A Comparative Study of the English and German Judicial Approach to the Liability of Public Bodies in Negligence

by Ralph Surma

(2000) Oxford U Comparative L Forum 8 at ouclf.iuscomp.org | How to cite this article

Contents

Abstract

The present thesis focuses on the role of so-called public policy considerations in the area of the liability of public bodies in negligence in England and Germany. In both countries public liability in negligence is a complex area of the law. The courts are faced with a defendant whose conduct caused harm while carrying out public law functions in the interest of society. The question is how far this special role should influence the scope of liability with regard to the need to protect individual rights. The relevant law has been developed in both countries substantially by case law, despite the fact that in Germany it has a statutory foundation. The English courts have in many cases limited or denied the liability of public bodies, relying on various policy arguments. In contrast, the German courts have not adopted the English concerns but have instead extended public liability. On the basis of a survey of the present state of English and German law in this area, it is submitted that although policy considerations are influential in the way the law is applied in the two legal orders, there is a different general attitude towards public liability. The difference in approach in the two legal systems is illustrated by a juxtaposition of English and German cases which show that similar factual problems often lead to different results. The use of the English policy arguments is analysed, assessing them critically on their own and by comparison to the German approach. It is concluded that these considerations are not apt to serve as an adequate ground to exempt public bodies from liability in negligence. An outlook on English law in the light of recent European Human Rights and English case law suggests that the position of the English courts may be about to change.

A. Introduction

On 28 October 1998, the European Court of Human Rights (ECHR) gave judgment in the case of Osman v United Kingdom. At the heart of this dispute lay a decision by the Court of Appeal to strike out an action by Mrs. Osman and her son against the police for damages in negligence.

Mrs. Osman’s husband had been killed and her son seriously injured by a school teacher who had developed a dangerous obsession with the boy. It was alleged that the police – despite being aware of the threat that the teacher posed to the Osmans – had failed to take the necessary steps to prevent the crime. The Court of Appeal held that in such circumstances it would be against public policy to impose liability in negligence on the police for failing to act1 In doing so, the Court of Appeal relied primarily on the judgment of the House of Lords in Hill v Chief Constable of West Yorkshire2 which, on the basis of various public policy considerations, has in fact established an immunity for the police from actions for negligence in respect of their activities in the investigation and suppression of crime3

The Court of Appeal’s decision was brought before the ECHR, alleging several violations of the European Convention on Human Rights (EConvHR)4 by the English court.

The ECHR held that the decision of the Court of Appeal constituted a violation of Article 6 (1) of the EConvHR, which provides that ‘in the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal’. It was decided that such a hearing had not been granted to Mrs. Osman and her son, due to the refusal to let their action proceed to trial. The public policy arguments put forward by the Court of Appeal were rejected as not being sufficient to bar from the outset, irrespective of the circumstances of the individual case and of other competing public interests, a claim for compensation based on the failure of the police to prevent criminal injury5

Although it is not yet entirely clear what effect this decision will have on English law, it follows from the judgment that any blanket immunity for any class of potential tortfeasors is likely to violate Art. 6 (1) of the EConvHR6 The outcome of Osman v UK has not received a warm and unanimous welcome among the judiciary in England7 Lord Hoffmann, for example, has voiced fears that the entire English jurisprudence on the liability of public authorities for failure to deliver public services is at stake8

It might be wondered whether such concerns are rather exaggerated. However, the House of Lords in its first decision on a striking out order based on policy concerns after the ruling of the ECHR overruled the Court of Appeal, allowing the case to proceed to trial9 Moreover, in recent years there have been quite a few English decisions besides Osman v Ferguson and the Hill case which denied liability of public authorities in negligence on policy grounds. Decisions which involved, for instance, building inspection services10 highway authorities11 socia12 and fire services13 along with more police and Crown Prosecution Service cases14 Not all of these judgments explicitly relied in their reasoning on a public policy immunity, and indeed some of them were not based exclusively on policy arguments to hold that the requirements of the tort of negligence were not met. But when policy reasons were raised, the courts often considered them as at least another independent ground upon which to reject imposing a duty of care and liability on public bodies15 Such a development seems to be quite contrary to other countries’ expansion of public and state liability16 The Law Commission voiced concerns about the availability of compensation against public authorities in the UK as early as 199317 Thus, it is not surprising that another English case from this area of the law, the House of Lords’ decision in X (Minors) v Bedfordshire CC18 is pending before the ECHR.

Considering these circumstances and the impact that the Human Rights Act 1998 will have on English case law when it comes into force in the year 2000, it appears to be an interesting and rewarding undertaking to examine more closely the use of policy arguments by English courts in the area of liability of public bodies in negligence. The aim of this thesis is to review critically whether the policy issues relied on by the courts are apt to strike the right balance between the community’s need for efficient administration and individual protection. As the case of Osman v UK implies that English law in this area falls below European Human Rights standards, it seems appropriate to also adopt a comparative approach to the subject. Accordingly, besides English law, the German law regarding public liability in negligence is examined.

There are several reasons why I decided to draw on the German legal system for such a comparison. First of all, coming from a German legal background, it was somehow natural to compare the English law with ‘my own’ legal order. Both England and Germany show a certain degree of similarity in their social, economic and political background which serves as the minimum precondition for any profitable comparative legal study19 Furthermore, analysing this area of the law in the two countries may be useful in a European context with regard to Art. 288 (2) [ex Art. 215 (2)] of the EC Treaty which refers to the general principles common to the laws of the Member States to define some of the conditions for the non-contractual liability of the Community. The same approach has been accepted to determine the Member States’ liability for violations of Community law20 But most importantly, I have found out through my research that German cases with similar factual backgrounds to English cases often lead to opposite results, suggesting that German courts in general are more willing to impose liability on public bodies than their English counterparts. In doing so, they do not openly consider the policy arguments raised by the English courts. Instead, they follow a different approach being led by different concerns. To prove this the thesis includes not only a section about the state of the law in the two countries but also a chapter directly juxtaposing English and German cases. Notwithstanding a divergence in style and methodology, the reasoning by the courts in actual cases will further exemplify where the differences and similarities in the English and German judicial approach to the liability of public authorities in negligence lie. However, the study cannot be exhaustive and a selection of a few suitable cases was made.

The thesis has thus the following structure: The next chapter contains two main sections providing the account of the state of the English law of negligence in respect to public bodies and the introduction into the corresponding German law. Not included in the survey is the liability of the Crown, Crown agents or central government authorities; this is because the cases in question only involve more subordinate forms of public administration, restricting the meaning of the term ‘public bodies’ or ‘public authorities’, when used in this thesis, accordingly. In the third chapter four English cases are presented with their German equivalents. Against this background the fourth chapter offers first a comprehensive critical analysis of the persuasiveness and appropriateness of the policy arguments used by the English Courts to deny liability of public authorities in negligence. In the second part of the chapter these policy concerns are contrasted with the German approach, in order to find an explanation for the different attitude towards public liability in the two countries. The final chapter comprises the conclusion summarising the findings and attempting an outlook on the development of the English law in the future.

B. The Country Reports

I. Some general observations

In every legal system an individual who has suffered loss due to the wrongful act of another will find rules which allow him to obtain compensatory damages if the necessary requirements for such a claim are met. These rules make up what is known as the law of torts in common law countries and as the law of delict in civil law countries. As part of private law, their primary purpose is to settle disputes between private parties21 Private persons, meaning private individuals as well as private legal entities, usually act for their own benefit; that appears to be one of the main reasons why in principle they are held liable for the damage they have caused22

The position of public authorities is different. In contrast to private persons, their main function is to exercise statutory powers and duties in the public interest and to provide services for the welfare of society23 They often have a certain amount of discretion as to how to carry out these activities. Furthermore, their decisions are open to judicial review and can be challenged on the basis of the rules and principles of public law. The special nature of their tasks has consequently affected the scope of their non-contractual liability. It touches a border area of the law of torts and of administrative law. As a result, almost no legal system has completely subjected public bodies to the ordinary private law24 Nevertheless, while trying to fulfil their public functions, public authorities do occasionally cause damage which can be attributed to erroneous or careless behaviour on their side. A person who has suffered loss wants to recover compensation from the tortfeasor, regardless of whether the tortfeasor is a private or a public body and regardless of the purpose of the harmful act. In most cases public officials and authorities are therefore not totally exempt from the rules of private law25 The extent to which they are held liable depends on where and how each legal system has struck the balance between the protection of the interests of the adversely affected individual and the patronage of public authorities for the public benefit.

In this area, as in many branches of the law, policy considerations occur more or less openly irrespective of the particular legal system. There is generally no fixed canon of them and they can probably be best described as open-ended concerns of public interest and welfare, not restricted to an individual case26 They are not legal rules but represent value-judgments which serve to obtain and justify a certain desirable outcome27 Thus, they are most often referred to when the standard principles of law do not point to a clear solution to a legal problem28 as in the case of public liability.

II. The English law of negligence with regard to public authorities

In English law, a successful claim for damages in negligence requires three main elements: a duty of care owed by the defendant to the plaintiff, a breach of that duty, and the occurrence of a foreseeable and recoverable damage which was caused by the breach of the duty29 When these conditions are met, the defendant is liable regardless of being a private individual or a public body. The nature of the latter is not precisely defined in English law30 Reduced to the smallest common denominator, public bodies can be characterised as legal entities performing public and other functions conferred upon them by statute, often adopting the structure of corporations, of which local authorities are an important illustration31

1. The rule of law

The notion of equal treatment of public authorities and private persons regarding their accountability for wrongful acts was considered by A.V. Dicey as one of the main features of the so-called ‘rule of law’32 It is expressive of a strong tradition in English law not to draw a formal distinction between public and private law, not least in order to have better means of control over administrative wrongdoing. The rule of law has established as a general principle that public officials and public bodies are formally subject to the same rules and may be held liable in tort in the same way and extent as private persons33 That is why there is no system of specific public law torts, other than the tort of misfeasance in public office and some special principles of liability meanwhile imposed by statute34 Consequently, the mere fact that an action of a public body or one of its servants was ultra vires, meaning unlawful in the public law sense, is not sufficient to impose liability. To recover damages, the unlawful act must at the same time fulfil the elements of the relevant tort35

In addition, public bodies are subject to the ordinary law of vicarious liability, by which an employer is liable for torts committed by his employee in the course of his employment while the employee remains personally liable as well36 Within the sphere of public authorities, there are thus three possible types of liability in negligence, not always coinciding: first, there is the personal liability of those who act for the public body, secondly the vicarious liability of the public body for the torts committed by those acting on its behalf, and thirdly the direct liability of the public body itself. Since public authorities are only able to act through human agents due to their nature as juristic persons, their direct liability, like their vicarious one, stems from the acts of others37

The most obvious example of an identical liability in tort of public bodies and private persons is when the former enter into relations with the citizen on a private law basis, just as any other private individual, and commit a tortious act. However, many of the functions of and services provided by public bodies are without equivalent in the private sector. This special position is reflected in the way in which the courts have modified the application of the general features of the law of torts to public bodies. In the tort of negligence the concept of the duty of care is used as the most important device to control and limit liability, both in relation to public bodies and private persons. It serves to determine the situations in which the law of negligence should operate and what kind of damage should be compensated38

2. Duty of care

A person will only be held liable in negligence for a careless act if he owes the victim of his conduct a legal duty to take care. The concept of the duty of care is a complex notion that defies a clear definition. It is rather general in nature and has been subject to various formulations. Serious attempts to establish some principled approach to determine when a duty of care should be recognised with regard to public bodies go back about 30 years. Cases involving public bodies have played an important role in the emergence of the law of negligence as it stands today, often raising problems of general significance.

a) The development of the law

The 1970s and early 1980s mark the peak of public liability in English law, widening the scope of the tort of negligence at the same time. The first important case in this respect was Dorset Yacht Co Ltd v Home Office39 The facts alleged in this striking out action were that young prisoners who had escaped from an island in Poole Harbour due to the carelessness of their prison officers damaged the plaintiff’s yacht during the course of their flight. The House of Lords held that, on proof of the facts pleaded, the officers would have owed to the owner of the yacht a duty of care to prevent the damage the offenders had caused40 Lord Reid in his opinion referred to the ‘neighbour principle’ presented by Lord Atkin in the landmark decision of Donoghue v Stevenso41 as authority for the possibility to open up within limits new categories of liability and said for the first time that it ought to apply in all cases where there was no justification for its exclusion42

This approach was extended first by the Court of Appeal in Dutton v Bognor Regis Urban D43 and later by the House of Lords in Anns v Merton LBC44 which imposed liability on a local authority for the failure to exercise properly its statutory powers to inspect building foundations and awarded damages for pure economic loss45 Lord Wilberforce on this occasion introduced a two-stage-test to conclude whether a duty of care existed. In his view, a prima facie duty of care arose in case of a sufficient relationship of ‘proximity or neighbourhood46 between the plaintiff and the defendant. At the second stage it had to be considered whether there were any reasons of policy against imposing a duty of care irrespective of the kind of loss suffered47

Anns v Merton LBC had the effect of greatly expanding liability in tort48 In the following years, however, the impression grew that a general principle of liability for all foreseeable damage subject to particular policy exceptions was very difficult to control49 A number of House of Lords and Privy Council decision50 cast doubt on the Anns formula. The leading force behind the criticism in all these cases was Lord Keith of Kinkel. Yet, it was not until the decison in Murphy v Brentwood DC51 a similar building inspection case 13 years after Anns v Merton LBC, that the two-stage-test to establish a duty of care was finally abandoned and Anns v Merton overruled in so far as it concerned the recovery of pure economic loss.

Apart from the reluctance to award pure economic loss, one of the main reasons to depart from the Anns case was that it was thought to be preferable to develop novel categories of negligence incrementally and by analogy with established categories, rather than by applying a generalised approach and extending a prima facie duty of care which could only be limited by indefinable policy considerations52 The retreat from Anns has reversed the trend of expanding liability, which is very much apparent in cases involving public bodies53

b) The present law

The two-level approach in Anns v Merton LBC has been replaced by the development of a three stage test to examine the issue of the duty of care54 The formula was clearly laid down in Caparo Industries plc v Dickman55 It must be reasonably foreseeable that the conduct of the defendant will cause damage to the plaintiff. There must be sufficient proximity between the parties, and it must be fair, just and reasonable to impose a duty of care. This test is not limited to cases of pure economic loss, as the House of Lords affirmed in Marc Rich & Co v. Bishop Rock Marine Co Ltd56

‘Proximity’ encompasses more than the literal meaning of physical or geographical proximity, but the exact content remains unclear57 Terms like ‘close and direct relationship58 and ‘equivalent to contract59 appear in this context. It differs from one situation to another60 In cases of physical injury or property damage foreseeability alone is often sufficient to also satisfy the element of proximity61 while omissions, economic loss or nervous shock cases require a closer degree of relationship if liability is to be imposed.

With regard to the fair, just and reasonable-test, these expressions are not looked at separately. They describe a wide-ranging array of factors which are not based upon technical legal doctrine and are nothing else than ‘shorthand expressions for policy’62 It is under this heading, which is the equivalent of the second stage in the Anns formula, that the courts raise their policy arguments. These can involve inter alia social, political and economic factors and should consider all relevant circumstances including the relationship between the parties, the proportionality of the burden of liability in relation to the nature of the tortious conduct, and the framework of the legal system63 Nowadays, they are mainly used to deny liability in cases in which another defendant or the plaintiff himself is regarded as a more appropriate bearer of the relevant loss64

Although the three stage test is adopted in many cases, there is no universal approach to the question of when a duty of care is owed65 It is difficult to always distinguish the categories and keep them separate as they all incorporate arguments of the same nature and are consequently partly overlapping66 As Lord Bridge put it in Caparo Industries v Dickman67 ‘the criteria are little more than convenient labels to attach to the features of different specific situations which the law recognises as giving rise to a duty of care of a given scope.’ It thus seems to be of minor practical importance how the approach to the concept of duty of care is precisely formulated. Which decision will be taken with regard to the duty of care is in the end often a question of policy68 This becomes even more apparent when the defendants are public authorities. In considering whether they owe a duty of care there are various additional factors which the courts take into account.

c) Duty Factors relevant to public authorities
(1) Statutory duties and powers

Public bodies carry out duties and powers conferred upon them by statute. In the case of statutory duties the specific tort of breach of statutory duty may be applicable69 This depends on the construction and the purpose of the statute. If the duty was imposed for the protection of a limited class of people and Parliament intended to confer on these people a right of action for breach of the duty, an action for damages in tort will lie70 An important indication against such a legislative intent is the availability of other remedies provided by the statute71

When there is no action for breach of statutory duty, the law of negligence applies in the same way to the performance of a duty as to the exercise of a power72 It is settled since Merseyside Docks and Harbour Board Trustees v Gibb73 that a public body can in principle owe a duty of care in the performance of statutory functions74 However, if on the construction of the statute no civil action arises, the mere careless exercise of a statutory power or duty is not sufficient to impose a common law duty of care. It can only be found under the ordinary principles of the law of negligence75

A difficulty arises out of the fact that the exercise of a statutory power usually contains a certain amount of discretion. Discretion is also found to a lesser degree in statutory duties. It is conferred upon public bodies in areas where special skill or knowledge are required to let them decide what is best76 That is why the courts often do not want to substitute their judgement to that of the authorities, and regard certain decisions of the authorities as unsuitable for judicial resolution, especially when the allocation of scarce resources or the distribution of risks is concerned77 This issue of non-justiciability and discretion has led the House of Lords to embark on several slightly different approaches, almost on a case to case basis, in order to determine the imposition of a duty of care on public bodies when discretionary functions are involved.

