#14838 - Damages Readings - Comparative Public Law

Damages Liability

OVERVIEW

History

UK —

• Crown immunity — King can do no wrong

  • King under the law since Magna Carta

  • Feudalism — feudal lords can’t be sued in own court = King can’t be sued in central courts

  • Complex procedure of appealing directly to the King by Petition of Right — did at times give remedy, eg for seized property

• 19^th c — Crown immunity in tort confirmed until WWII

  • Mitigated by—

    • piecemeal legislative relief from immunity

    • Crown would stand behind civil servant being sued de facto vicarious liability

    • Ex gratia payments

• Protections as tort liability grew—

  • Public Authorities Protection Act 1893 guarded—

    • Short time limits

    • Rules on costs to discourage litigation

    • Not repealed until 1954

  • Judicial protections — East Suffolk Rivers v Kent (fresh damage test for emergency services)

• Crown Proceedings Act 1947 — formal recognition of Crown as ordinary litigant

  • (surprising that modern liability ushered in by judicial decision in France & legislative change in UK)

  • Imposed vicarious liability for civil servants

  • Still several exclusions —

    • police

    • post office — preserved even though has moved away from State

    • army

      • Immunity of armed forces suspended by statute in 1987

      • But revived by courts for negligence in battle: Mulcahy v Ministry of Defence (1996)

    • Judicial acts

      • Francovich liability arises re actions of courts

• Immunity

  • Justiciability question — now fading in light of Osman and Barrett

  • Still immunity for Act of State (particularly sensitive executive acts)

France —

• le Roi ne peut mal faire under ancien regime

  • But by 18^th c, systematically granted compensation to workers injured through public works

• Post-revolution (1789)

  • Statute provided for damages for losses caused by public works, customs & army, postal service, police in limited circs

  • General rule still immunity of administration

  • Rationale & factors —

    • Rise of popular sovereignty gave legislature broad powers — Sovereignty & liability in damages considered mutually exclusive

    • Strict separation of powers — due to abuses of pre-revolutionary Parlements — courts unable to pass judgment on administration — no administrative jurisdiction until creation of CE in 1799 and was still only consultative body

• 1799 — Coup d’Etat & Napoleon established CE to deal with complaints put forward by public as to treatment by public bodies — very quickly complaint mechanism becomes independent

  • 1804 — Civil code adopted — deals with all of private law — provides context & pressure for administrative liability to develop

    • Code civil based on fault — replicated in administrative liability

  • CE is the only institution except the Cour de Cassation that has survived since 1799 — survived by establishing independent body of rules for public bodies

• Code Civil excluded from application to public bodies in Blanco (1873) (Tribunal des conflits) (B injured by wagon owned by public sector accorded jurisdiction to admin courts to hear damages action — rejected application of civil delict laws — thus established liability in public law)

  • Extended to local authorities in Feutry (1908)

• Immunity —

  • Distinction Actes d’autorité (involving implementation & enforcement of laws = non-justiciable) <> actes de gestion (everything else — can give damages)

  • Immunity abandoned in Tomaso Grecco (police case)

  • Now only actes de gouvernement non-justiciable

    • Acts re other countries, relationship b/w executive & parliament

  • NB — similar to UK policy <> operational justiciability distinction — long since abandoned

EU — Discretionary <> non-discretionary acts

• Pre-Bergaderm —

  • where no discretion, simple illegality sufficed to give liability

  • discretionary acts — must show that “sufficiently serious / flagrant” Schöppenstedt (1971)

    • Quantum of the loss — Bayerische HNL

    • Flagrant nature of breach = verging on arbitrary: Amylum

      • Very difficult to surmount — EU rarely promulgated regulation wholly unrelated to the goals of the policy

• “Discretionary” = mainly acts of legislative nature, but stretched (control mechanism)

  • legislative acts (directives & regulations) made under Common Agricultural Policy

  • But form not conclusive — also where DM otherwise has real discretion:

    • Bergaderm (2000) (directive prohibited use of certain chemicals in cosmetics must prove ‘sufficiently serious breach’)

    • Antillean Rice (1999) (“decision” affecting rice imports from Dutch colony Commission had wide discretion — must show sufficiently serious breach — doesn’t matter that was a decision rather than rule)

