(B) The bases of liability for harm caused by ‘public works’

Where public works cause harm, most modern authors distinguish according to whether the harm is ‘permanent’ or ‘accidental’.¹⁰³ The first need not detain us here as (p.125) it concerns cases where a persons immovable property has suffered and is likely to continue to suffer harm from the creation, extension or running of an ouvrage public.¹⁰⁴ The second category of ‘accidental harm’ includes all cases of death, personal injury or damage to property which are caused by either travaux publics or an ouvrage public and these cases sometimes involve liability for products. Their factual variety is considerable and the law involved quite complex, the courts distinguishing in particular according to the ‘status’ of the claimant in relation to the public works, whether a ‘participant’, a ‘user’ or a ‘third party’.

Where a person is harmed in the course of executing travaux publics, that person (a ‘participant’) may recover damages from the person responsible only on the basis of proven fault,¹⁰⁵ even where his or her harm is caused by a dangerous thing.¹⁰⁶ In practice, participants are of two types: workers and non-workers. A worker employed on a travail public by a works contractor¹⁰⁷ is covered by the standard workers’ compensation scheme and is entitled to a fixed-rate compensation from his local Caisse de sécurité sociale.¹⁰⁸ In these circumstances, his employer enjoys a wide immunity, but the Caisse may recoup the compensation which it pays and the worker may recover any uncompensated losses from any ‘third party’ who contributed to his injury, including other works contractors or the public authority for whom the work was undertaken subject to a proof of fault.¹⁰⁹ As to non-workers, the works contractors themselves and sometimes even their suppliers are held to ‘participate’ in public works. For example, in one case, the claimant owned a lorry which was hit while stationary on the hard shoulder of a motorway prior to delivery of materials to be used in surfacing. The Conseil d’Etat held that he was a participant in the motorway travaux publics even though he was not involved in the processing or application of the material which he delivered and as a result he had to prove fault in order to recover.¹¹⁰

While proof of fault is required in these cases, unlike the general law of liability for faute de service, a public body may not reduce its liability for travaux publics by pointing to a causally relevant act of a third party (fait d’un tiers), whether or not this act is unforeseeable or unpreventable.¹¹¹ Thus, for example, if an excavator belonging to one works contractor (a participant) is damaged partly as a result of the fault of another works contractor and partly of the fault of the public authority who commissioned the (p.126) works (in failing to organise the site properly), the excavators owner may sue either the works contractor or the public authority and recover in full, leaving it to that person to his own recourse claim. In practice, therefore, where a public authority which commissions work commits a fault which is even partly to blame, it acts as ‘guarantor’ of any liability engendered by the works contractors.¹¹²

Those who benefit from an ouvrage public by using it (usagers¹¹³) are somewhat better off than participants in travaux publics as they can take advantage of a rebuttable presumption of fault which rests on the contractors who have done the work and on the public body for whom it is done.¹¹⁴ Indeed, a user has only to show a causal relationship between the ouvrage public and his own harm, it being for the defendant then to show that it has done all that can normally be expected of it to ensure the normal maintenance’ of the public work in question or the normal execution of the travaux publics¹¹⁵ and a ‘failure in normal maintenance’ can consist of an ouvrage publics design as well as its poor execution or repair.¹¹⁶ Apart from showing that it was not at fault, a defendant may escape or reduce its liability as the case may be if it can show that the claimant’s harm was caused by his own contributory fault¹¹⁷ or by force majeure (this notion being here restricted to ‘acts of nature’,¹¹⁸ but again may not reduce its liability by pointing to an act of a third party (fait d’un tiers).¹¹⁹ A few illustrations will make this clearer.

Many cases of a ‘failure in normal maintenance’ of an ouvrage public consist of bad workmanship or use of the wrong materials in construction of a building or other structure or a failure to keep it in proper repair. For example, in Goutines, a suspension bridge collapsed in the course of its operational trials owing to the use by its builders of (p.127) supports and suspension rods which were too weak for the job and by their failure to make proper calculations as to the load.¹²⁰ The builders of the bridge were therefore held liable for the consequences of its collapse, but their liability was shared with the public body which commissioned the bridge as it was held not to have exercised proper control over its design and construction.¹²¹ A typical example of an injury caused by the failure to maintain a public building may be seen in a case in which part of the balustrade of the Paris Opera House fell down and injured a person walking underneath: the Conseil d’Etat held the Minister responsible for the upkeep of the building liable for these injuries since he had not shown an absence of fault in allowing the balustrade to decay.¹²² In Gentili,¹²³ a pupil at a state school suffered injuries to his hand when the glass in his classroom door broke on being slammed: the Conseil d’Etat held the local authority responsible for the upkeep of the school liable for this ‘failure in its normal maintenance’ given that the glass in question did not correspond to relevant safety standards and that other accidents of the same type had already occurred, but it reduced the liability by a quarter to take into account the contributory fault of the pupil in the accident. Here, then, liability resulted from the local authority’s failure to install appropriate glass.