In Anns v Merton LBC Lord Wilberforce, making use of the so-called policy-operational distinction, found it easier to impose a duty of care on a public body on the operational than on the policy level, provided the ordinary negligence conditions were met78 A policy decision is a decision as to how a statutory power should be exercised, whereas the term operational refers to the implementation of the decision taken. This division is not very precise and, although not formally overruled, has lately been criticised in Stovin v Wis79 and Barrett v Enfield LBC80

Lord Browne-Wilkinson established a(nother) three stage test for decisions involving discretion in X (Minors) v Bedfordshire81 The first step is to exclude all matters which are non-justiciable, irrespective of whether they were performed carelessly. The second stage is to consider whether the conduct complained of lies within the ambit of the authority’s discretion. Only if the decision complained of is so unreasonable that it falls outside the ambit of that discretion, a third step will decide whether it is appropriate to impose on the authority a duty of care82 It is at this third stage that the elements of the Caparo test for the ordinary law of negligence and in particular the concept of what is just, fair and reasonable reappear.

For Lord Hoffmann in Stovin v Wis83 at least two conditions had to be satisfied, if a duty of care should arise at all for the failure to exercise statutory powers. First, similarly to Lord Browne-Wilkinson, he required that it would have been irrational for the public body not to exercise the power84 In addition, there must be exceptional grounds on the basis of the policy of the statute which make compensation necessary in such a case85 These exceptional grounds represent exactly the policy issues that are discussed under the just, fair and reasonable test.

In Barrett v Enfield LBC86 Lord Slynn of Hadley and Lord Hutton took the view that, once a decision or conduct was held to be justiciable, only the ordinary common law concept of foreseeability, proximity and fair, just and reasonableness should be applied to decide the question of a duty of care, even if the exercise of discretion was involved87 They thus reaffirmed that conduct based on the lawful exercise of discretion, in other words implementing a discretionary decision, could also be subject to a duty of care88

To conclude, despite their variations the illustrated approaches of the House of Lords all incorporate the consideration of policy arguments to determine the existence of a duty of care. This underlines the importance of such considerations for the liability of public authorities in negligence.

(2) Liability for omissions and acts of third parties

Many cases against public bodies involve claims for the failure to confer protection or a benefit. In English law, there is in principle no liability for mere omissions to act89 because a person owes no duty to assist another90 There is a substantial difference between actively causing a wrong and not preventing it from happening91 This approach is also extended to public bodies92 Generally they are under no common law duty to exercise statutory powers. Apart from statutory duties, common law duties to act affirmatively for the assistance of others will therefore only exist under exceptional circumstances93 Such situations include relationships where the defendant is responsible for a state of danger or for the protection of the plaintiff who is unable to safeguard himself94 Remarkably, emergency services and people in need of their help are normally not among them. Emergency services have no duty to respond to a call for help95 Their only common law duty in this context is the duty to take reasonable care to avoid causing additional damage, once they have decided to react96

Coinciding with the sphere of omissions are cases in which injuries were not primarily caused by public authorities but by a third person. Because of the unpredictability of human conduct and the problems linked to omissions, there is, vicarious liability apart, usually no liability for the acts of third parties97 There are exceptions in rare situations of a special relationship between the defendant and the third party, or the plaintiff, which are similar to the ones already mentioned. They are based on an assumption of responsibility by the defendant for the third party, or on a high degree of control as in the Dorset Yacht case98 An exceptional situation also exists, where a defendant is responsible for a state of danger which may be exploited by a third party or for property which may be used by others to cause damage, although such cases rarely succeed99

(3) Statutory framework and statutory purpose

The framework of the statutory power is a significant aspect in determining whether a duty of care should be imposed or not100 If there are no indications within the statute of an intention to provide compensation, it will be difficult to establish a duty of care in negligence101 the law of negligence only being a last resort102 Nevertheless, the mere existence of a statutory remedy does not by itself necessarily rule out the recognition of a duty of care103

Similarly, when the conduct of the authority was intended by statute mainly for the general public benefit, the imposition of a duty of care will be rare104 Some decisions have to be taken in the public interest, even though it is foreseeable that they may cause harm to others105 As long as they are authorised by Parliament, there is no room for public liability. A duty of care can only arise when the statutory power was conferred to look after the affected interests of the plaintiff106

(4) The kind of the loss suffered

In general, the courts are more willing to allow recovery of compensation for personal injury, property damage and when other important personal interests are infringed. Economic interests are less well protected107 There are only very few cases where pure economic loss will be awarded if it is not consequential upon personal injury or property damage108

(5) Immunities

General and complete immunities from liability are hardly ever found in the law and the only exceptions are based on strong public interest considerations. Judges, for example, enjoy a public policy immunity from liability in negligence for their conduct in court to ensure their judicial independence109 Otherwise the courts usually emphasise that for public bodies and their servants no blanket immunity exists110 Yet, there are areas of activity beyond judicial control. These include the aforementioned activities involving the exercise of discretion and mainly concern so-called policy matters in contrast to operational decisions. But it seems that even below the policy level, the courts have barred claims for damages against public authorities in certain domains on the basis of public policy arguments111 This might not always have been referred to as a partial immunity but it amounts to it and has been criticised by the ECHR in the Osman v UK case112

3. Other elements of the tort of negligence

There are no special rules for public bodies with regard to the other elements of the tort of negligence. The requirement of the breach of duty determines whether the defendant in fact was negligent. He was negligent when he fell below the required standard of care, this being the sole degree of negligence in all types of cases. The standard of care is objective in nature. For professionals, such as employees of public authorities, it is determined according to the Bolam test113 They breached their duty of care when their conduct was such that no competent body of professional opinion would accept it as being within the means of an ordinary skilled member of that profession114

Turning to causation, the ordinary ‘but for’ test applies which means that the plaintiff would not have suffered the harm but for the public body´s negligence. It is mainly an issue of fact which depends on the result of taking evidence115 The element of remoteness of damage requires that the suffered loss constituted a foreseeable consequence of the authority´s negligenc116 and thus leads to the reconsideration of one of the features of the duty of care concept117 Finally, the assessment of the damage and compensation follows the established principles.

III. The German Law

In German law there is no direct or exact equivalent to the English concept of negligence as a separate tort. Being a civil law system, German law is not familiar with the notion of nominate torts. Instead, the law of torts is in principle embodied in the German Civil Code (BGB) and consists primarily of 30 successive articles, called paragraphs, which are found in the second book of the code as part of the law of obligations.

1. § 823 BGB

The first and most important of these tort provisions is § 823 BGB which lays down two general rules:

‘(1) A person who wilfully or negligently injures the life, body, health, freedom, property, or other right of another contrary to law is bound to compensate him for any damage arising therefrom.

(2) The same obligation attaches to a person who infringes a statutory provision intended for the protection of others. If according to the purview of the statute infringement is possible without fault, the duty to make compensation arises only if some fault can be imputed to the wrongdoer.118

In § 823 I BGB, negligence is referred to as a mode of committing a tortious act, as a form of fault. This represents the traditional and basic understanding of negligence in German law, which is defined in the second sentence of § 276 I BGB as not exercising the care required in ordinary social intercourse. When § 823 I BGB declares that careless conduct may render somebody liable in tort, it refers to acts as well as to omissions. Omissions, however, will only lead to liability if there was a legal duty to act119 Apart from statutory duties or the voluntary assumption of responsibility, a legal duty to act is most commonly derived from the so called Verkehrssicherungspflichten, which can only inadequately be translated as legal duties to maintain safety. These duties were developed by the courts on the basis that everybody who creates or controls a potential source of danger has to take the necessary precautions to protect others against the risks caused by his activity or his property120 Their impact goes beyond the sphere of omissions as the Verkehrssicherungspflichten determine which circumstances and relationships will give rise to a duty of care to safeguard the enumerated interests in § 823 I BGB and thus limit the scope of liability121 In German tort law, they seem to be the closest equivalent to the English concept of a duty of car122 and are often expressive of judicial policy123

§ 823 II BGB gives rise to liability for breach of a protective statute or enactment. A statute is intended for the protection of others if it exists to defend not only general but also or solely individual interests124 In this sense the provision appears to be comparable to the English tort of breach of statutory duty, both requiring a protective nature towards a limited class of people. German law, however, does not also require a legislative intention in the context of the protective statute to create a civil remedy.

2. The German law of state liability

Although § 823 I and II BGB are the main German tort provisions and their wording does not include any limitation, they do not in general apply in the same way to private persons on the one hand, and public authorities and their employees performing public functions on the other125 Regarding public liability, there is a special claim for breach of official duty which is established in § 839 BGB in conjunction with Article 34 of the German Constitution (GG). This does not necessarily mean, however, that public bodies are not held liable in the same way, or to the same extent, as private persons. In fact, there is a provision in the German Constitution which could be described as the German rule of law. According to Art. 20 III GG the executive and the judiciary are bound by law and justice. Correspondingly, any state activity can in theory be challenged in court; this is confirmed by Art. 19 IV 1 GG which provides the right of the individual to have recourse to law where his rights are violated by public authority. In this context it is worth noting that the distinction between public and private law is a strong characteristic of German law126 Therefore, the remedy of judicial review or actions of annulment of administrative decisions have to be brought before the administrative courts, whereas only the civil courts have jurisdiction for claims for damages in tort actions against public officials and bodies127

In Germany, public liability in tort is regarded as part of the wider-ranging law of state liability. The term state liability is not precise because not only the Federation (Bund) and the states (Länder) but also the other territorial units and entities of public law, such as local authorities, are all subject to liability under the same principles. The rules of state liability law do not represent a coherent legal system united in one code. They are scattered in different statutes or have been developed by the courts. Besides public liability in § 839 BGB and Art. 34 GG, they deal with compensation for other forms of public law measures128 which are of no interest for present purposes. Any special provisions in the states which used to make up the former German Democratic Republic are also not taken into consideration as § 839 BGB, in conjunction with Art. 34 GG, is applicable there as well129

3. The liability of public bodies for breach of official duty

§ 839 BGB and Art. 34 GG come from different areas of the law and came into force at different times. § 839 BGB, as part of the law of torts in the German Civil Code, came into force with the rest of the Code on January 1st 1900, while Art. 34 GG is part of the German Constitution, which was promulgated on May 23rd 1949. These provisions jointly constitute the foundation of the claim for damages against public bodies. They are interrelated and influence each other130 Although they are laid down in statutes, their elements have been interpreted, refined and adapted by the courts131 As a result the present German law concerning public liability has basically been developed through case law. Even though technically speaking judgments do not constitute a recognised source of law in civil law countries like Germany132 the actual influence of the courts on the law should not be underestimated. The following account mainly presents the current position of the Federal Supreme Court.

a) § 839 BGB

§ 839 BGB reads as follows:

(1) ‘If an official wilfully or negligently commits a breach of official duty incumbent upon him towards a third party, he shall compensate the third party for any damage arising therefrom. If only negligence is imputable to the official, he may be held liable only if the injured party is unable to obtain compensation otherwise.

(2) If an official commits a breach of his official duty in giving judgment in an action, he is not responsible for any damage arising therefrom, unless the breach of duty is subject to a public penalty to be enforced by criminal proceedings. This provision does not apply to a breach of duty consisting of refusal or delay in the exercise of the office.

(3) The duty to make compensation does not arise if the injured party has wilfully or negligently omitted to avert the injury by making use of a legal remedy.133

The first section of this provision, if looked upon alone, imposes liability for breach of official duty only on the official acting on behalf of the public body and not on the public body itself. According to its wording, it holds the official personally liable for all the damage he caused by violating the duty he owed to the citizen. In this way § 839 I 1 BGB extends the ordinary tort liability established in § 823 I BGB, as, once the conditions of § 839 I BGB are fulfilled, the official has to compensate for any damage, in principle including pure economic loss, and not only for the infringement of certain enumerated interests134 thus the provision goes beyond the position of English law on the recovery of pure economic loss.

b) Art. 34 GG

When the official has breached his duties in the exercise of a public law or sovereign act, however, Art. 34 GG shifts his personal liability arising from § 839 I 1 BGB onto the public authority in charge and makes it liable for the conduct of the official. Art. 34 GG provides that:

‘If any person, in the exercise of a public office entrusted to him, violates his official obligations to a third party, liability shall rest in principle on the State or the public body which employs him. In the event of wilful or grossly negligent conduct, the right of recourse shall be reserved. In respect of claims for compensation or the right of recourse, the jurisdiction of the ordinary courts must not be excluded.135

Because of Art. 34 GG, liability of the public body itself is the standard form of public liability. It leads to the assumption of an obligation on the part of the authority which leaves the official exempt from any liability to the third party136 It brings about a transfer of responsibility. This means that the public body is only liable if according to § 839 BGB the conditions for a personal liability of the official are met137 The public body will then be liable in exactly the same way and to the same extent as the official under § 839 BGB138 It is a form of indirect state liabilit139 and thus differs from the direct and the vicarious liability of public authorities in England.

The personal liability of officials and public employees towards a third party continues in situations where they pursue ordinary private law activities. If they enter relations with a citizen on a private law basis on behalf of a public body and breach official duties owed towards the private party, Art. 34 GG will not apply. Officials will be held liable under § 839 I 1 BGB. As a specific rule, it usually overrides the other more general tort clauses of the BGB140 It restricts the meaning of the term ‘official’, however, to civil servants as defined in public law (Beamte). Other government or administration employees are therefore liable according to the regular tort provisions.

The public authority is in these cases only held vicariously liable for its civil servants and employees141 This approach to fiscal liability corresponds with English law. The applicable provisions in the Civil Code are § 823 BGB and the provisions following it, in conjunction with § 831 BGB for acts of employees, or, for torts of organs, §§ 31, 89 BGB, which in fact represent a type of direct liability of the State. An official is able to avoid his personal liability on the basis of § 839 I 2 BGB if he can invoke the vicarious liability of the public authority as an alternative source of compensation for the plaintiff142

c) The elements of a claim under § 839 BGB, Art. 34 GG

As enactments overriding § 839 BGB and Art. 34 GG are exceptional and only found in a few specific statutes143 the two provisions will usually apply. A claim for damages under § 839 I BGB and Art. 34 GG requires that an official in the exercise of a public office culpably breached an official duty he owed to a third party which suffered harm as a consequence of his conduct.

(1) The official

The wording of § 839 BGB limits liability to the acts of officials as defined in administrative law. In Art. 34 GG this wording is extended to any person who is performing functions which are part of the sovereign activities of the public body144 not only including its employees but, under certain circumstances, also private enterprises or private individuals145 It is the nature of the activity which is decisive for the liability of the public body and not the legal position or status of the acting person.

(2) Act in exercise of a public office

This element is satisfied whenever an act is based on a statute which expressly designates a certain duty as an official duty in the exercise of a public office146 Apart from these cases, the exercise of a public office generally encompasses any kind of sovereign conduct147 An activity can be referred to as sovereign when public duties or functions are pursued with public law means148

In areas in which public bodies are able to choose between private law or sovereign means to perform their public functions149 or when physical acts (Realakte) are concerned, it can be more difficult to decide whether an act was conducted in the exercise of a public office150 The courts therefore rely on different criteria. If the form the act takes (Rechtsform), for instance, is clearly a form used and established in the area of public law, the exercise of a public office is presumed151 The same is true when the official acts with the intention to execute public duties and the nature of the task in question is indeed a public law one152 This last principle is especially relevant to classify physical acts of officials where the distinction between forms or means of private and public law is of no assistance. There has to be a special interrelation between the public duty pursued and the tortious conduct153 The connection must be so close that the physical act can be regarded as part of the sovereign activity of the public body154 On this basis, the requirement of ‘in the exercise’ is not fulfilled, for example, when the official acts purely out of personal motives155 If it should finally not be possible to assign an official’s act beyond doubt to public or private law, there is a rebuttable presumption that it falls into the realm of public law156

(3) Breach of official duty

Official duties are the personal behavioural duties (Verhaltenspflichten) of the official with regard to the exercise of his office. As such they constitute in theory internal duties the official owes to the public body as his employe157 and not to third parties158 They are nonetheless often identical with legal duties incumbent upon the state to the citize159 and – not least with regard to the effectiveness and wording of § 839 BGB – many of them are consequently ascribed an external effect as well160 Official duties are derived from all kinds and levels of legal provisions from community law to municipal law, including customary law and subordinate forms of law such as decrees and even instructions of the official161 In so far as the official has to follow orders of his superiors, he cannot be in breach of an official duty. When injustice is done to the citizen in such a case, it is the conduct of the superior which needs to be examined162

There is no conclusive list of official duties either in § 839 BGB or in Art. 34 GG. This vacuum has led the courts to create a multitude of official duties which often partly overlap163 The main official duty, which stems from the aforementioned Art. 20 III GG, is to act lawfully164 The nature of this general duty is so wide and vague that it serves as a generic term for almost all of the official duties165 Among them is the duty to exercise discretion in a proper and lawful manner166

