibid.

(129) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

(130) The comments of their Lordships in the House of Lords in Phelps should be borne in mind. Lord Slynn stated that negligence should not be found too readily: [2001] 2 AC 619, d655 and Lord Clyde argued that the Bolam test is ‘deliberately and properly a high standard’: at 672.

(131) See Chap. 4, sect. 4.1.

(132) See Barrett v Enfield LBC [2001] 2 AC 550, 591; Phelps v Hillingdon LBC [2001] 2 AC 619, 655 and 672.

(133) See S v Gloucestershire CC [2001] Fam 313, discussed at p. 86 above.

(134) Particularly in terms of the measurement of damages for personal injury and dependency loss: see Chap. 7, sects. 5.2 and 6.2.3. Note also that the relative parsimony of administrative law courts as compared with the ordinary courts (see Chap. 7, n. 21) is still apparent today—albeit to a lesser extent—as confirmed in interviews with a number of leading practitioners.

(135) Lord Woolf, ‘The Human Rights Act 1998 and Remedies’ in M. Andenas and D. Fairgrieve (eds.), Judicial Review in International Perspective: Volume II (Deventer, 2000) 434 .

(136) Home Office, Human Rights Task Force Core Guidance For Public Authorities (London) para. 89. Examples may indeed be found of cases in which the awards of the ECtHR do seem low (Johnson v UK (1999) 27 EHRR 296: £10,000 was awarded to an applicant who had spent an excessive amount of time in a maximum security psychiatric hospital after it was conclusively shown that he was no longer suffering from mental illness (3/4 years)) but there are also other cases in which the Court has been more generous (see, e.g., Z v UK [2001] 2 FLR 612).

(137) The courts may be acting in breach of Art. 14 of the ECHR prohibiting discrimination if they systematically undervalue awards given under the HRA in comparison with comparable tort claims. Art. 14 prohibits the different treatment of those in a comparable position in the enjoyment of one of the rights guaranteed under the Convention. In this situation, the substantive provision breached would be Art. 13 (effective remedy before national authority). However, it might be argued that such discrimination would not be unlawful under the HRA as Art. 13 has not been included in the Act.

(138) which, given the residual nature of the action under the HRA (see Marcic v Thames Water Utilities Ltd [2002] 2 WLR 932, 996–7), are likely to be those which arise.

(139) [2001] 2 AC 619.

(140) See especially Chap. 4, sect. 2.1.2.3.

(141) See pp. 215–16 above.

(142) Judicial Studies Board, Guidelines for the Assessment of General Damages in Personal Injury Cases (5th edn., London, 2000) 11 .

(143) See the comments of Otton LJ in the CA: Phelps v Hillingdon LBC [1999] 1 WLR 500, 527.

(144) Drawing inspiration from American law: R. E. Rains, ‘Primer on Special Education Law in the US’ (1998) 10 Education and the Law 205, 222 .

(145) See Barrett v Enfield LBC [2001] 2 AC 550, 574 and 590.

(146) As was pointed out by Lord Nicholls in Phelps, there are a myriad of factors which determine a child's educational progress, many of which the school has no control over, for instance emotional stress and the home environment: [2001] 2 AC 619, at 667. See also Robinson v St Helens MBC [2002] EWCA Civ 1099, para. 31.

(147) See M. Harris, ‘Education and Local Authorities’ (2001) 117 LQR 25, at 28 ; B. Markesinis, ‘Plaintiff's Tort Law or Defendant's Tort Law? Is the House of Lords Moving Towards a Synthesis?’ (2001) 9 Torts LJ 168, 174 .

(148) In medical malpractice cases, proving that negligence caused the victim's hurt is often a formidable obstacle for claimants to surmount: B. Markesinis and S. Deakin, Tort Law (4th edn, Oxford, 1999) 289 .

(149) Larner v Solihull MBC [2001] RTR 32.

(150) Namely, Stovin v Wise [1996] AC 923.

(151) The test of causation has been developed by the ECtHR to become an important control mechanism, and many claims are rejected for want of causation, particularly in respect of pecuniary loss, for a recent example see Asan Rushiti v Austria, Appl. no 28389/95, judgment of 21 Mar. 2000. See the discussion in D. Fairgrieve, ‘The Human Rights Act 1998, Damages and Tort Law’ [2001] PL 695, 710.

(152) Law Commission and Scottish Law Commission, Damages under the Human Rights Act 1998 (Law Com No 266, 2000; Scottish Law Com No 180, 2000) para. 3.58.

(153) See the discussion of Three Rivers DC [2000] 2 WLR 1220 (HL's first decision); Three Rivers DC [2001] UKHL 16 (HL's second decision) in Chap. 4, sect. 2.2.1.

(154) CAA Paris 30 Mar. 1999, El Shikh, AJDA. 1999.951.

(155) Despite the court's (now erroneous) decision to shift fromfaute lourde tofaute simple (on this point see now CE 30 Nov. 2001, Kechichian, AJDA 2002.136, and the discussion in Chap. 4, sect. 3.2.1.2). A translation of this latter case may be found in the Appendix.

(156) Which was examined in detail in an earlier chapter: see Chap. 4, sect. 3.2.1.2.

(157) Unlike in English law, an obligation of joint and several liability does not arise for multiple wrongdoers in French administrative law (for further discussion of this point see Chap. 6, sect. 3.1.1).

(158) CAA Paris 25 Jan. 2000, Kechichian, Req 93PA01250.

(159) Which would probably require legislation.

(160) See the discussion in Chap. 7, sect. 3.1.

(161) The application on the part of the Bank of England to have the claim dismissed without resort to trial was rejected in Three Rivers DC v Governor and Company of the Bank of England [2001] UKHL 16.

(162) Perhaps, unsurprisingly: Zweigert and Kotz have famously noted that ‘the legal system of every society faces essentially the same problems, and solves these problems by quite different means though very often with similar results’: An Introduction to Comparative Law (3rd edn, Oxford, 1998) 34.

(163) The large number of cases brought before the French administrative courts has created long delays in resolving disputes (Brown and Bell, 299). See further Chap. 7, n. 130.

(164) See further Chap. 8.

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