However, even more prominent are cases concerning injuries and damage caused by the state of public roads and, again, French administrative courts take a wide view of the responsibilities of both works contractors and the administration itself. We therefore find cases included of injuries caused by the ill-repair of a road, but also those caused by the responsible person’s failure to deal sufficiently quickly with ice or a flood affecting a road, whether by removing the danger or warning the public about it.¹²⁴ Again, the administrative courts have impugned the design as well as the physical maintenance of roads where this has contributed to an accident, as in the case where a road layout and its accompanying signs are confusing.¹²⁵

Finally, where an ‘exceptionally dangerous’ ouvrage public causes harm, liability can be imposed irrespective of any absence of fault on the part of the defendant.¹²⁶ The leading example of this approach is Dalleau,¹²⁷ in which the claimant’s car was crushed by a fall of rocks as he drove along a road on the island of Réunion in the Indian Ocean.¹²⁸ The Conseil d’Etat found that the road suffered from no defect of design or construction, but its susceptibility to rock falls made it ‘exceptionally dangerous’ and this justified holding the State liable without fault for the consequences of a fall. However, (p.128) this exception has had a very limited impact,¹²⁹ and has not been applied to another case of a mountain road, to a toboggan run in a public park or falling trees by the highway.¹³⁰ This suggests that the Conseil d’Etat merely wishes to reserve to itself the possibility of imposing liability without fault where it thinks that the facts demand it, even where they come within a legal category where liability is established on another basis.

Someone who is neither a participant in a travail public nor a user of an ouvrage public is termed a ‘third party’ (un tiers). A person in this category who suffers harm as a result of either travaux publics or an ouvrage public benefits from a liability sans faute imposed on both public bodies and works contractors involved in the public works, the only defences being force majeure or contributory fault of the claimant:¹³¹ and the fact that some other person has also contributed to the claimant’s harm is not a ground for reducing the liability of either the works contractor or public body sued, ‘fait d’un tiers’ not being a defence.¹³² Again, a wide variety of cases comes within this heading, many of which involve harm involving products. A very common type of case may be illustrated by Commune de Saintes, where a town engaged a contractor to construct an underground carpark and the work damaged a neighbouring property: the latter’s owner recovered damages from the town in respect of this damage without the need to show fault in either the contractor or the town.¹³³ The decision in Grau, however, shows that the connection with a travail public may be less direct.¹³⁴ Grau was a works contractor engaged to quarry stone by a public body, using explosives to do so. On one occasion, an explosion caused a high-tension electricity cable to fall onto a telephone cable, which then transmitted a surge of current to the earpiece of a telephonist working for PTT, the French public telephone company. The Conseil d’Etat held Grau liable to the telephonist without proof of fault as she was a ‘third party’ to a travail public (the quarrying), but held PTT liable to indemnify Grau as himself a ‘third party’ to the telephone equipment (a distinct ouvrage public) for which it was responsible and through which the telephonist had suffered her injuries, though it reduced his indemnity on the ground of his own contributory fault. This decision also illustrates that accidents causing harm to third parties may be causally related to an ouvrage public as well as to travaux publics.

Finally, it should be recalled that while travaux publics need to concern immovable property¹³⁵ they need not result in any work of construction. So, for example, in Alban the defendant company had undertaken to spray an insecticide from the air as part of an anti-mosquito programme instituted by /oi.¹³⁶ The claimants, landowners (p.129) whose crops had suffered owing to the nature of the product sprayed, recovered damages as ‘third parties’ to the spraying which was categorised by the loi as a travail public. Again, we see liability for damage caused by a product (the insecticide spray) subsumed under the category of liability for public works.