Although German law frequently only refers to public functions in general, without distinguishing duties or powers, it does make the distinction between decisions involving discretion and ‘bound decisions’, i.e. acts without discretion. Once the conditions of the statute authorizing the exercise of discretion are met, discretion can comprise the choice whether to act or which decision to take167 Where the official acts within the ambit of his discretion, liability will not occur. That is true for German and for English law. It is acknowledged in both systems that discretion provides official bodies with a certain freedom to act. Yet, unlike the English courts, the German courts do not recognise an area of discretion which from the outset is beyond any judicial control. There is no reference to the allocation of resources or distribution of risks marking a boundary which might hint at a different, less policy oriented understanding of discretion in German law. That does not imply that the courts are allowed to substitute their decision for the one of the public body. They can only review specific errors of the public body in the exercise of its discretion. In English law it nevertheless seems that even in justiciable areas of discretion, at least until recently, the misuse of discretion had to reach an obvious level of abuse before a duty of care was imposed168 In German law the courts used to have a similar point of vie169 but it is accepted now that it is sufficient that the official applied his discretion incorrectly, even if it did not amount to evident abuse170 The scope of evaluation granted to the courts includes an erroneous use of discretion (Ermessensfehlgebrauch), an exceeding discretion (Ermessensüberschreitung), no use of discretion at all (Ermessensnichtgebrauch)171 or when the official did not realize that his discretion was limited to only one possible lawful decision (Ermessensreduzierung auf Null or Selbstbindung der Verwaltung)172

Other examples of official duties recognised to fall within § 839 BGB and Art. 34 GG are the duty to act proportionally (verhältnismässig)173 the duty to act without delay174 to act consistently175 the duty to provide correct informatio176 and especially the duties not to commit tortious act177 and to comply with the public law duties to maintain safety (öffentlich-rechtliche Verkehrssicherungspflichten). These duties extend to all forms of conduct under public law and can also constitute duties to act178

(4) Duty owed to a third party

The official duty must be owed towards the plaintiff179 An official duty is owed towards a third party provided it exists in the interest of a limited group of people worthy of protection and not only in the interest of the community as a whole180 This same consideration occurs in the context of § 823 II BGB181 Three conditions have to be fulfilled for such a duty which depend on its statutory framework and nature182 The official duty must generally be capable of including individual protection183 The plaintiff has to belong to the class of people protected by the duty and, finally, the damage suffered must fall within the protective ambit of the duty184 These formulas are quite open to interpretation by the courts and thus to implementation of policy and value judgments. What they convey is that an imposition of liability on the public body should in principle only be justified when the official duty establishes a somewhat proximate relationship between the plaintiff and the public body185 as for instance in administrative proceedings186

Such a connection is not required where the public conduct breaches the official duty not to commit tortious acts and directly violates interests of the plaintiff enumerated in § 823 I BGB, which are of an absolute nature towards everybody. In such circumstances the affected plaintiff is always a third person within the meaning of § 839 I BGB187 This is somewhat parallel to the English view that in cases of personal injury or property damage mere foreseeability is often enough to satisfy the requirements of a duty of care.

With its emphasis on a relationship or connection between the plaintiff and the public authority, the element of a duty owed to a third party is in general reminiscent of the requirement of proximity in the duty of care concept in the English law of negligence188 It also recalls the importance of the protective purpose of statutory powers and duties189 Under both legal regimes such an element is in theory intended as a means to limit the liability of public bodies190 the German courts have however extended the third party effect of many official duties191

(5) Fault

§ 839 I 1 BGB imposes liability only if the official has wilfully or negligently breached the official duty. The distinction matters because different rules apply depending on the kind of fault. In the case of negligent conduct, which is discussed here, § 839 I 2 BGB will apply and lead to an exclusion of the liability of the official or public body if the injured party can obtain compensation otherwise.

Negligence is defined in general in § 276 I 2 BG192 and, unlike English law, subdivided into light, ordinary and gross negligence. As in English law, the required standard of care is objective193 Decisive is what standard could be expected from the average official who was acting in compliance with his duties in the same external circumstances as the defendant194 the latter’s actual skill being irrelevant195 The plaintiff does not need to name or individualize the particular official who acted and fell below the necessary standard of care in order to succeed196

(6) Causation

The theory of equivalence or rule of conditio sine qua non requires for causation that the damage would not have occurred without the breach of official duty. This corresponds with the common law ‘but for’ test.

To keep this extensive concept of causation under control, the causal connection between damage and breach of duty has to be adequate. An adequate cause is one which generally is apt to enhance the objective possibility of or to produce such a consequence as has occurred197 It does not include conditions which according to objective human experience and common opinion cannot reasonably be taken into account198 This resembles the English law’s use of the concept of foreseeability, particularly in the test for remoteness of damage in the tort of negligence.

Another feature of causation raised in the area of public liability is the concept of alternative lawful conduct199 When the damage would have occurred even in the case of lawful conduct of the official, the breach of duty is generally not deemed to be a sufficient cause of the damage200

In relation to omissions, causation demands that – supposing there was a duty to act – the undertaking of the act omitted by the official would almost certainly have avoided the materialization of the damage201

(7) Damages

§ 839 I 1 BGB in conjunction with Art. 34 GG holds the public body liable for any damage arising from the unlawful conduct of the official202 The sole condition is that the suffered damage represents the kind of loss that the official duty was supposed to prevent203 Nevertheless, the willingness of German courts to impose liability on public bodies does not appear to depend on the sort of damage claimed to the same extent as in English decisions. German law is not as limited in the situations in which pure economic loss can successfully be claimed in the area of public liability.

The assessment of damages is determined according to the general rules in §§ 249 et seq., §§ 842 et seq. BGB with one difference: Public liability does generally not lead to compensation for damage in kind, as only monetary recompense can be awarded204 This is due to the fact that in most cases another public law act would be required to remedy the wrongful conduct of the official. Ordinary civil courts, however, which award the damage claims, have no jurisdiction to force public authorities to act in a particular way in the area of public law205 Moreover, liability in § 839 BGB, even when it is shifted upon the public body, remains focused on the person of the official himself who would be held liable in his capacity as a private person. A private person cannot perform public law acts206

Apart from pecuniary losses, compensation for non-pecuniary losses may be claimed for pain and suffering in cases of personal injury, deprivation of personal liberty and severe infringement of someone’s general right of personality on the basis of §§ 839, 847, 253 BGB, Art. 34 GG207

d) Limitation of liability

Even when the requirements of § 839 I 1 BGB and Art. 34 GG are satisfied, public liability is subject to certain restrictions in German law. These restrictions are often expressive of the special role of public officials and bodies performing public functions. The most important limitations are found in the Civil Code itself in § 839 I 2 BGB, § 839 II BGB and § 839 III BGB, as well as in § 254 BGB dealing with contributory negligence. Public liability can also be, in exceptional cases, partly excluded or limited by specific parliamentary statute for reasons of general public interest, as long as it is not abolished altogether or significantly undermined208

(1) § 839 I 2 BGB

The provision of § 839 I 2 BGB is also referred to as the subsidiarity clause. It provides that as a rule the official is not held liable for negligent conduct if the plaintiff can claim the same damages from somebody else209 as in the case of the existence of a joint or different tortfeasor210 Thus, when somebody other than the official primarily caused the damage, which in English law is discussed under the liability for acts of a third party211 § 839 I 2 BGB will in theory relieve the public official of his liability212 if this problem has not already been dealt with through causation.

Although § 839 I 2 BGB was originally intended only for the protection of the individual official213 it equally applies to public bodies, reducing their financial burden214 when, due to Art. 34 GG, they take over the official’s liability215 Nonetheless, the German courts have modified and updated the scope of application of the subsidiarity clause by making use of a teleological reduction (teleologische Reduktion)216 Accordingly, § 839 I 2 BGB is not applicable if it collides with the principle of equal treatment in respect of liability (haftungsrechtlicher Gleichbehandlungsgrundsatz), which has its foundation in Art. 3 I GG217 This principle comprises those situations in which, exceptionally, the content of public law duties incumbent upon the official acting in a sovereign manner corresponds with the general duty of care imposed on everybody218 thus removing any justification for a different treatment of public bodies and private persons.

This is of relevance in two areas of great practical importance: First, it was established as a principle of equal treatment of users of the highway which does not allow any privileges for public officials or bodies acting in their public capacity in the case of ordinary driving219 unless they are claiming special rights such as in a police operation220 The second area concerns the public law duty to maintain road traffic safety (öffentlich-rechtliche Straßenverkehrssicherungspflicht) with regard to the condition of the roads221 Here, too, the scope of the public duty is identical with the general duty of care of anybody who owns, controls or creates a source of danger222

The courts have further reduced the significance of § 839 I 2 BGB, not accepting every possible claim of the plaintiff against somebody else as an appropriate means of compensation within the meaning of the provision223 Public bodies are not discharged from their liability if this would be unreasonable and contrary to the intention of the rule224

The largest category of claims which on that basis is no longer considered as an alternative way of compensation consists of private and public law insurance claims225 with the exclusion of the tortfeasor’s compulsory car liability insurance226 The plaintiff earned these claims by using his own financial resources or through his work and performance227 they are often the result of private precaution. Moreover, according to German understanding, the insurance payment serves solely as a form of interim financing until the damage can finally be settled228 A claim for damages is subrogated by law to the insurer to the extent to which he has indemnified the injured person229 This cessio legis also indicates that neither the insurer nor the group of the insured as a whole shall in the end carry the loss unjustly suffered by one of their members, but that the tortfeasor must be held responsible for the damage he caused230 The insurer is only supposed to carry the risk of the enforceability of the claim for compensation231 He will therefore only bear the final loss when the tortfeasor is unable to pay232 which is not sufficient for § 839 I 2 BGB to apply233

The English courts take a different view of the role of insurance. In principle it is established that the insurance status of the parties should be irrelevant to the question of liabilit234 and that the insurability of the parties is to be disregarded235 But, in the area of tort liability of public authorities, insurance is sometimes seen as an adequate means of protection for the plaintiff, since otherwise only the plaintiff’s insurance company would benefit from the authority’s liability236

The German courts have been able to overcome the subsidiarity clause of § 839 I 2 BGB in the most frequent and important cases. In the areas where it still applies it is not necessary that the plaintiff has in fact obtained compensation from another source. The possibility of obtaining damages is sufficient to relieve public bodies of their liability237 This will, however, depend on the enforceability and reasonableness in the individual case238 If there are legal or factual grounds why the plaintiff cannot enforce the other claim in reasonable time, then it is not regarded as an appropriate form of compensation within the meaning of § 839 I 2 BGB, and the public body remains liable239

(2) § 839 II BGB

§ 839 II BGB confers upon judges exemption from civil liability for their activity in the context of giving judgments, unless their conduct amounts to a criminal offence. It thus establishes an immunity which is also found in English law. Apart from judges, no other group of officials or public bodies is given immunity in § 839 II BGB.

(3) § 839 III BGB

According to § 839 III BGB there is no public liability if the plaintiff has wilfully or negligently failed to avert the damage by making use of any other legal remedy. Like § 839 I 2 BGB, this provision originally aimed at benefiting the individual official reducing the chance of his personal liability240 With the assumption of liability by the public bodies, the function of this rule is now seen in emphasizing that the plaintiff has no right to choose between primary and secondary legal protection241 as the latter is subsidiary to the former242 Primary legal protection means the possibility of judicial review and actions for annulment according to the rules of administrative law; secondary protection refers to actions for damages. Only after the plaintiff has made full, but unsuccessful, use of available primary legal protection against public law conduct is he entitled to secondary legal protection243 However, the primary remedies must be designed to cover or prevent the entire damage arising out of the breach of the particular official duty in order to come under § 839 III BGB244

English law regards actions for damages in principle as on the same level with other remedies against unlawful conduct245 In the area of public liability, though, there is likewise the impression that the tort of negligence is seen as a remedy of last option.

(4) Contributory negligence

In addition to § 839 III BGB the general rules on contributory negligence in § 254 BGB apply246 This provision includes in its two sections the conduct of the injured party before the occurrence of the initial harm as well as afterwards, in the sense of mitigation of damages. Contributory negligence of the plaintiff will in contrast to § 839 III BGB only lead to a reduction of his claim equivalent to his share of responsibility247 which in extreme cases may also exclude the claim entirely.

e) Answerability as the proper party (Passivlegitimation)

Liability is generally imposed on the public body that entrusted the official with the office in the exercise of which he breached his official duties (Anvertrauenstheorie)248 It usually constitutes a territorial entity, whereas in English law public bodies are mainly statutory corporations and sued as such249

IV. Summary

On the basis of the framework of the ordinary law of torts special rules exist or have been developed by the courts in England and Germany in relation to public liability in negligence. Whereas in English law public bodies and their employees may be liable, Art. 34 GG has in German law established in principle the primary liability of public bodies, thus also implying who to sue.

Both legal systems use a concept of duty to determine liability. In England it is the breach of a duty of care in the tort of negligence; in Germany it is the breach of an official duty owed to a third party in § 839 BGB. Within these concepts the courts make use of vague formulas, be it the Caparo test or the protective ambit of the official duty, leaving a certain amount of flexibility to decide whether a public body should be held liable or not. Whereas the reference to policy arguments is part of English law, such a direct way of considering them is not provided by German law.

Problems such as justiciability and discretion, omissions and liability for acts of third parties have caused the English courts great concern and reinforced a reluctant attitude towards liability of public authorities, which has sometimes even led to immunities for certain kinds of conduct. Except for judges, immunities are generally not found in German law, although a similar result can be reached when official duties are held not to be owed to third parties. However, not sharing the approach of their English counterparts, German courts have, instead of restricting public liability, restricted the effect of the means provided by statute to limit it.

C. The English and German Cases

I. English and German judgments

The present chapter will juxtapose four English cases involving the use of policy arguments to limit or deny liability of public bodies in negligence and four German cases with similar factual situations to demonstrate the different judicial approaches in the two legal systems in this area of the law. One determining criterion for the choice of judgments was to select English cases representing the main features and range of policy arguments of the leading English case law on the subject. The other one was the possibility to find for the chosen judgments German decisions with more or less corresponding facts.

The English and German cases opted for come from the same areas of responsibility of public bodies and mark a contrast in the way the courts dealt with them. They are presented in a summarised version with facts and reasoning, concentrating on the issues relevant to the thesis. Three of the English decisions were striking out orders according to RSC Order 18, r 19250 The cases proceeded on the basis that the facts alleged in the statement of claim by the plaintiff(s) were true. The account of the facts of those cases was drawn up accordingly.

Each English case is directly followed by its German counterpart. A small section of explanatory notes is added to each pair of cases. Included are decisions of both the House of Lords and of the German Supreme Court as well as of the respective Courts of Appeal. In Germany there are several Courts of Appeal, each responsible for a certain geographical area. The Oberlandesgerichte as they are called consist of chambers of three judges, whereas the German Supreme Court (Bundesgerichtshof) is divided into Civil Senates comprising 5 judges. The amount of judges deciding a case in the highest civil courts in England and Germany is hence the same. In both countries they decide by simple majority.

There are some differences in style and structure between reported English and German judgments. In English judgments every judge involved in the decision, including a dissenting one, delivers his own judicial opinion under his name. The judgments usually contain a very full account of the reasoning by which a judge arrived at his conclusion. German judgments in civil matters are published as unanimou251 and anonymou252 decisions of the entire court, revealing neither the names of the judges nor whether there were any differences in opinion. They are usually much shorter than their English equivalents. Reported dissenting opinions are only found in the Federal Constitutional Court. Furthermore, the doctrine of binding precedent does not, in principle, exist in German law253 Previous case-law is cited by the courts either by way of example or to refer to an established practice of the court, of the Supreme Court in particular254

II. The cases

1. Liability of the police for failing to prevent crime

The first pair of cases deals with claims against the police for not preventing crime. The English case of Hill v Chief Constable of West Yorkshire Polic255 is contrasted with the German Supreme Court decision BGH LM § 839[fg] BGB Nr.5 from 1953256

a) Hill v Chief Constable of West Yorkshire
The facts

The plaintiff was the mother of the last victim of the so-called Yorkshire Ripper. He had, prior to the killing of the plaintiff’s daughter, committed 20 murders and assaults on young women in the police area of the defendant over a period of a little more than 5 years. It was claimed that during the police investigation of the series of crimes a number of mistakes were made such as the failure to compare and evaluate properly information in possession of the police pointing to the perpetrator. It had to be assumed that he would have been arrested before the murder of the plaintiff’s daughter if the police had exercised reasonable care and skill.

The plaintiff claimed damages in negligence on behalf of the estate of her daughter for failure of the police to apprehend the murderer in time and thus prevent her daughter’s death. The matter came before the court as an application by the defendant to strike out under RSC Order 18, 19 r on the grounds that the plaintiff’s statement of claim did not reveal any cause of action.

Outcome:

The claim was struck out by the court of first instance which was upheld by the Court of Appeal. The House of Lords unanimously dismissed the plaintiff’s appeal. It was held that the police in the course of their investigations owed generally no duty of care to individuals to identify or apprehend criminals. The leading opinion was given by Lord Keith of Kinkel with whom the other judges agreed, only Lord Templeman providing additional reasoning.

Opinion of Lord Keith of Kinkel

The decision of Lord Keit257 was based on two separate grounds. The first was that there was not sufficient proximity between the plaintiff, or rather her daughter, and the defendant to impose a duty of care. In addition, there were compelling public policy considerations which in Lord Keith’s opinion constituted an independent reason not to hold the police liable in negligence.

