(III) Transport accidents

The pattern of liability which I have just described for motor vehicle accidents also applies to accidents to passengers suffered during the course of motor transport (for example, by bus), but other transport accidents follow a different pattern and a key context may be found in accidents on the railways. Here, despite the existence of a strong public element in the operation of French railways, in general liability to passengers and others belongs to private law and the ordinary courts,¹¹⁶ and the latter distinguish between accidents occurring during the course of the journey itself (where liability is based on a contractual obligation de sécurité de résultat) and accidents at the station (where liability may be imposed for the ‘deed of a thing’): in either event, a person injured in this context is much more likely to prefer to claim against SNCF on one or other of these bases rather than under the loi of 1998 alleging that a product used by SNCF was defective. On the other hand, where exceptionally liability is imposed by the administrative courts on the basis of the law of ‘public works’,¹¹⁷ the basis of liability depends on the status of the injured person following its standard pattern;¹¹⁸ and here liability under the loi of 1998 may occasionally be more attractive. Both these positions would remain true even if (as I have suggested) liability could be imposed on SNCF under the loi of 1998 as ‘supplier’ of the products which it uses,¹¹⁹ given that it could escape liability by identifying its own supplier or the real producer of any product used, a possibility not open to it under any of its other grounds of liability, public or private.

(IV) Accidents on premises

Unlike English law, French law does not see accidents on premises as a distinct overall category of liability, but it can still serve as a useful factual category for the purposes of depicting the patterns of liability.¹²⁰

The French private law approach here distinguishes according to whether or not the claimant has come onto the premises under a contract. Where he has done so, the occupier (strictly, the person with whom he has made the contract) will bear an obligation de sécurité, sometimes de résultat and sometimes de moyens; where he has not, then liability may be imposed for the ‘things’ of which the occupier was gardien, whether these are movable products which he uses or the immovable property which he occupies.¹²¹ With (p.545) the exception of cases where liability is held to be governed by an obligation de sécurité de moyens, a person injured is likely to prefer to claim under one or other of these bases of liability rather than against either the producer or ‘supplier’ under the loi of 1998, both as a matter of the basis of liability and the applicable prescription periods.

Where the premises count as an ouvrage public or where work done in relation to them counts as a travail public, liability can arise under the special administrative law of ‘public works’.¹²² Here, the basis of liability depends on the claimant’s status for this purpose: many will be ‘users’ of the ouvrage public and so benefit from a presumption of fault in those responsible for it, but some will be ‘third parties’ and benefit from liability without fault.¹²³ This means that where an allegedly defective product forms part of an ouvrage public or is used by a works contractor in the course of a travail public, a person injured as a result may or may not prefer to claim under the law of ‘public works’ rather than under the loi of 1998. Certainly, where he benefits from the special administrative liability without fault, he is unlikely to wish to prove defect and risk the range of defences available to defendants under this loi; but in other cases (where liability rests on a presumption or proof of fault), liability under the loi of 1998 may be more attractive.