    • Schröder (1997) (decisions banning export of pigs from Germany legislative in nature because of general application & discretionary nature — had to prove serious breach)

• If non-discretionary — any illegality suffices — but “illegality” narrowly defined — also stretched control mechanism

  • Requires culpable error: Richez-Parise (1970) (wrong advice to EU employees re pension — D misinterpreted statute — realised it was wrong but delayed in informing them misinterpretation of statute not “illegality” giving damages — but undue delay in informing them was)

• Post-Bergaderm — presence & scope of discretion one factor in determining whether breach “sufficiently serious”

Comparison — Current state liability

UK

• No broad principle of administrative liability — must bring within private law tort

• But tort of negligence has advanced considerably since Donoghue v Stevenson — general rather than particular duties of care in Dorset Yacht v Home Office

• 2-stage test in Anns v Merton LBC — if loss reasonably foreseeable, then duty or care imposed unless negative by other considerations

  • Had adverse effect on public authorities — subsequently abandoned

• Reverted to ‘incremental’ development of duties — but substantially the same criteria framed as positive rather than negative — foreseeability & proximity + whether fair, just & reasonable

France

• General principle that illegality = fault = liability

• Has consequence that ‘fault’ is broadly conceived — includes circumstances that would equate to strict liability in UK

• Supplemented by no-fault liability

• Instead use causation & damage to restrict scope of liability

EU

Art 340(2) TFEU: EU shall make good any damaged caused by its institutions or its servants in the performance of their duties

• “Institutions” interpreted broadly — all bodies established by Treaty intended to contribute to Union objectives

Illegality <> fault

• France — generally illegality-fault parity

  • Favourable to applicant & places strict liability on authority

• UK — illegality does not give (and is mostly irrelevant to) liability

  • Concern about inhibition of administrative activity — although similar fears in France rejected over time

  • Separation of powers — Reluctance to inject public law ultra vires into private law action of negligence against public body

France — illegality generally sufficient & not always necessary to give liability

• Generally, illegality necessary precondition to liability

  • Except—

    • No-fault damages liability, incl most significantly egalite devant les charges publiques

    • Action by civil servant —Vicarious liability — negligence of doctor doesn’t mean that is beyond power

    • agissements / faits matériels cannot be reviewed / quashed in this way, but can give rise to liability

      • <> Décisions exécutaires

• Generally, illegality sufficient to give liability

  • Historically not always recognised —

    • eg Vuldy (1940) (planning refusal invalid for error of fact — but damages refused)

    • liability only for more egregious illegalities — violation de la chose jugée; détournement de pouvoir

    • = similar to EU position requiring serious breach

    • justified by fear of defensive actions & financial strain = similar to UK

  • Now — illegality-fault parity established: Lorgues

    • Rules contrary to EU law are invalid so automatic liability: Arizona Tobacco Products

    • EG failure to pass implementing legislation

  • Exception — requirement for faute lourde in certain sectors

UK — illegality necessary (but not for negligence) but not sufficient to give liability

Breach of statutory duty — illegality necessary but not sufficient

• Hinges on statutory construction — whether particular statute confers right to damages

  • Although until 19^th c illegality sufficient to give remedy: Schinotti v Burnsted (1796)

  • Overturned in Atkinson v Newcastle (1877)

• Devining legislative intention

  • Whether alternative means of enforcing statutory duty

  • Rarely give damages for discretionary activities where C would be no worse off if didn’t exist — eg homelessness legislation in O’Rourke v Camden LBC (1998)

  • Other policy considerations invade consideration of legislative intent

  • Very restrictively interpreted — eg no remedy for CPS failure to bring remanded person before court to apply for bail before expiry of time limit: Olotu v Home Office

  • Elastic & clearly open to criticism

• Then still remains to prove breach

  • Objective fault required as well as illegality — exonerated if took ‘reasonably practicable’ steps

Negligence — illegality not sufficient & no longer necessary precondition

• Illegality was regarded as necessary pre-condition —

  • Dorset Yacht v Home Office (1970) per Lord Diplock (yacht damaged by borstal boys borstal officers owed duty of care — failure to supervise = contrary to Home Office directions = ultra vires — damages awarded)

    • Lord Reed: D must have acted outside statutory discretion

• Rejecting Diplock’s ultra vires test, but Wednesbury...