As regards proximity he thought that liability for the failure to prevent wilful injury by a third party could only arise if some special relationship existed between the defendant and either the victim or the wrongdoer, which was not the case. The identity of the murderer was not known to the police. The plaintiff’s daughter was merely a member of a large undifferentiated class of potential victims. That she was young and female did not put her at a particular risk258

In relation to public policy Lord Keith had 4 groups of arguments against the imposition of liability on the police in the present circumstances259

First, potential liability would not bring about a higher standard of care or motivation on the part of the police in carrying out their functions of investigating and suppressing crime. They already tried to perform their duties as best as they could. Liability would on the contrary be likely to cause a ‘detrimentally defensive frame of mind’ of the police interfering with their work.

Secondly, a recognised duty of care to apprehend a criminal would result in numerous lawsuits against the police. Some of them could make it necessary to review extensively the nature of a police investigation including decisions of policy and discretion. Yet, the courts would often regard such decisions as not being justiciable.

Thirdly, liability would lead to a serious diversion of manpower, time and scarce financial resources of the police from their main function of suppressing crime to the avoidance and preparation of litigation.

Finally, files already closed would have to be re-examined for the sake of the standard of competence and not for criminal justice260 On the basis of these policy considerations Lord Keith went as far as to approve an immunity of the police from actions in negligence in respect of their activities in the investigation and suppression of crime261

Opinion of Lord Templeman

Lord Templema262 regarded a public inquiry and not a civil action as the appropriate means to investigate the efficiency of the police. He agreed with Lord Keith that the imposition of liability, in principle enabling everybody to challenge the work of the police in court, would be distractive and adversely affect their efficiency263

b) BGH LM §839[fg] BGB Nr.5
The facts

The plaintiff was the victim of a burglary which was committed by a band of robbers. Some members of the band were known to the police prior to the robbery of the plaintiff as having been involved in another burglary. Still, the two police officers who had found this out deliberately took no further action against the criminals to shield them.

Outcome

The plaintiff successfully sued the respective Land which employed the two police men before the lower courts for breach of official duty according to § 839 BGB, Art. 34 GG. The Supreme Court dismissed the defendant’s appeal.

The Supreme Court focused in its judgment on the existence of an official duty and on whether this duty was owed to the plaintiff264 It held that the police officers had an official duty to take action against the members of the band of robbers they knew before those committed the burglary of the plaintiff or any other crime. Due to their knowledge of the severe crime already committed by the band and of the identity of some of its members who later took part in the burglary of the plaintiff, they had no discretion left in deciding whether measures against the criminals were necessary. In their capacity as policemen they had the duty to prosecute criminals and to prevent criminal acts. On the facts of the case their inactivity was not justifiable by any police considerations. There was a state of danger which made an intervention absolutely necessary.

This official duty to intervene was owed towards the plaintiff as a third party in the sense of § 839 I 1 BGB. The duty to prevent criminal acts was owed by the police not only in the interest of the community as a whole but also in the interest of any individual at risk of crimes which directly violate his protected interests or rights. As the duty arose out of the general duty of the police to avert dangers, it did not matter that the plaintiff, who was unknown to the police before the burglary, was only a member of an undetermined class of people possibly at risk, which basically comprised any citizen of the region. According to the court, a third party towards whom the police owed such duty was not only somebody who had already somehow emerged from the group of potential victims. This class of people had to be drawn considerably wider.

In the present case the police officers also breached their official duty not to abuse their office by their failure to act due to motives incompatible with the demands of proper police administration. This duty was equally owed to anybody who could be adversely affected by the abuse.

c) Notes

The German decision factually differs from the Hill case because the police knew of the identity of the criminals and abused their powers. The cases nevertheless seem to be comparable. Other English cases have shown that the approach in Hill is also adopted when the identity of the offender is known to the police265 Moreover, the reasoning of the German court in its entirety suggests that, in contrast to English law, there is an official duty of the police to prevent criminal acts owed to possibly affected third parties whenever the police are in an obvious position to prevent serious crimes, and not only when they have abused the powers of their office. Such abusive conduct serves as an additional ground to impose liability. The decision is likely to have been the same if the police officers had simply carelessly forgotten to apprehend the criminals in time. The case is cited in recent decisions of the Supreme and other court266 when they refer in general to the official duty owed by the police to take action in the interest of individuals at risk of criminal acts likely to cause substantial damage.

The German Supreme Court did not raise any of the policy concerns of the Hill case. It also had no difficulties with the proximity issue although the plaintiff was a member of a large and undetermined class of people.

2. Liability of the prosecution service

The second pair of judgments is concerned with careless conduct of the prosecution service. The cases are Elguzouli-Daf v Commissioner of Police of the Metropoli267 and BGH NJW 1998, 751268

a) Elguzouli-Daf v Commissioner of Police of the Metropolis
The facts

Under the heading of the Elguzouli case are in fact two cases involving similar facts. In the first case the plaintiff had been charged with rape and buggery and was taken into custody in September 1992. Forensic examination established that he could not have been the offender, but proceedings were not discontinued and it took a total of 22 days until he was released. The plaintiff in the second case, who was arrested in October 1989, had been charged with handling explosives and remanded in custody. A forensic scientist had claimed to have discovered traces of explosive residue on swabs taken from the plaintiff’s hand which the latter explained as innocent contamination. It was only at his committal proceedings 85 days later that the Crown Prosecution Service (CPS) offered no evidence against him and he was set free. Both plaintiffs brought an action for damages in negligence against the CPS, being the second defendant in each case. The first plaintiff claimed that the CPS had failed to obtain, process and communicate the results of the forensic evidence with due care. The second plaintiff alleged that it should not have taken the CPS 85 days to come to the conclusion that its prosecution was bound to fail.

Outcome

The CPS successfully applied to strike out the claims of the plaintiffs. The plaintiffs’ appeal was dismissed by the Court of Appeal in an unanimous decision which held that the CPS owed generally no duty of care to those it prosecuted. Steyn LJ gave the main judgment with which Rose and Morritt LJJ concurred.

The judges of the Court of Appeal acknowledged that the plaintiffs had been deprived of their personal liberty and suffered damage because of the careless behaviour of the CPS. Applying the principles laid down in Caparo Industries Plc v Dickma269 to establish a duty of care, they admitted that the harm of the plaintiffs was arguably foreseeable. Yet, they denied the element of proximity and that it was just, fair and reasonable to impose a duty of care on the CPS. For Steyn LJ these two elements merged into each other in the present case270 Drawing an analogy to the Hill case271 the judges stressed in particular the weight of the policy considerations, similar in both cases, against the recognition of a duty of care. Steyn LJ regarded them as ‘compelling considerations, rooted in the welfare of the whole community, which outweigh the dictates of individualised justice.272

Judgment of Steyn LJ

Steyn L273 thought that some of the policy factors relied on in the Hill case could have an even bigger influence in the present case. The work of the CPS to investigate and prepare criminal cases required a greater use of judgment and discretion than the work of the police, rendering it even more deserving of protection274

His major concerns were that the imposition of a duty of care would lead to a defensive approach by the CPS to its duties and to a diversion of valuable resources away from prosecuting criminals to fighting civil actions275 The CPS was likely to be tied up in a great number civil law suits which would impair the whole criminal justice system. Consequently, and irrespective of any operational and policy distinction, there was no room for a duty of care owed by the CPS, Steyn LJ holding it immune in general from liability in negligence276 The only exception was when the CPS had voluntarily assumed responsibility for a particular accused person.

Judgment of Morritt LJ

Morritt L277 in principle agreed with Steyn LJ, reaching the same result by a combination of reasons: One of them was that liability in negligence would more or less incorporate the torts of malicious prosecution and misfeasance in public office, rendering them unnecessary. Furthermore, a duty of care would be of such a wide nature that the policy considerations mentioned in the Hill case and by Steyn LJ had to prevail278

b) BGH NJW 1998, 751
The facts

At the request of the prosecution service the County Court (Amtsgericht) issued an arrest warrant for the plaintiff in February 1990 on suspicion of defrauding his former employer. The plaintiff was arrested in Italy in March 1990 and remained in custody – meanwhile having been extradited to Germany – for almost two months. The arrest warrant was later formally annulled and the preliminary proceedings against the plaintiff were discontinued. The warrant of arrest was primarily based on the accusation of a former business partner. This allegation was false in the light of evidence available when the prosecution service requested the arrest warrant.

At the time of his arrest the plaintiff was managing director of the V company. He also had a consultancy contract with the P company earning him DM 50.180,- per year. The P company terminated the contract with the plaintiff as soon as his arrest was publicised at the beginning of May 1990. In mid-May 1990 the plaintiff signed the dissolution of his managing director contract with the V company.

The County Court decided in April 1991 that the plaintiff was entitled to damages for the time in custody according to the Compensation for Prosecution Measures Act (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen – StrEG). The plaintiff claimed his loss of income and the legal costs he had incurred. The ministry of Justice of the defendant Land which was in charge of determining the amount of compensation under the Act accepted only liability for parts of the legal costs of the plaintiff. The plaintiff then sued the defendant for loss of income and for his remaining legal costs. He also sought a declaration that the defendant had to compensate the further damages caused by the termination of the contract with P.

Outcome

The District Court allowed the claim up to DM 4.228,45 to cover further legal costs of the plaintiff. The Court of Appeal awarded him in a part-judgment DM 160.990,78 for breach of official duty by the defendant covering loss of income as well as legal costs and granted the declaration. The appeal of the defendant was dismissed by the Supreme Court.

The Supreme Cour279 upheld the finding of the Court of Appeal that the investigating prosecutor had culpably breached an official duty by assuming that there was a ‘compelling suspicion’ (dringender Tatverdacht) of embezzlement against the plaintiff, which was a condition for the arrest warrant, and by requesting the latter.

The court acknowledged that some measures of the prosecution service, including the request for an arrest warrant, could not be reviewed by the courts on the merits but only whether there were reasonable grounds for taking them (Vertretbarkeit or vertretbar). The Court of Appeal had held that the assumption of a compelling suspicion against the plaintiff was untenable; this extended to the request for the arrest warrant. It had found that on the strength of other evidence available to the prosecution it was already obvious at the time of the request for the arrest warrant that the accusation against the plaintiff was implausible and unbelievable.

As the Supreme Court does not engage in fact-finding of its own, it was bound to the facts as found by the Court of Appeal and could only review that decision in respect of errors of law (Rechtsfehler), in particular whether the lower court had misjudged the meaning of the term vertretbar. Such errors of law were not apparent.

c) Notes

In the German case the prosecution service was held responsible for inappropriate conduct at the time of the request for the arrest warrant whereas in the English case allegations were raised against the CPS for the time after the arrest. Still, in both cases evaluations and conclusions of the prosecutors lay at the heart of the claim.

German courts only very rarely acknowledge an area where their power of review is restricted, as in principle all administrative conduct is justiciable in German law280 Discretion is one exception281 The same is true for certain functions and decisions of the prosecution service. The courts only review them according to their reasonableness, not their correctness. A decision is not reasonable (unvertretbar) when – taking the requirements of effective criminal justice into account – it is not comprehensible anymore282 Both the English and the German court are thus concerned to preserve an area of individual judgment and evaluation for a prosecutor. Yet, the German court grants less judicial freedom to the prosecutor, not raising any of the policy arguments put forward by the English court.

3. Liability of highway authorities

The third pair of cases concerns the failure of highway authorities to eliminate road hazards. The House of Lords was faced with this problem in Stovin v Wise283 and the German Supreme Court in BGH NJW 1980, 2194284

a) Stovin v Wise
The facts

The plaintiff was seriously injured in a collision with the defendant’s car which attempted to turn out of a dangerous junction on the plaintiff’s left into a main road. Visibility was very limited at the junction because of a bank of earth topped by a fence on adjoining land owned by British Rail. The defendant could not see the coming traffic until she had actually started to approach the main road. Accidents had occurred at the junction at least three times before. Norfolk CC as the responsible highway authority knew of the dangerous situation. It had a statutory power, stipulated in the Highways Act 1980, to require British Rail, as the owner of the land, to remove the obstruction. Instead, it took the decision to cart off the earth bank at its own cost about a year before the plaintiff’s accident happened. It asked British Rail for permission to do the necessary work but got no final response. The highway authority did not inquire again and the obstruction was not removed.

The defendant joined the highway authority as third party to seek a contribution for the damages payable to the plaintiff for his personal injuries. She alleged that the authority was in breach of a statutory duty under the Highways Act 1980 and liable to the plaintiff in negligence.

Outcome

The High Court and the Court of Appeal both held that, although there was no action for breach of statutory duty, the highway authority was under a common law duty of care to improve the safety at the junction and liable to the plaintiff in negligence for its failure to exercise its statutory powers. They found that it was 30 % to blame for the plaintiff’s injuries. These decisions were overruled by the House of Lords which allowed the appeal of the highway authority by a bare majority of three to two. The main opinion was given by Lord Hoffmann with which Lord Goff of Chievely and Lord Jauncey of Tullichettle concurred. Lord Nicholls of Birkenhead gave the dissenting opinion agreed with by Lord Slynn of Hadley.

Opinion of Lord Hoffmann

Lord Hoffman285 set out the difficulties involved in dealing with the liability for an omission by a public authority to use its statutory powers and conducted a thorough review of previous authorities involving similar issues. He could only concede the possibility of liability for a failure to exercise a statutory power if the two minimum requirements of irrationality and exceptional grounds were fulfilled286

These conditions were not met in the present case. The highway authority had not acted irrationally because it was always in the ambit of its discretion whether anything should be done about the junction. There could also be no general reliance on road hazards being routinely removed. The plaintiff had not been arbitrarily deprived of a benefit provided to others287

As to the lack of exceptional grounds requiring the imposition of liability on the highway authority, Lord Hoffmann pointed out that the failure to comply with a public law duty did not necessarily lead to compensation, especially against the statutory background of the present case. He referred to the range of policy arguments already known from the Hill and Elguzouli cases. As in Hill and Elguzouli, these considerations were so important to him that they alone were sufficient to deny a duty of care, even if the authority’s behaviour was regarded as irrational288

He feared that the imposition of a duty of care would lead to local authorities taking costly measures to avoid liability. More money would be devoted to improve the standards of roads leaving fewer resources for other important social services and resulting in an inappropriate change of their priorities289 A likely consequence of imposing liability was, he thought, that authorities would afterwards insist on better standards than were actually necessary, leading to unnecessary costs for the community.

Furthermore, as the standard of road improvements was a matter within the highway authority’s discretion, the courts were not entitled or able to judge what was appropriate290 It was public knowledge that highways might contain dangerous sections. Drivers would have to take due care themselves and take the highway as they find it. Finally, accident victims would usually be able to rely on compulsory insurance for compensation291 whereas tort liability would only be an additional burden on public funds292

Dissenting opinion of Lord Nicholls of Birkenhead:

Lord Nicholls pointed out a combination of several factors which in his view made it fair and reasonable to impose a duty of care293 Among those factors were the risk of physical injury to highway users because of the obstruction to visibility, the actual knowledge of the danger by the authority in contrast to many drivers and its powers to remove it. The purpose of the statutory powers to protect road users could only be achieved by an effective remedy for damages, especially when the injured party had no insurance claims294

b) BGH NJW 1980, 2194
Facts

The wife of the plaintiff who was driving his car wanted to turn left into a road. This road had two lanes which were separated by a central reservation upon which there was a hedge which had reached the height of 1.2m. The plaintiff’s wife approached the central reservation which offered a gap for the turning traffic. As she tried to turn she collided with another car already driving on the left lane. The plaintiff claimed that his wife had not seen the other car in time only because the hedge on the central reservation was too high and had impeded her vision. Besides the owner of the other car, he sued the city in which the accident had occurred for the damage to his car.

Outcome

The District Court dismissed the plaintiff’s claim against the owner of the other car but granted the claim against the defendant city to the amount of one half of the assessed damages. Upon the defendant’s appeal the Court of Appeal rejected the plaintiff’s claim against the city. The Supreme Court allowed the plaintiff’s appeal and sent the case back for trial.

The Supreme Cour295 held that the defendant city had breached its official duty to maintain road traffic safety. This public law duty, derived from the Roads Act of the respective Land, had the same content as the general legal duty to maintain safety (allgemeine Verkehrssicherungspflicht). Its scope was determined by the importance of the highway in question and by how often and by what kind of traffic it was used. The duty encompassed all measures which were necessary to provide users of the highway with roads in an adequately safe condition. Nevertheless, the road user had to adapt his driving to the discernible road conditions and generally take the highway as he finds it. Therefore, the local authority on which the duty was imposed only had to take reasonable steps to remove those dangers which could not be seen or seen in time by a user who exercised due care.

On the basis of these principles the defendant had to keep the height of the hedge on the central reservation down to a level which did not seriously impede the sight of the turning traffic. However, at the time of the accident it was not possible to gain sufficient visibility of the left lane before turning296

As § 839 I 2 BGB did not apply in the area of road traffic safety297 the defendant could not rely on a possible liability on the part of the driver of the car, the plaintiff’s wife, in order to escape his own liability. The case had to be sent back for trial to determine what weight was to be given to the defendant’s breach of duty in comparison with the contributory negligence of the plaintiff’s wife298

c) Notes

In the English case, the obstruction to visibility was on private property. The hedge in the German case was part of the road which was property of the defendant. This difference does not render the cases incomparable. The main reason for the German defendant being responsible for the removal of the obstruction was not his ownership of property but his statutory duty to maintain road traffic safety, which admittedly is more than the statutory power in Stovin v Wise. If the obstruction had been on adjoining private property, then it is generally the duty of the owner of the property to avert any danger arising therefrom to others. But also in German law the public authority has a right to ask for the elimination of a known danger on private property as part of its general duties to protect the public from danger. If the private person is not willing or unable to act, the relevant public authority will take the necessary action for him299

Interestingly, both courts raised the same argument: The road user has to take the highway as he finds it. Yet, they drew different conclusions, the German judgment not sharing Lord Hoffmann’s concerns on the authority’s misconduct constituting an omission.

