(D) Comparisons with French law

The general basis in English law of carriers’ liability in negligence (whether in tort or contract) makes a striking contrast to the very strict liability developed by French courts in the early twentieth century for carriers to their passengers via obligations de sécurité and still applicable to transport by rail.¹⁵² So, while English carriers are liable for the safety of the products which they use only on proof of negligence, French carriers are liable for any injuries to their passengers during transit, it being no force majeure to show that any defect in the products which they use to accomplish the journey were undiscoverable or arose beyond their control.¹⁵³ Moreover, the French carrier’s obligation de sécuritéis also likely to apply so as to impose liability in situations (p.286) where English law holds contractual carriers liable for the negligence of those who contribute to the accomplishment of the journey (their special vicarious liability), since it is unlikely that the actions of these persons would be held unforeseeable, unpreventable and beyond the sphere of control of the carrier as is required by the defence of force majeure.¹⁵⁴ In short, where a person is injured in a rail crash in France, they are likely to claim damages from SNCF, leaving it to the latter to claim an indemnity against any other person (including the producer or supplier of any product involved); in English law, such a person would have to establish negligence in an identified person, whether the carrier itself or some other person contributing to the process of carriage.

Secondly, the substantive harmony of the English law around negligence contrasts markedly with the French law, which draws distinctions as to the basis of liability between passengers injured in the course of transport itself and otherwise, and between passengers and non-passengers (who may be able to rely on liability for the ‘deeds of things’ or liability in respect of public works’, both of which hold out the possibility of recovery without proof of fault). On the other hand, French law shares with English law a general rejection of any difference as to the basis of liability for injury to passengers depending on whether the transport constitutes a public service’, either in institutional or legal terms: French lawyers generally consider that public transport services are carried on in an ‘industrial and commercial’ manner. Indeed, the main difference as regards liability between public and private transport services is found in the English context, where the practical arrangements of a shared (private) railway transport network gave rise to the imposition of the special vicarious liability.

4. Medical Liability and Medical Products

English courts have consistently held medical practitioners to the same general standard of liability of reasonable care since at least the middle of the eighteenth century, whether their patients paid for their services under a contract or instead were treated for free as a matter of private charity, (as in the famous London hospitals of St Bartholomew’s or St Thomas’s) or public provision (which became increasingly common in the nineteenth century and then general with the founding of the National Health Service (NHS) in 1948). But while English law, unlike traditional French law,¹⁵⁵ does not appear to distinguish between liability in respect of public and private health care, the picture is more complicated.

First, for a period of some 30 years at the beginning of the last century, the courts took a restrictive view of the liability of public (and typically charitable) hospitals as opposed to private clinics, denying that the ordinary law of vicarious liability applied. With the increasing governmental role in the provision of health care in the middle of the century, the courts first applied the ordinary law and then went further, imposing a ‘non-delegable’ duty.¹⁵⁶

(p.287) Secondly, the way in which its ‘ordinary law’ of tort and contract applies to the liabilities of providers of health care differs according to the public or private nature of the provision. For English courts have held that hospital authorities, medical practitioners (whether in hospital or in general practice), and pharmacists when acting under the NHS do not provide care to their patients under contracts, even if they make some payment for it, whereas private health care is provided under contracts with their patients. While generally the same standard of care is imposed as regards the services which are given, these contracts brings with them strict liability in respect of the medical products which they supply.¹⁵⁷ In the result, the legal structure of the provision of health care means that the application of this ordinary law of contract and tort leads to a distinction between public and private liability for products supplied.

Thirdly, while the ordinary law of the tort of negligence applies to the liabilities of manufacturers and suppliers of medical products to those beyond privity of contract, owing to the central role of the NHS, public bodies themselves have sometimes been seen as the manufacturers and not merely the suppliers of medical products. Where they have, their public role has increased rather than diminished the standard of care which they have been held to owe.

Fourthly, while liability insurance is not compulsory in the UK, systems of indemnity exist in respect of most medical acts. The NHS has taken on responsibility for clinical negligence of its employees employed by health authorities, the individual authorities contributing to a central fund in a way which emulates insurance.¹⁵⁸ The general medical or dental practitioners who are not covered by this scheme, including those undertaking private practice, either take out indemnity insurance or (in the case of individuals) belong to one of two mutual societies.¹⁵⁹