4. Liability of social services

The final pair of cases, comprising the Court of Appeal’s judgment in W v Essex C300 and the decision of the German Court of Appeal in Hamm in OLG Hamm VersR 1994 677301 is about the non-disclosure by public authorities of essential information in the sphere of child care and adoption.

a) W v Essex CC
Facts

The plaintiffs were a couple and their natural children, the defendants Essex CC and one of its social workers. The couple had applied to become foster carers. They made it clear that they did not want to take any adolescent known or suspected to be a sexual abuser into their care. A few months later a 15-year-old boy was placed with them. Upon the parents’ specific inquiry the defendants confirmed that he was not suspected to be sexually abusive, although they knew the boy had received a caution for indecent assault on his sister three years before. In the course of the following month all of the plaintiffs’ children were physically and sexually abused by the foster child. Besides their abuse, the children suffered psychiatric illness, as did the parents when they discovered what had happened.

The plaintiffs claimed damages from the defendants relying on negligence for failure to inform them and for positive misinformation, on misfeasance in public office and breach of contract. The matter came before the court as a striking out application by the defendants.

Outcome

The Court of Appeal consisting of Stuart-Smith, Judge and Mantell LJJ unanimously confirmed the decision of the court of first instance to strike out the claims for misfeasance in public office, breach of contract and the claim of the foster parents for damages in negligence. The parents’ claim was bound to fail as their psychiatric harm was caused by learning of, and not witnessing, the injury done to their children, thus not fulfilling the requirements laid down in Alcock v Chief Constable of the South Yorkshire Polic302 for the recovery of damages for nervous shock of secondary victims.

The claims in negligence of the children were allowed to proceed to trial by a two to one majority, Stuart-Smith LJ dissenting. The Court of Appeal thus held that it was arguable that a social worker placing a child with foster parents was under a duty of care to provide the foster parents with such information as a reasonable social worker should provide, leading to his personal and the council’s vicarious liability. The following analysis of the judgment is restricted to the children’s claims in negligence.

As the foreseeability of the injury to the plaintiffs and a relationship of proximity between them and the defendants were conceded, the question of a duty of care owed to the children depended only on whether it was fair, just and reasonable to impose it in the circumstances of the case. In other words, policy considerations were held to be decisive by all three judges of the Court of Appeal. They focused in particular on whether the policy arguments raised by the House of Lords in X v Bedfordshire C303 to deny a duty of care in respect of a child whose placement in care was under consideration were also applicable in the present case. It was on this issue that the judges disagreed. Judg304 and Mantell LJ305 distinguished the present case from X v Bedfordshire CC as the defendant was not exercising any statutory functions under the child welfare system towards the abused plaintiffs. They were prepared to hold that it was fair and reasonable to impose a duty of care. Stuart-Smith LJ, on the other hand, thought that the concerns in the Bedfordshire case were just as relevant in the present case and pointed against recognising a duty of care306

Dissenting judgement of Stuart-Smith LJ

Stuart-Smith LJ307 although acknowledging the danger of deterring potential foster parents308 adopted the following policy concerns from the Bedfordshire case to deny a duty of care: To place the abuser in the family of the plaintiffs could have been the result of a multi-disciplinary process involving various parties. It would be unfair to single out anyone of them for the imposition of liability309 Moreover, dealing with children at risk was an extraordinarily delicate and difficult task for local authorities, the imposition of a duty of care being incompatible with the social worker’s mediating role in conflicts frequently arising between foster children and parents310

Liability would probably also lead to a more defensive approach of the authorities to their duties. They might provide foster parents with unnecessary or unproven information and take too long to reach a decision311 The abused plaintiffs were entitled to compensation under the Criminal Injuries Compensation Scheme, providing them with sufficient protection312

Judgement of Judge LJ

According to Judge LJ313 representing the contrary position, the defendants had assumed responsibility towards the plaintiffs not to place a sexual abuser with them314 The statutory framework already imposed a duty on the authorities to give some information to foster parents before the placement of a child was made to enable them to care properly for the child. Their decision should be based on as much information as possible. The disclosure of facts already known to the local authority could hardly lead to its acting too cautiously or to an unduly increase of its burden in the decision making process315 Seriously needed foster parents would in addition be less likely to come forward if a duty of care was not recognised.

Judge LJ limited the imposition of a duty of care on the disclosure of facts known to the authority. He was concerned that a duty of care in relation to what the public body ought to have known would be capable of interfering with the proper exercise of the authority’s functions316

b) OLG Hamm VersR 1994, 677
Facts

The plaintiffs, a married couple, applied to the youth welfare department (Jugendamt) of the defendant city for the adoption of a child. In their application they expressly stated that they did not want to adopt a mentally retarded child. They were allowed to take a two-year-old boy into their care on the basis that the female plaintiff stopped working and stayed home with the child. This child had already been suspected of mental retardation during a previous stay in hospital. In addition, the youth welfare department was in possession of a report indicating that the child had only reached the stage of development equivalent to an age of 8 months, yet not necessarily linking these deficiencies to possible brain damage. The plaintiffs were at no time told that something could be wrong with their child. In the following years his developmental deficiencies did not disappear and finally he was diagnosed with early childhood brain damage.

The plaintiffs claimed damages from the defendant for loss of earnings on the side of the female plaintiff and sought a declaration that the defendant was liable to pay compensation in respect of all material damage arising from the adoption of the child in the future.

Outcome

The District Court granted the plaintiffs’ claim including the declaration. The Court of Appeal dismissed the defendant’s appeal. The Supreme Court refused to accept a second appeal by the defendant. The Supreme Court’s decision has not been published.

The Court of Appea317 held that the defendant’s youth welfare department (Jugendamt) had negligently breached its official duties with regard to the plaintiffs, because it did not inform them during the preparation and the course of the adoption proceedings that the child was suspected to be mentally retarded. The defendant was thus liable according to § 839 BGB, Art. 34 GG.

Although there was no statutory duty in the Adoption Act (Adoptionsvermittlungsgesetz) to inform potential foster-parents about the state of health of the child, the statutory provisions provided for the Jugendamt to make all the necessary inquiries in the course of the preparation of the adoption. This included the gathering of information about the state of health of the child. The Jugendamt also had a duty to advise the prospective adoptive parents in detail. These responsibilities could only mean that prospective adoptive parents were entitled to be informed about all essential facts regarding the child, especially about a suspected illness318 Only then would they be able to make a free and responsible adoption decision, which was a necessary precondition for the development of a healthy parent-child relationship. This official duty was owed to the plaintiffs by the defendant who knew that a suspected illness of the child was of crucial importance to the plaintiffs and did nothing to further investigate the health of the child319

c) Notes

Apart from the kind of loss claimed, the facts of the two cases are very similar. The defendants failed to inform the plaintiffs about a known or suspected special feature of the child, who was to be taken care of, which was of upmost importance to the plaintiffs. In both cases there was no express statutory duty to provide the relevant information to future foster parents.

W v Essex CC was chosen in the present context because the policy arguments that usually prevail in the public interest were discussed by all members of the court, although the majority did not on these facts approve them. No such concerns were raised in the German decision. In addition, and contrary to the German Court of Appeal, Judge LJ distinguished between what the authority knew or ought to have known, acknowledging the possibility of a greater influence of some policy considerations in the latter case.

It is understood that the case is subject to appeal to the House of Lords.

D. Evaluation of policy arguments

I. The kind of policy arguments

The English judgments raised more or less the same policy arguments in cases involving very different kinds of public bodies or areas of their activities. The courts denying liability based their decisions on a core group of two considerations: First, potential liability would lead to public bodies and their employees taking a defensive approach to their work. Secondly, it would result in the diversion of scarce resources away from the primary functions of public bodies to avoiding litigation and taking defence measures. Both of these consequences would adversely affect the quality of their work.

Closely related to these concerns is the fear of a great number of lawsuits and vexatious claims, the so-called floodgates argument. It is raised in the police and CPS cases and often referred to as an argument against extending liability in the area of negligence in general. An ‘avalanche’ of claims would inevitably further reduce the available means of public bodies.

Another group of arguments focuses on the functions of the authorities. Whether it is the nature of police or CPS investigations320 the standard of road improvement321 or the delicate task of dealing with children at risk322 all these matters are regarded to be inapt for judicial evaluation, mainly due to their discretionary features.

Furthermore, judges argue that adequate protection for the plaintiffs already exists by way of insurance or other remedies, as in the Stovin and the Essex cases323 rendering a negligence action unnecessary. Finally, there is a concern particularly in the area of child care and education about the problems of adjudicating a multi-disciplinary decision-making process, probably involving various responsible parties.

The German courts on the other hand have neither discussed nor addressed in their judgments any of the policy arguments summarised above, with the sole exception of partly limiting the judicial evaluation of certain decisions of the prosecution service. Examining the conditions set up by statute for a public liability claim, they stressed more plaintiff-oriented concerns: the individual at risk of crime, the protection of individual liberty and of users of the highway against hardly identifiable dangers, as well as the importance of being able to make a free and responsible adoption decision. These considerations are also expressive of judicial policy but the German courts outline different concerns.

II. Critical review of the English policy arguments

The overriding function of the law of torts may be arguable. It seems to be uncontested, however, that one of its most important aims is to compensate victims for losses suffered because of wrongs committed by others324 Lord Browne-Wilkinson acknowledged in X (Minors) v Bedfordshire C325 that the policy of the law in principle requires wrongs to be remedied and only makes an exception for very significant reasons. That is why courts should only base their judgments on policy arguments when the latter are so evident that they leave no room for any doubt about their appropriateness326 Whether policy considerations can ever provide such certainty may be questionable due to their nature. In addition, policies are subject to change. This does nevertheless not preclude examining whether the policy arguments relied on in the English cases contain sufficient weight to justify not imposing liability. It makes such examination only the more necessary.

What is striking is that the English judges apply the policy arguments without referring to empirical or other kinds of evidence to support them. Not all of them may be suitable for proof. This cannot be said, however, of the defensive approach, the diversion of resources and the floodgates argument. These do raise factual or empirical issues, even though they may be difficult to assess. It is no answer to this criticism that often the courts deal with these arguments in striking out actions where they have no chance of obtaining evidence. This would rather be a reason not to rely on them in such actions. The courts’ consciousness that their assumptions are unproven is apparent in the more tentative language in which they express them327 The assumptions may not be wrong, but they are not necessarily true either. Policy arguments can often be made both ways; that is why a careful approach to their use is required.

1. Defensive approach

The concern that potential liability would cause employees of public bodies to act in a defensive, too careful manner in carrying out their functions is one such two-sided argument. First of all, there is nothing wrong in principle with somebody acting more carefully, thus improving the standard of care, if this way harm to others can be avoided. One might also wonder why a duty of care should make public officials unnecessarily careful instead of encouraging them to exercise the ordinary standard of due care which would be sufficient to protect them against liability. It could just as well be argued that the refusal to hold public bodies liable for certain kinds of conduct would make them more lax in the exercise of their duties leading to a deterioration in the standard of their work328 As the individual employee will in practice in most cases not be financially responsible himself due to the vicarious liability of the public body329 it is not evident that he will constantly be looking over his shoulder. Besides, deterrence has always been recognised as one the objectives of tort liability330

Moreover, even the House of Lords does not use this argument in a uniform and consistent way. Whereas Lord Keith in the Hill case did not think a defensive mind would improve the standard of care or motivation of the police force331 it was presumed in Stovin v Wise that one of the likely consequences of liability in the Anns v Merton cas332 was that building inspectors insisted on better standards than necessary333 This has to be contrasted with the firm statement of Lord Reid in the Dorset Yacht cas334 who did not believe that British prison officers would be affected at all by such concerns. These examples only confirm the speculative character and the unpredictability of the argument.

2. Diversion of scarce resources

The diversion of resources claim encompasses a two-fold fear of losing assets. On the one hand by taking preparatory and defence measures against litigation, on the other hand by having to pay the actual damages or – which is a more common practic335 – the premiums for insurance cover.

No other profession – including NHS hospitals – can successfully invoke this argument, nor can private individuals. Any kind of lawsuit or liability will involve the consumption of time, attention and financial resources which could have been employed in a different way. Nobody has unlimited resources. This has nevertheless not lead to the exemption from liability of public bodies in other areas of tort law, or even for other kinds of their conduct, such as careless driving, where this consideration would be equally applicable with reference to more important functions.

It is not disputed that the financial situation of public bodies is tense. Local authorities, which would have to carry the burden of liability in many cases and whose only income comes from rents, charges, fees and the council tax, are dependent on grants from the central government to carry out their widespread functions336 In addition, the amount of claims against public bodies and of compensation paid out by their insurers has increased. This was shown by Tony Weir in 1989 who estimated that over 50 million Pounds were paid out on third party insurance policies of local authorities in 1987, with a rising tendency337

Yet, in comparison with the total government expenditure of that year, 42.000 million Pounds338 the sum, which covered all kinds of successful claims against local authorities except motor vehicle policies and employer’s liability, appears less impressive. Weir maintained that the issue at stake was not the absolute amount but whether the money could be spent in a better way339 One answer might be to ask what better way there is to spend the money than ‘to do justice’ and compensate victims for damage caused by careless public authorities.

It is further said that local authorities would only be able to meet the increase in claims, pay-outs and insurance premiums by raising council tax or reducing their services340 The argument appears misconceived. If public bodies took more care in the discharge of their functions in the first place, the question of compensation would arise less frequently, thus reducing their financial burden. Their financial situation cannot be attributed to the victims of their tortious conduct. Even in cases of a failure to confer a benefit or protection, there is a valid interest that those services are distributed evenly, many of them being intended for the individual as well as the collective welfare. It seems that the argument of limited and diverted resources has sometimes become an automatic response providing an easy shield for public authorities.

3. Floodgates

The ‘floodgates’ argument is raised whenever it is feared that potential liability might get out of control. With regard to public bodies it may be supported by the fact that plaintiffs will always be provided with a tempting defendant who, unlike a private person, cannot become insolvent341

This has to be weighed against surveys which suggest that many people are discouraged from taking any legal action because of the risk of costly, long-lasting, and uncertain litigation342 Other areas of negligence in which a duty of care was imposed have revealed that litigation does usually not expand unreasonably343 Besides, despite the rising number of claims against public bodies in absolute terms, a lot of them are of a kind which will in fact only rarely occur. The cases in the previous chapter are suitable examples. The vast majority of the population is not affected by issues like imprisonment, murder or adoption problems. Most road accidents happen solely due to the drivers’ own negligence. Moreover, public bodies usually act in a way which gives no cause for complaint.

Admittedly, there are areas of public administration like the supervision of financial service344 and possibly building inspection345 where the recovery of large sums of economic loss coincides with a large number of people possibly affected. In such situations it appears more justifiable to restrict the liability of public authorities in negligence, as indeed the courts have done.

Another concern of the floodgates argument is that many claims will be of a fraudulent nature346 Yet, there should be enough confidence in the courts that they are able to detect whether a claim is well-founded or of a dubious quality. Litigation is a costly and risky undertaking. Each case is decided on its own merits, subject to the doctrine of precedent. A person is therefore likely to think twice before starting legal proceedings. For those who do not possess the means to sue rules as to cost and the limitation on legal aid will prevent the abuse of the judicial system347

Finally, it should be noticed that in the present cases the floodgates argument is invoked to deny completely the existence of a duty of care. A duty of care alone, however, is not enough to establish liability in negligence. The plaintiff will still have to show that the requirements of breach of duty and causation are met348 This means that there is room for the courts to control liability at other levels. If they apply the Bolam test for professional negligenc349 to create a standard for the breach of duty which takes into account the special role and needs of public bodies, the courts would be able to provide sufficient protection with adequate justification350 Thus limiting the ‘floodgates’, they would also help to reduce the courts’ fear of public employees adopting a defensive approach to their duties.

4. Special nature of function

When the courts single out certain areas of responsibility of public bodies as not being suitable for judicial re-examination, the question is whether they sometimes go too far when deciding what is not for them to evaluate. Looking at Lord Hoffmann’s approach in Stovin v Wise351 for example, doubts arise. In his view the assessment of the necessary standard for road improvements would have to be left to the highway authority’s discretion. Not only does this confer an implicit immunity upon the highway authorities in the area of improving the safety of the highway, but the immunity is conceded too easily. The minimum standard of safety required in order not to endanger traffic can certainly be determined with the help of expert witnesses, as it is primarily a matter of factual issues.

Furthermore, no professional in the private sector can escape liability by referring to the delicate task he is performing. Doctors, for instance, frequently have to make difficult decisions involving discretion, often at least indirectly affecting resources of hospitals, and they are not protected by an immunity from negligence actions352 It may be said that such an argument overlooks the point that public bodies exercise statutory functions which do not exist in the private world. Yet, it could also be argued that the unique position of public bodies imposes special obligations to avoid causing harm to others. Especially as they are financed by public funds. Accountability through the law of torts might then not be an undesirable objective. Sometimes serious shortcomings of service will only be uncovered by way of litigation.

As has already been pointed out, the special nature of the task of public bodies could be acknowledged by the courts on the breach-of-duty level when applying and adapting to the circumstances the reasonable standard of an ordinary skilled professional353

5. Adequate protection – alternative remedies

Alternative remedies often seem more attractive than a negligence action because they are less expensive, less time consuming and sometimes more informal. This argument can only be convincing, though, if the alternatives to a claim in negligence offer equivalent protection with regard to compensation and procedural conditions. The law of torts provides compensation for all damages which are in principle recognised as being recoverable. When alternative remedies do not match such full indemnification or are restricted to the investigation of grievances, they cannot be decisive354 One should take a closer look at the options available to plaintiffs.

a) Criminal Compensation Scheme and Local Government Ombudsman

The Criminal Injuries Compensation Scheme, referred to by Stuart-Smith LJ in W v Essex, is mainly based on a tariff system. The compensation is usually substantially lower than in negligence awards and the limitation period after the injury occurred is only two instead of three years for personal injuries in ordinary damage actions355

In cases falling short of the application of the Criminal Injuries Compensation Scheme and in some other areas of administrative misconduct the Local Government Ombudsman may recommend compensation. The payments are nevertheless also generally smaller; there is no recovery for future loss and a right to damages is not acknowledged356

b) Insurance

Apart from relying on protection by compulsory car insurance Lord Hoffmann drew in Stovin v Wise a parallel to negligent fire brigades and thought that people could protect themselves by taking out insurance against the risk of fire357 He thus deviated from a long established principle in English law that the insurability of the parties to a dispute should be irrelevant for the outcome of the case358

The question is the justification – in moral and legal terms – for the argument that the existence or possibility of insurance on the part of the plaintiff should relieve the tortfeasor from his liability. The complaint that it is not the function of public bodies to reimburse insurance companies which obtained the plaintiff’s claim by way of subrogation is not convincing. First party insurance is a precautionary, and in many cases voluntary, measure taken to cover oneself against risks at the party’s own expense. If insurance excludes a claim for damages, the tort victim is faced with the prospect of rising premiums, whereas the tortfeasor is not affected. Insurance will also not provide damages for pain and suffering. Naturally, insurers receive their premiums to take the risk of loss, but that does not mean that they should bear the loss, irrespective of whether they can get their money back from the tortfeasor. Accepting the risk of not being able to recover what they paid out is already a form of consideration for their premiums359 Moreover, the right of subrogation contributes to reducing or stabilizing the premiums360 thus benefiting a large part of the insured public. Public bodies are not prohibited from taking out third party insurance themselves, which most of them in fact have done.

c) Judicial review

A further remedy is judicial review under order 53 of the Rules of the Supreme Court. This is a public law remedy primarily intended for annulling or declaring illegal acts of public authorities. A claim for damages can be brought at the same time in such a proceeding but only if there is a private law wrong. Consequently, to establish the private law wrong the same requirements would have to be met as in an ordinary damage action, causing the same problems as in the area of liability of public bodies in negligence.

There are also a number of procedural reasons why the application for judicial review is not favourable to plaintiffs compared with a civil action. Besides the need to apply for leave, the limitation period is only three months after the decision361 Evidence is mainly given by way of affidavit which makes it more difficult to access documents in the possession of the defendant party362 Some decisions have recognised that judicial review or other statutory complaint mechanisms are not equivalent to remedies in tort363

To conclude, it is not apparent that other remedies can equal the comprehensiveness of an action in negligence. In addition, there is no reason why a plaintiff should not have multiple ways of protection, as long as he is not overcompensated364

6. Multi-disciplinary process

To single out one person as the liable tortfeasor may be considered unfair in case of the involvement of a multi-disciplinary process. Yet, it does also not seem legitimate to let the loss lie with the victim of the tortious conduct just because various parties might have taken part in the decision-making which eventually led to the damage. It is not an impossible task for the courts to disentangle responsibilities and measure the different shares of respective fault. They solve such problems whenever they have to deal with several tortfeasors or to assess contributory negligence365

7. Other concerns

As shown, the English cases often concern omissions and contain a third-party-involvement in causing the damage. The responsibility of public bodies may appear smaller, making them ‘peripheral’ parties in a causal sense366 when they ‘only’ failed to prevent harm which was directly caused by somebody or something else. Stapleton has pointed out that the authority’s joint and several liability in such situations for the entire damage would be likely to misallocate which party was primarily responsible367 However, by thoroughly analysing the issue of causation the courts could probably effectively allocate responsibility368 This approach may lead to the same result, i.e. imposition of liability only upon the primary tortfeasor, without having to refer to vague and undefined considerations of policy within the duty of care concept.

Furthermore, in exceptional circumstances liability can arise even in omission and third party cases369 It could be argued that holding manifestly innocent people in custody for several weeks, as in the Elguzouli case, is an exceptional circumstance. In that case not only the distinction between mal- and nonfeasance was unclear, but also there was no third-party involvement in causing the harm.

In addition, their statutory duties and powers provide public bodies with means of control not available to private individuals. Stovin v Wise is one example. In cases such as Hill or W v Essex the public authorities at least greatly facilitated the opportunity for third parties to cause harm to others by their failure to act properly. It can therefore equally be claimed that they are supposed to take a greater share of the responsibility, especially when personal injury is imminent or important civil rights are violated. It should in principle not be regarded as unreasonable to expect them to take at least as much care in the exercise of their functions as is expected from private individuals and enterprises.

8. Summary

The policy arguments relied on by the English courts represent the value choices those courts regarded to be in the best public interest. Many of their considerations may be as, or sometimes even more, relevant than the arguments against them. But it is only a ‘may be’. Their coherence is not evident or definite. There are counter-arguments of weight against the application of each one of them. These have not been adequately discussed by the judges denying liability, let alone been disproved. Most of them are not mentioned at all. It is not enough to simply name an objection to conclude that it is outweighed by other considerations while not taking any reasons supporting it into account370 The gravity of the defendant’s fault and the seriousness of the plaintiff’s har371 are usually disregarded, as well as the concerns of any dissenting opinions.

The courts thus failed in their decisions to comprehensively weigh the conflicting values, although such a balancing exercise is the essence of making use of policy considerations372 This substantially reduces their persuasiveness and aptness as a basis for judicial decisions. It results in a too one-sided reasoning, often dealing with possible future consequences of liability in general, but distancing itself from the individual case, in particular when an immunity of the public body is proclaimed373

On this basis, it is submitted that the policy arguments applied by the English courts possess neither separately nor in combination sufficient weight to serve as a separate and independent ground to deny a duty of care of public bodies.

III. The German approach

Although there are serious doubts about the use of policy concerns in the English judgments, these policy concerns are not far-fetched. However, the German decisions did not explicitly consider them but only approved of arguments more favourable to the plaintiffs. It is argued that this can be explained by a different general attitude towards public liability. This does not mean, however, that all of the English concerns have been ignored by German law.

As the claim for breach of official duty has a statutory foundation in § 839 BGB and Art. 34 GG there is a certain number of fixed elements the German courts have to examine. The wording of the subsidiarity clause in § 839 I 2 and of § 839 III BGB reflects that the alternative remedies concern, for example, has already been considered on the statutory level. The courts are moreover not prevented from discussing or taking into account other policy considerations. Statutory provisions are generally open to judicial interpretation which, when necessary, even allows the courts, within limits, to develop and supplement the law374 Thus, they are able to introduce value concepts or react to changing policies.

As has been shown in the second chapter, the law of public liability is an area in which the German courts have substantially made use of their interpretative powers and shaped the law. Policy considerations arise with regard to the requirement of the official duty being owed to a third party (§ 839 I 1 BGB) and to the interpretation of the subsidiarity clause (§ 839 I 2 BGB). The wording of these provisions suggests that they were introduced to limit the liability of public bodies, in addition to § 839 III BGB.

1. Duty owed to third person

The German courts are able to take into account some of the same policy factors which are highlighted by the English courts in deciding whether an official duty was owed to an individual plaintiff. One example is the prosecution service which generally owes its duty to prosecute crimes only to the community at large375 It is likely that this conclusion was reached because of the nature of the prosecutors’ activity and of the fear of an undesirable amount of legal actions against the prosecution service. Yet, the same concerns were apparently not relevant in other areas of conduct of the prosecution service or of the police, as the decisions discussed have demonstrated. If at all, the courts only opted for a reduced scope of judicial review.

Such concerns did also not prevail in other areas. Probably most astonishing was the position of the courts in the domain of state banking supervision where liability could result in vast amounts of damages. The Supreme Court held that, on the basis of the relevant statute, the state supervision of banks imposed an official duty owed to each individual owner or creditor of a deposit, thus rendering the State liable for damages376 Subsequently, the legislator intervened and added a new provision to the statute clarifying that the supervision of banks is only performed by the authorities in the general public interest377 Therefore, no official duty is owed to individuals anymore and the State is not liable. What becomes apparent is that German courts do not significantly restrict public liability by way of holding down the permitted circle of third persons. On the contrary, there has been a trend in recent years to expand the circle of third persons378

2. § 839 I 2 BGB

A plaintiff oriented interpretation is also manifest in the subsidiarity clause in § 839 I 2 BGB, the other instrument provided by statute capable of shielding public bodies from liability in negligence in many cases. The Supreme Court has more and more reduced the scope of its application379 By disregarding it in the areas of traffic and road traffic safety, and by not accepting insurance claims as an appropriate alternative form of compensation within the meaning of the provision, the courts refuse to give dominant weight to the adequate protection argument. The German road traffic case is a concrete example.

This impression is strengthened by the way § 839 I 2 BGB is applied when it is still considered relevant. One of those situations is the involvement of another tortfeasor which has given the English courts so much concern. In theory, German law is very clear. As the plaintiff can claim his damages from the primary tortfeasor, the public body is not held liable for its negligent conduct according to § 839 I 2 BGB, leaving aside any problems of causation for present purposes. The primary or joint tortfeasor is moreover not entitled to claim any contribution from the public body380 Yet, it is not obvious that the public authority will in fact escape liability. As the other claim is not regarded as another form of compensation when it is not enforceable381 and since a claim is held to be non-enforceable when the other party cannot pay and is not likely to be solvent in the near future382 the effect of the provision is limited.

It is interesting to note that the courts have developed their approach towards the areas of non-applicability of § 839 I 2 BGB and the reduced acceptance of alternative claims only by a gradual process, culminating in the 1970s and early 1980s383 Before then, several kinds of insurance claims were regarded as appropriate compensation in the sense of § 839 I 2 BGB384 Apparently, a period of expanding public liability occurred in Germany and England at the same time. However, in contrast to the English courts, the German courts did not subsequently change direction.

3. § 839 III BGB

The reference to the priority of public law remedies expressed in § 839 III BGB has also not proved to be a shield for public bodies to avoid liability. It may indicate the principle that the public bodies’ liability in tort is a last resort385 however, in most instances, public law remedies will just come too late to be able to avert the damage. The damage will already have occurred before it was possible to take any public law action, leaving § 839 III BGB without effect.

4. Reasons for the German approach

When the German courts refuse to take a restrictive view on public liability, they are supported and influenced in their general direction by the main academic authorities. For many of them the courts are still not going far enough386 This conformity is expressive of the substantive difference in viewing the role of public liability in Germany compared to English law. The distinction between public and private law, between the ‘mighty State’ and public power on the one side and the individual citizen in need of protection on the other side, is, at least in the background, an apparent feature of the German attitude towards public liability in general.

Art. 34 GG, following Art. 131 of the Weimar Constitution, introduced the prime liability of the State or its bodies instead of the individual official. It thus supplemented § 839 BGB but also changed that provision’s objective. The main purpose of Art. 34 GG is seen as relieving the plaintiff of the risk of the non-enforceability of his claim for damages and to provide him with a solvent defendant387 On this basis § 839 BGB has become an all-encompassing and effective means of protection for the citizen against tortious governmental harm388 This is deemed very important as the citizen is in special need of protection when it comes to the exercise of public power (öffentliche Gewalt) which provides the state with comprehensive and far-reaching opportunities of interfering with the rights of the individual389 The individual is often dependent on the State and his officials and has no choice on whether to approach them or on which official to deal with. Such concerns are usually voiced in relation to the State in general, mainly without distinguishing between different kinds and levels of public bodies. Public liability, through Art. 34 GG rooted in the Constitution, is thus seen as an indispensable element of the rule of law (Rechtsstaatsprinzip)390 especially with regard to the protection of the citizens’ constitutional and civil rights391 This also indicates the substantial importance attributed in Germany to the deterrent effect of liability on the conduct of public authorities392

Nevertheless, concern about a defensive approach by public officials has arisen in the context of Art. 34 GG. This article is also seen as intending to protect the individual official from the risk of personal liability for negligent conduct which could otherwise adversely affect his work and his decisiveness. This protection would also indirectly benefit the State or public authorities since their efficient functioning largely depended on the performance and willingness of their officials and public employees393 Policy considerations of the kind put forward by English courts thus appear in the German legal discussion but they are only raised for the benefit of the individual official and not extended to justify an exemption from liability of the public body itself. The latter’s liability is not believed to lead to a defensive approach by the official. English law uses this argument for officials and public bodies alike.

The same concerns about the likelihood of a defensive approach by public officials determined the original purpose of the subsidiarity clause in § 839 I 2 BGB. Created almost 100 years ago, and almost 50 years before Art. 34 GG, its purpose was also to safeguard public officials against the risk of personal liability to maintain and promote their decisiveness and the efficiency of administration in general394 Since due to Art. 34 GG liability is usually assumed by the State or public authority and the official is adequately protected, the provision of § 839 I 2 BGB is widely felt to be no longer necessary, except for the few remaining cases of personal liability of the official under § 839 BGB395 Despite introducing Art. 34 GG, the Constitutional Assembly and later the legislator left § 839 BGB unchanged. The Federal Supreme Court acknowledged already in the 1950s that the original purpose, to shield the individual official, had lost its relevance but – § 839 I 2 BGB being valid law – recognised a new or extended purpose for the provision in the financial relief of public funds396 Yet, it was not happy with the clause and later called it antiquated397 The Supreme Court then, as has already been explained, started to restrict its application, as it became convinced that the aspect of financial relief of the State alone could not justify the application of § 839 I 2 BGB398 The liability of public authorities for damages was an important instrument for the protection of the individual citizen against unlawful conduct of officials399 and compelling reasons of public welfare in favour of the subsidiarity clause were not apparent400

The legislator himself finally tried to abolish the subsidiarity clause in 1981 within an attempt to reform the law of state liability by incorporating and updating the present law in a comprehensive statute401 The act was later ruled unconstitutional by the Federal Constitutional Court due to lack of legislative competence of the Federation402 The reasons in favour of the law put forward by the Federal Ministry of Justice explicitly stated that a probable increase of public liability would be both negligible in comparison to the overall expenditure on social services and justified by the idea of compensation for wrongs committed by tortious public bodies403

It is remarkable that not even the argument of scarce public resources or their diversion from important public functions has had an effect on the stand of the German courts and academic authorities. Public resources are likely to be as strained in Germany as in England. The functions of local authorities seem as widesprea404 and their income is made up of much the same sources as the one of English local governments, also being dependent on financial allocations from the Federation and the Land within the framework of local authority fiscal equalisation405

These considerations demonstrate that the question whether public bodies themselves might be in need of protection against expanding liability is usually not given much weight in Germany. The present rules or the way they are applied are thought to be satisfactory in that respect. It can probably even be said that the State and its public bodies are regarded as less deserving of protection than the individual citizen or official.

Whether public liability is more bearable for public authorities in Germany because of a lower level of damages in comparison to English awards is difficult to assess. There is

so far no empirical research on the amount of damages awarded in the area of public liability on a comparative basis. A direct comparison may prove difficult because of different methods of calculating compensation406

5. Summary

Some of the English policy considerations, such as the alternative remedies or the defensive approach concern, have also been raised in German law, either by § 839 BGB itself or in the context of determining the purpose of the statutory provisions. Yet, in the development of the interpretation of § 839 BGB and Art. 34 GG these considerations were attributed a different and minor weight compared to the concern of individual protection, by the judiciary and the academic authorities, and they were not allowed to prevail. The body of case law of the Supreme Court to this effect, especially limiting the statutory restrictions on public liability in § 839 BGB, is assumed and often referred to by the German courts in their decisions without further discussion. This might explain why basically none of the English policy reasons were found in the selected German cases, as the Supreme Court had already laid down different priorities.

E Conclusion

The comparison of English and German cases has shown that similar problems arise in the area of public liability in negligence in the two legal orders. The number of cases portrayed is admittedly too small to be representative. But the juxtaposition of the selected cases, together with the account of the present position of the law in the two countries, indicates a certain trend with regard to the extent of public liability in England and Germany. It is now time to draw some conclusions:

The English ‘Rule of Law’ and the German Constitution both indicate that public liability, either established by ordinary or by specific rules, is an important means of control of public bodies. Against this common background, it is worth noticing that there was a period in the 1970s and early 1980s in which both English and German courts embarked on an extension of public liability. However, at the beginning of the 1990s the English courts departed from the common route and took a u-turn approach which did not occur in Germany. Moreover, the policy position of the German courts to expand liability has generally been supported by a widespread dissatisfaction in Germany with the present statutory rules in § 839 BGB, whereas in England the issue of extending public liability in negligence has always been controversial.

In England, public bodies are in theory treated like any other tortfeasor. In practice, the courts have used the issue of non-justiciability, discretion and the concept of duty of care to limit and deny the liability of public authorities in negligence. They are often motivated by a general reluctance to hold responsible an authority, which acts for the benefit or protection of society, for merely not achieving this aim in individual cases407 Notwithstanding that the general pattern of restricting liability has been more or less uniform, the House of Lords appears to use slightly different tests from case to case as to how to determine a duty of care with regard to public bodies. However, in many cases, which concern different kinds of public bodies and areas of their activities, the judges, be it in the House of Lords or the lower courts, openly agree on a number of similar policy considerations to let the public interest prevail within the fair, just and reasonable test. The whole issue of a duty of care ultimately depends on judicial views of policy408

In contrast to the common law, the German courts are faced with a statutory claim for breach of official duty against public bodies established in the German Civil Code and the Constitution, introducing an indirect but primary liability of the authority. Applying the relevant provisions of § 839 BGB and Art. 34 GG, they usually do not openly discuss policy arguments in their judgments. Nevertheless, there has not been a lack of judicial activity. The plaintiff is able to rely on a wide range of official duties owed to him which have been developed under the general public duty to act lawfully. The courts, led by the Federal Supreme Court, have by way of interpretation restricted the statutory means to limit the liability of public bodies in § 839 BGB. Non-justiciability is with few exceptions not accepted in German law. This does not mean, however, that German public bodies are without any protection against liability in negligence. Assuming the extent of public liability is greater in Germany, it has not lead to financial ruin of the public authorities. Yet, in the end the German approach is, like the English one, based on convictions deemed to be in the best public interest.

Although the two approaches have to be seen in their own context, they reveal how schemes of values and policy can influence and alter legal concepts. They also show how differently policy concerns can be perceived in different legal orders, in different circumstances and at different times; in one word how subjective they are. In weighing policy considerations judges come probably closest to exercising governmental and political functions.

Nevertheless, such considerations should only be applied in a judicial way, which means consistent with legal principles and concepts. When particular importance is attached to policy concerns in the area of public liability, a careful balance has to be struck between the countervailing interests, especially between the demands of an effective administration and the legitimate concerns of individual protection. To let the loss fall on the victim requires a careful analysis of the needs of society, especially in respect of the fact that the costs of public liability constitute only a very small proportion of public expenditure.

On this basis, the policy arguments used by the English courts are suitable neither to deny a duty of care nor to justify partial immunities irrespective of the individual case.

First, these policy arguments cannot be regarded as having been convincingly balanced. Apart from any dissenting opinions, there is little or no discussion of the counter-arguments by the judges. Secondly, they are attributed excessive weight on their face value, without having been assessed or proven. Thirdly, if the English courts want to continue to limit the liability of public bodies, there are other and better ways for the courts to control liability in the areas of breach of duty or causation.

If one may speculate about why English courts are so hesitant to impose liability on public bodies, it seems that they are uncertain as to their role in deciding the extent of public liability. Judges often emphasise that it is not the function of the courts to determine how public funds should best be spent. They think it should be left to the legislator to make such a decision. In contrast to German courts, they cannot rely on a written Constitution to justify, or at least support, their judgments. In addition, unlike Parliament in England, the German legislator has given the courts an indication as to how it views their interpretation of the provisions. The attempt to create a comprehensive statute for state liability in the 1980s, including the abolishment of the subsidiarity clause of § 839 I 2 BGB, could be seen by the courts in Germany as an endorsement of their approach. Moreover, the legislator has also acted when it thought that the courts went too far in holding authorities liable, as in the area of state banking supervision.

In the light of recent European human rights decisions and English case law it is difficult to predict how English law will develop. The current situation is uncertain. There seem to be first signals that the approach of English courts, including their assessment of policy considerations, may change again. The decision of Barrett v Enfield LBC409 in the aftermath of the Osman case of the ECHR410 acknowledged that when the focus was essentially on policy concerns, on whether it is fair, just and reasonable to impose a duty of care, this could only be decided by a judge on a full trial of the matter, rather than in interlocutory proceedings. The Court of Appeal has consequently taken the same view in Beverly Palmer v Tees Health Authorit411 and the education malpractice case of Gower v Bromley LBC412 The Barrett decision also conceded that the policy considerations so far relied on may not have equal force in all circumstances413 Whether this will lead to ‘an important shift away from an unthinking accepting of such blanket policy factors’414 remains to be seen. The English courts are not bound by the Osman decision of the ECHR, which does not dictate the outcome of such cases, but only points out the way it considers appropriate to approach them. Yet, as Barrett v Enfield LBC has shown, the decision has not been without influence either. Especially after the implementation of the Human Rights Act 1998 cases such as Elguzouli-Daf may be decided in a different manner. To deny liability in striking out actions, the courts may be tempted to emphasise the issue of proximity to deny liability415 rather than the fair, just and reasonable test. The House of Lords in the Barrett case seemed to be arguing that actions against public authorities could more properly be decided at the breach than at the duty level416 This does not mean, however, that it will be easier for plaintiffs to succeed.

No matter what direction the English courts will take, the process of European integration, the growing harmonisation of the laws of the Member States of the European Union and the influence of Community Law on national laws should in general increase the willingness of the national courts in Europe to approach their tasks on a comparative level. Looking – within their means – at the approach of neighbouring legal systems may give a stimulus to reflect critically about the own course of reasoning. They may as a result become either more convinced of the appropriateness of the present stand of ‘their’ law or receive valuable incentives for possible change. The exercise will be profitable in either case.

List of Abbreviations

AC Law Reports, Appeal Cases (Decisions of the House of Lords and the Privy Council from 1891)
AdminLR Administrative Law Reports
A-G Attorney-General
All ER All England Law Reports
ALR Australian Law Reports
Art. Artikel
BGB Bürgerliches Gesetzbuch
BGBl. Bundesgesetzblatt (Government Gazette)
BGH Bundesgerichtshof (Federal Supreme Court)
BGHZ Entscheidungen des Bundesgerichtshofs in Zivilsachen (Decisions of the Supreme Court in civil matters)
BK zGG Bonner Kommentar zum Grundgesetz
BVerfG Bundesverfassungsgericht
CA Court of Appeal
CC County Council
CFLQ Child and Family Law Quarterly
Ch. Law Reports, Chancery Division (from 1891)
Cmd. Command
Comr. Commissioner
CornellLRev Cornell Law Review
CPS Crown Prosecution Service
DC District Council
DÖV Die Öffentliche Verwaltung
DRiZ Deutsche Richterzeitung
DVBl. D Deutsches Verwaltungsblatt
EC European Community
ECHR European Court of Human Rights
EConvHR Convention for the Protection of Human Rights and Fundamental Freedoms (European Human Rights Convention)
ECR European Communities, Court of Justice, Reports
ed(s). editor(s)
edn. edition
GG Grundgesetz (Constitution)
HC High Court
HCA High Court of Australia
HL House of Lords
JAssocLTeachers Journal of the Association of Law Teachers
JR Juridical Review
JurBüro Juristisches Büro
KCLJ King’s College Law Journal
Komm zGG Kommentar zum Grundgesetz
KWG Gesetz über das Kreditwesen
Law Com Law Commission
LBC London Borough Council
LG Landgericht
LMCLQ Lloyd’s Maritime and Commercial Law Quarterly
LQR Law Quarterly Review
LR Law Reports
Ltd. Limited
MLR Modern Law Review
MünchKomm Münchener Kommentar
NHS National Health Service
NJW Neue Juristische Wochenschrift
NS Niedersachsen
NVwZ Neue Zeitschrift für Verwaltungsrecht
NVwZ-RR Neue Zeitschrift für Verwaltungsrecht-Rechtsprechungsreport
NW Nordrhein-Westfalen
OLG Oberlandesgericht (German Court of Appeal)
OJLS Oxford Journal of Legal Studies
PC Privy Council
PL Public Law
plc public limited company
PostG Gesetz über das Postwesen
RG Reichsgericht (Supreme Court of the German Reich)
RGZ Entscheidungen des Reichsgerichts in Zivilsachen
RuS Recht und Schaden
StrEG Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen
StrG Straßengesetz
StrWG Straßen-Wege-Gesetz
TS Treaty Series
UK United Kingdom
Urt. v. Urteil vom
VersR Versicherungsrecht
Vol. Volume
WLR Weekly Law Reports
ZAP-EN Zeitschrift für Anwaltspraxis – Eilnachrichten
ZIP Zeitschrift für Wirtschaftsrecht und Insolvenzpraxis
ZR Zivilrecht

Bibliography

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II. Articles

— Bagshaw, R. The Duties of Care of Emergency Service Providers, [1999] LMCLQ 71
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— Markesinis, B.S./ Deakin, S.F. The Random Element of their Lordships Infallible Judgement: An Economic and Comparative Analysis of the Tort of Negligence from Anns to Murphy, (1992) 55 MLR 619
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— Stapleton, J. Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence, (1995) 111 LQR 301
— Stapleton, J. Tort, Insurance and Ideology, (1995) 58 MLR 820
— Summers, R. Two Types of Substantive Reasons: The Core of a Theory of Common Law Justification, (1978) 63 CornellLRev 707
— Tregilgas-Davey, M. Osman v Metropolitan Police Commissioner: The Cost of Police Protectionism, (1993) 56 MLR 732
— Weir, J.A. Governmental Liability, [1989] PL 40
— Wright, J. Local Authorities, the Duty of Care and the European Convention of Human Rights, (1998) 18 OJLS 5

German Legal Literature

I. Textbooks

— Bar, C.v. Gemeineuropäisches Deliktsrecht, Vol. 1, Munich 1996
— Bar, C.v. Limitation and Mitigation in German Tort Law, in J Spier, (ed), The Limits of Liability – Keeping the Floodgates Shut, The Hague 1996, 17
— Bender, B. Staatshaftungsrecht, 3rd edn, Heidelberg 1981
— Bonner Kommentar zum Grundgesetz, Hamburg 1970
Cited: P Dagtoglou in BK zGG (1970) Art. Rn
— Bundesministerium der Justiz (ed) Zur Reform des Staatshaftungsrechts – Berichte, Modelle, Materialien, Bonn 1987
— Martens, J. Die Praxis des Verwaltungsverfahrens, Munich 1985
— Maunz, T./ Dürig, G. et al Kommentar zum Grundgesetz, Vol.III (Art.20-68), Munich 1998
Cited: H Papier in Maunz-Dürig, Komm zGG (1998), Art. Rn
— Maurer, H. Allgemeines Verwaltungsrecht, 11th edn, Munich 1997
— Mayo, U. Die Haftung des Staates im englischen Recht – unter vergleichender Berücksichtigung des deutschen Rechts, Hochstadt a.M. 1999
— Meyer, D. Strafrechtsentschädigung und Auslagenerstattung, Kommentar zum Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen (StrEG), 4th edn, Neuwied 1997
— Mosler, H. (ed) Haftung des Staates für rechtswidriges Verhalten seiner Organe, Cologne 1967
— Müller, H. Das Internationale Amtshaftungsrecht, Frankfurt a.M. 1991
— Münchener Kommentar zum Bürgerlichen Gesetzbuch, Vol. 5 (§§ 705-853), 3rd edn, Munich 1997
Cited: MünchKomm-H Papier, BGB (3rd edn, 1997) § Rn or MünchKomm-J Mertens, BGB (3rd edn, 1997) § Rn
— Mugdan, B. (ed) Die gesamten Materialien zum Bürgerlichen Gesetzbuch für das Deutsche Reich, Vol. 2, Berlin 1899
— Ossenbühl, F. Staatshaftungsrecht, 5th ed, Munich 1998
— Palandt Bürgerliches Gesetzbuch, 58th edn, München 1999
Cited: Palandt-H
— Thomas, BGB (58th edn, 1999) § Rn or Palandt-H Heinrichs, BGB (58th edn, 1999) § Rn
— Pfab, S. Staatshaftung in Deutschland, München 1996
— Rüfner, W. Basic Elements of German Law on State Liability, in J Bell/A.W. Bradley, (eds), Governmental Liability: A Comparative Study, London 1991, 249
— Soergel, H./ Siebert, W. Bürgerliches Gesetzbuch, Vol. 5/2 (§§ 823-853), 12th edn, München 1998
Cited: Soergel-H Vinke, BGB (12th edn, 1998) § Rn
— Staudinger, J. Kommentar zum Bürgerlichen Gesetzbuch, (§§ 827-853), 12th edn, Berlin 1986
Cited: Staudinger-K Schäfer, BGB (12th edn, 1986) § Rn
— Windthorst, K./ Sproll, H.D. Staatshaftungsrecht, Munich 1994
— Zeuner, A. Das Urteil in Deutschland, in Facoltà di Giurisprudenza – Universita degli Studi di Ferrara, (ed), La Sentenza in Europa, Padova 1988, 172

II. Articles

— Bettermann, K.A. Rechtsgrund und Rechtsnatur der Staatshaftung, DÖV 1954, 299
— Blankenagel, A. Die Amtspflicht gegenüber einem Dritten – Kasuistik ohne Systematik, DVBl 1981, 15
— Engelhardt, H. Neue Rechtsprechung des BGH zum Staatshaftungsrecht, NVwZ 1992, 1052
— Haschke, E. Local Government Administration in Germany, http://iecl.iuscomp.org/gla/literature/localgov.htm, 1
— Krohn, G. Zum Stand des Rechts der staatlichen Ersatzleistungen nach dem Scheitern des Staatshaftungsgesetzes, VersR 1991, 1085
— Lörler, S. Die Subsidiaritätsklausel in der Amtshaftung, JuS 1990, 544
— Schoch, F. Amtshaftung, JURA 1988, 585

Footnotes

1 ibid 345, 351-353.

2 [1989] AC 53.

3 cf B Markesinis and S Deakin, Tort Law (4th edn, 1999) 148.

4 Rome, 4 November 1950; TS 71 (1953); Cmd 8969.

5 Osman v UK (1999) 11 Admin LR 200 (ECHR) 201, 239-240.

6 cf Barrett v Enfield LBC [1999] 3 All ER 193, 199.

7 ibid 198-200; Beverly Palmer v Tees Health Authority The Times, 6th July 1999 (CA, Pill LJ).

8 Lord Hoffmann, ‘Human Rights and the House of Lords’ (1999) 62 MLR 159, 164; cf B Markesinis and S Deakin, Tort Law (4th edn, 1999) 372.

9 Barrett v Enfield LBC [1999] 3 All ER 193 (HL).

10 Murphy v Brentwood LBC [1991] 1 AC 398 (HL).

11 Stovin v Wise [1996] AC 923 (HL).

12 X (Minors) v Bedfordshire CC [1995] 2 AC 633 (HL); Barrett v Enfield LBC [1998] QB 367; Phelps v Hillingdon LBC [1999] 1 All ER 421 (CA); Beverly Palmer v Tees Health Authority The Times, 6th July 1999 (CA).

13 Capital and Counties plc v Hampshire CC [1997] QB 1004.

14 Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335; Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 All ER 215 (CA).

15 eg Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL); Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335; Stovin v Wise [1996] AC 923 (HL).

16 cf J Bell and AW Bradley, Governmental Liability: A Comparative Study (1991) 15.

17 Law Commission, Administrative Law: Judicial Review and Statutory Appeals (Law Com Consultation Paper No 126, 1993) para 1.5.

18 [1995] 2 AC 633 (HL).

19 B Markesinis, ‘Reading through a Foreign Judgment’ in P Cane and J Stapleton, (eds), The Law of Obligations – Essays in Celebration of John Fleming (1998) 261, 264.

20 cf joined cases C-60/90 and C-9/90 Francovich and Bonifaci v Italian Republic [1991] ECR I-6911.

21 J Bell and AW Bradley, Governmental Liability: A Comparative Study (1991) 1-2.

22 cf Rylands v Fletcher (1868) LR 3 HL 330, 339-340, 341.

23 cf Stovin v Wise [1996] AC 923 (HL) 935; P Cane, An Introduction to Administrative Law (3rd edn, 1996) 233-234; P Craig, Administrative Law (3rd edn, 1994) 116-117.

24 J Bell and AW Bradley, Governmental Liability: A Comparative Study (1991) 4.

25 ibid 4; for the UK: J Clerk and WHB Lindsell, Clerk & Lindsell on Torts (17th edn, 1995) 14.

26 C v Bar, Gemeineuropäisches Deliktsrecht (1st vol, 1996) 302-303.

27 J Bell, Policy Arguments in Judicial Decisions (1983) 23; P Cane, An Introduction to Administrative Law (3rd edn, 1996) 116.

28 J Bell, ibid 24.

29 WVH Rogers, Winfield & Jolowicz on Tort (15th edn, 1998) 90; KM Stanton, The Modern Law of Tort (1994) 27.

30 J Bell, ‘The Law of England and Wales’ in J Bell and AW Bradley, (eds), Governmental Liability: A Comparative Study (1991) 17.

31 P Cane, An Introduction to Administrative Law (3rd edn, 1996) 19; G Eörsi, ‘Private and Governmental Liability for the Torts of Employees and Organs’ in A Tunc (ed), Torts (Vol XI, International Encyclopedia of Comparative Law, 1975) 4-176.

32 cf AV Dicey and ECS Wade , An Introduction to the Study of the Law of the Constitution (10th edn, 1959) 193, 202-203.

33 Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL 93, 122, 128; B Markesinis and S Deakin, Tort Law (4th edn, 1999) 354.

34 cf S Arrowsmith, Civil Liability and Public Authorities (1992) 137.

35 WVH Rogers, Winfield & Jolowicz on Tort (15th edn, 1998) 143; P Craig, Administrative Law (3rd edn, 1994) 629-630; cf Lonrho plc v Tebbit [1991] 4 All ER 973 (CA) 978, 980.

36 W Wade and CF Forsyth, Administrative Law (7th edn, 1994) 763; H Street, ‘Liability of the State for Illegal Conduct of its Organs – Great Britain’ in H Mosler (ed), Haftung des Staates für rechtswidriges Verhalten seiner Organe (1967) 229, 232.

37 X (Minors) v Bedfordshire CC [1995] 2 AC 633 (HL) 739-740; P Cane, ‘Suing Public Authorities in Tort’ (1996) 112 LQR 13, 20.

38 WVH Rogers, ‘Keeping the Floodgates shut: ‘Mitigation’ and ‘Limitation’ of Tort Liability in the English Common Law’, in J Spier, (ed), The Limits of Liability – Keeping the Floodgates Shut (1996) 75, 82.

39 [1970] AC 1004 (HL).

40 ibid 1005, 1057, 1071.

41 [1932] AC 562 (HL) 580.

42 [1970] AC 1004 (HL) 1011.

43 [1972] 1 QB 373.

44 [1978] AC 728 (HL).

45 ibid 759 (Lord Wilberforce, classifying it as property damage).

46 ibid 751.

47 ibid 751-752

48 cf Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520 (HL).

49 JF Clerk and WHB Lindsell, Clerk & Lindsell on Torts (17th edn, 1995) 226.

50 eg Yuen Kun Yeu v A-G of Hong Kong [1988] AC 175 (PC); Rowling v Takaro Properties [1988] AC 473 (PC); D & F Estates v Church Comrs for England [1989] AC 177 (HL).

51 [1990] 1 AC 398.

52 Sutherland Shire Council v Heyman (1985) 60 ALR 1 (HCA) 43-44 (Brennan J); accepted in Caparo Industries plc v Dickman [1990] 2 AC 605 (HL).

53 cf above 16-17; S Arrowsmith, Civil Liability and Public Authorities (1992) 183.

54 eg Governors of the Peabody Foundation Fund v Sir Lindsay Parkinson and Co Ltd [1985] AC 210 (HL) 239-241; Yuen Ken Yeu v Attorney General of Hong Kong [1988] AC 175 (PC) 190-194; Rowling v Takaro Properties [1988] AC 473, (PC) 501.

55 [1990] 2 AC 605, 617-618 (Lord Bridge).

56 [1996] 1 AC 211.

57 cf Murphy v Brentwood DC [1990] 1 AC 398 (HL) 487 (Lord Oliver).

58 Sutherland Shire Council v Heyman (1985) 60 ALR 1 (HCA) 55-56 (Deane J).

59 Hedley Byrne v Heller & Partners [1964] AC 465 (HL) 530 (Lord Devlin).

60 cf ibid 465.

61 Mobil Oil Hong Kong Ltd v Hong Kong Untitled Dockyards Ltd [1991] 1 Lloyd´s Rep 309 (PC) 368; Caparo Industries v Dickman [1990] 2 AC 605 (HL) 632.

62 B Markesinis and S Deakin, ‘The Random Element of their Lordships’ Infallible Judgment: An Economic and Comparative Analysis of the Tort of Negligence from Anns to Murphy’ (1992) 55 MLR 619, 642.

63 cf Mulcahy v Ministry of Defense [1996] QB 732, 749 (Neill LJ); JF Clerk and WHB Lindsell, Clerk & Lindsell on Torts (17th edn, 1995) 229.

64 RFV Heuston and RA Buckley, Salmond & Heuston on the Law of Torts (21st edn, 1996) 203-204; eg Barrett v Ministry of Defence [1995] 3 All ER 87 (CA) 95 (Beldam LJ).

65 cf Davis v Radcliffe [1990] 1 WLR 821 (HL) 826.

66 Caparo Industries v Dickman [1990] 2 AC 605 (HL) 633 (Lord Oliver: ‘facets of the same thing’).

67 ibid 618.

68 West Wiltshire DC v Garland [1995] Ch. 297 (CA) 311; WVH Rogers, Winfield &Jolowicz on Tort (15th edn, 1998) 111.

69 cf B Markesinis and S Deakin, Tort Law (4th edn, 1999) 358.

70 X (Minors) v Bedfordshire CC [1995] 2 AC 633 (HL) 731.

71 Doe dem. Murray, Lord Bishop of Rochester v Bridges (1854) 1 B & Ad 847, 859; P Craig, Administrative Law (3rd edn, 1994) 633.

72 cf Sutherland Shire Council v Heyman (1985) 60 ALR 1 (HCA) 26 (Mason J); S Arrowsmith, Civil Liability and Public Authorities (1992), 186.

73 (1866) LR 1 HL 93.

74 cf X (Minors) v Bedfordshire CC [1995] 2 AC 633 (HL) 735; P Craig, Administrative Law (3rd edn, 1994) 619.

75 X (Minors) v Bedfordshire CC [1995] 2 AC 633 (HL) 734-735; Dorset Yacht Co Ltd v Home Office [1970] AC 1004 (HL) 1030.

76 cf M Andenas and D Fairgrieve, ‘Sufficiently Serious? Judicial Restraint In Tortious Liability Of Public Authorities And The European Influence’ in M Andenas (ed), English Public Law And The Common Law of Europe (1998) 285, 309.

77 Rowling v Takaro Properties Ltd [1988] AC 473 (PC) 501.

78 [1978] AC 728 (HL) 755.

79 [1996] AC 923 (HL) 951 (Lord Hoffmann).

80 [1999] 3 All ER 193 (HL) 220-222 (Lord Hutton).

81 [1995] 2 AC 633 (HL) 740.

82 X (Minors) v Bedfordshiire CC [1995] 2 AC 633 (HL) 740.

83 [1996] AC (HL) 923.

84 ibid 953.

85 ibid.

86 [1999] 3 All ER 193 (HL).

87 ibid 211, 225.

88 cf ibid 211, 222.

89 WVH Rogers, Winfield & Jolowicz on Tort (15th edn, 1998) 117.

90 Smith v Littlewoods Organisation [1987] AC 241 (HL) 271.

91 RFV Heuston and RA Buckley, Salmond & Heuston on the Law of Torts (21st edn, 1996) 219.

92 cf Stovin v Wise [1996] AC 923 (HL) 943-944, 953-954 (Lord Hoffmann).

93 B Markesinis, ‘Negligence, Nuisance and Affirmative Duties of Action’ (1989) 105 LQR 104.

94 Sutherland Shire Council v Heyman (1985) 60 ALR 1 (HCA) 28-29 (Mason J); cf R Bagshaw, ‘The Duties of Care of Emergency Service Providers’ [1999] LMCLQ 71, 85; eg a school’s responsibility to safeguard its pupils.

95 Capital and Counties plc v Hamphire CC [1997] QB 1004 for fire brigades.

96 cf East Suffolk Rivers Catchment Board v Kent [1941] AC 74 (HL) 102; R Bagshaw, ‘The duties of care of emergency service providers’ [1999] LMCLQ 71, 72 .

97 Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL) 270; RFV Heuston and RA Buckley, Salmond & Heuston on the Law of Torts (21st edn, 1996) 239.

98 cf [1970] AC 1004 (HL).

99 cf Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL) 271, 279.

100 P Craig, Administrative Law, (3rd edn, 1994) 619.

101 cf Stovin v Wise [1996] AC 923 (HL) 953.

102 cf P Cane, Introduction to Administrative Law (3rd edn, 1996) 245.

103 X (Minors) v Bedfordshire CC [1995] 2 AC 633 (HL) 731.

104 cf ibid 731-732.

105 C Lewis, Judicial Remedies in Public Law (1992) 378.

106 Governors of the Peabody Foundation Fund v Sir Lindsay Parkinson and Co Ltd [1985] AC 210 (HL) 242, 245; Murphy v Brentwood DC [1990] 1 AC 398 (HL) 408, 414.

107 cf Stovin v Wise [1996] AC 923 (HL) 937; WVH Rogers, ‘Keeping the Floodgates Shut: ‘Mitigation’ and ‘Limitation’ of Tort Liability in the English Common Law’ in J Spier, (ed), The Limits of Liability – Keeping the Floodgates Shut (1996) 75, 83.

108 cf Hedley Byrne and Co Ltd v Heller and Partners Ltd [1964] AC 465 (HL); Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 (HL); White v Jones [1995] 2 AC 207 (HL).

109 JF Clerk and WHB Lindsell, Clerk & Lindsell on Torts (17th edn, 1995) 329.

110 Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL) 59; Barrett v Enfield LBC [1999] 3 All ER 193 (HL) 212.

111 Elgozouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335, 349-350 (Steyn LJ) – CPS; Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL) – police; X (Minors) v Bedfordshire CC [1995] 2 AC 633 (HL) – social services.

112 cf above 16.

113 cf Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (HC) 586 (McNair J).

114 P Cane, Tort Law and Economic Interets (2nd edn, 1996) 244; B Markesinis and S Deakin, Tort Law (4th edn, 1999) 163

115 Barrett v Enfield LBC [1999] 3 All ER 193 (HL) 229.

116 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd, The Wagon Mound[1961] AC 388 (PC).

117 cf above 26.

118 Translation of § 823 taken from B Markesinis,The German Law of Obligations – Volume II The Law of Torts: A Comparative Introduction (3rd edn, 1997) 12.

119 cf Palandt-H Thomas, BGB (58th edn, 1999) § 823 Rn 35.

120 ibid § 823 Rn 58.

121 B Markesinis, The German Law of Obligations – Volume II The Law of Torts: A Comparative Introduction (3rd edn, 1997) 75; MünchKomm-H Mertens, BGB (3rd edn, 1997) § 823 Rn 204.

122 C v Bar, ‘Limitation and Mitigation in German Tort Law’ in J Spier (ed), The Limits of Liability – Keeping the Floodgates Shut (1996) 17, 22.

123 B Markesinis, The German Law of Obligations – Volume II The Law of Torts: A Comparative Introduction (3rd edn, 1997) 75.

124 BGH ZIP 1991, 1597, 1598; MünchKomm-H Mertens, BGB (3rd edn, 1997) § 823 Rn 185.

125 one exception in BGH NJW 1996, 3208, 3209.

126 W Rüfner, ‘Basic Elements of German Law on State Liability’ in J Bell and AW Bradley (eds), Governmental Liability: A Comparative Study (1991) 249, 251-252.

127 J Bell and AW Bradley, ‘Governmental Liability: A Preliminary Assessment’ in Bell and Bradley, (eds), Governmental Liability: A Comparative Study (1991) 1, 3.

128 eg compensation for expropriation (Enteignung ), sacrifice or denial damage (Aufopferung) or claims to remedial action (Folgenbeseitigungsanprüche).

129 K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 144; S Pfab, Staatshaftung in Deutschland (1996) 32.

130 K Windthorst and HD Sproll, ibid 53.

131 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 3-4.

132 cf C v Bar, Gemeineuropäisches Deliktsrecht (Vol 1, 1997) 303.

133 for the translation cf B Markesinis, The German Law of Obligations – Volume II The Law of Torts: A Compative Introduction (3rd edn, 1997) 14-15.

134 W Rüfner, ‘Basic Elements of German Law on State Liability’ in J Bell and A W Bradley, Governmental Liability: A Comparative Study (1991) 249, 250.

135 for the translation cf B Markesinis, The German Law of Obligations – Volume II The Law of Torts: A Comparative Introduction (3rd edn, 1997) 903.

136 BGHZ 4, 10, 45-46; B Bender, Staatshaftungsrecht (3nd edn, 1981) Rn 70.

137 cf BGHZ 34, 99, 109-110; F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 12.

138 BGHZ 4, 10, 46.

139 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 10; G Krohn, ‘Zum Stand des Rechts der staatlichen Ersatzleistungen nach dem Scheitern des Staatshaftungsgesetzes’ VersR 1991, 1085, 1085.

140 BGH DRiZ 1964, 197; Palandt-H Thomas, BGB (58th edn, 1999) § 839 Rn 26, 85; but cf BGH NJW 1996, 3208, 3209.

141 K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 62.

142 cf BGHZ 85, 393, 395-396; OLG Köln VersR 1990, 898, 899.

143 eg §§ 11ff PostG.

144 K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 67.

145 cf F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 14-25.

146 cf BGHZ 60, 54, 56; BGH NJW 1981, 2120, 2121; eg § 9a I StrWG NW or § 10 II NS StrG.

147 BGH NVwZ 1992, 92, 93; H Müller, Das internationale Amtshaftungsrecht (1991) 12; P Dagtoglou in BKzGG (1970) Art.34 Rn 86.

148 cf BGH NJW 1992, 972; K Windthorst and HD Sproll, Amtshaftungsrecht (1994) 76.

149 cf BGHZ 60, 54, 56; eg the Leistungsverwaltung.

150 MünchKomm-H Papier, BGB (3rd edn, 1997) § 839 Rn 146.

151 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 27.

152 OLG Karlsruhe NJW 1994, 2033, 2034; cf Soergel-H Vinke, BGB (12th edn, 1998) § 839 Rn 56, 71.

153 BGHZ 69, 128, 132-133; OLG Köln NJW 1976, 295.

154 BGHZ 108, 230, 232; 42, 176, 179; H Papier in Maunz-Dürig, Komm zGG (1998) Art.34 Rn 131.

155 cf BGHZ 11, 181, 187; OLG Köln NJW 1970, 1322, 1324.

156 MünchKomm-H Papier, BGB (3rd edn, 1997) § 839 Rn 146; K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 80.

157 MünchKomm-H Papier, ibid § 839 Rn 189.

158 K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 83.

159 cf H Papier in Maunz-Dürig, Komm zGG (1998) Art.34 Rn 21.

160 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 42.

161 K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 84.

162 W Rüfner, ‘Basic Elements of German Law on State Liability’ in J Bell and AW Bradley, (eds), Governmental Liability: A Comparative Study (1991) 249, 254.

163 P Dagtoglou in BK zGG (1970) Art.34 Rn 116 ff; Soergel-H Vinke, BGB (12th edn, 1998) § 839 Rn 136-146.

164 BGHZ 16, 111, 113; cf BGHZ 60, 112, 117.

165 cf H Engelhardt, ‘Neue Rechtsprechung des BGH zum Staatshaftungsrecht’, NVwZ 1992, 1052ff; MünchKomm-H Papier, BGB (3rd edn, 1997) § 839 Rn 191ff.

166 BGHZ 74, 144, 156; 75, 120, 124; 118, 263, 271.

167 H Maurer, Allgemeines Verwaltungsrecht (11th edn, 1997) 121-122.

168 cf X (Minors) v Bedfordshire CC [1995] 2 AC 633 (HL) 736; Stovin v Wise [1996] AC 923 (HL) 953.

169 BGHZ 4, 302, 313; RGZ 162, 273.

170 BGHZ 74, 144, 156; 75, 120, 124; Palandt-H Heinrichs, BGB (58th edn, 1999) § 839 Rn 36.

171 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 46.

172 BGHZ 118, 263, 271; BGH NVwZ 1994, 405, 405-406.

173 BGHZ 18, 366, 368; 55, 261, 266; BGH NJW 1973, 894.

174 BGHZ 30, 19, 26; BGH VersR 1992, 1354; BGH NVwZ 1994, 405.

175 BGH NVwZ 1986, 245, 246; BGH NJW 1963, 644, 645.

176 BGH NJW 1992, 1230, 1231; NJW 1994, 2087, 2090.

177 BGH NJW 1992, 1310.

178 cf BGH NJW 1993, 2612, 2613; K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 87, 97.

179 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 57.

180 BGHZ 65, 196, 198; 74, 144, 146.

181 cf above 38.

182 BGHZ 90, 310, 312; F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 58.

183 F Schoch, ‘Amtshaftung’ JURA 1988, 585, 590.

184 BGH NJW 1992, 1230, 1231; MünchKomm-H Papier, BGB (3rd edn, 1997) § 839 Rn 232.

185 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 58, 60; K Windthorst and HD Sproll, Staats-haftungsrecht (1994) 93.

186 cf also BGH NJW 1989, 99; J Martens, Die Praxis des Verwaltungsverfahrens (1985), 44ff.

187 BGHZ 69, 128, 138; BGHZ 78, 274, 279.

188 cf above 27 and WVH Rogers, ‘Keeping the Floodgates Shut: ‘Mitigation’ and ‘Limitation’ of Tort Liability in the English Common Law’ in J Spier (ed), The Limits of Liability – Keeping the Floodgates Shut (1996) 75, 83.

189 cf above 29, 33-34.

190 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 59.

191 cf P Dagtoglou in BK zGG (1970) Art.34 Rn 158ff.

192 cf above 37.

193 MünchKomm-H Papier, BGB (3rd edn, 1997) §839 Rn 279, 284; B Bender, Staatshaftungsrecht (3rd edn, 1981) Rn 333, 334.

194 W Rüfner, ‘Basic Elements of German Law on State Liability’ in J Bell and A W Bradley, (eds), Governmental Liability: A Comparative Study (1991) 249, 257.

195 H Müller, Das internationale Amtshaftungsrecht (1991) 18.

196 RGZ 100, 102, 102-103; F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 62.

197 cf BGHZ 7, 199, 204.

198 Palandt-H Heinrichs, BGB (57th edn, 1998) vor § 249Rn 58-59.

199 BGHZ 96, 157, 171.

200 cf BGHZ 36, 144, 154; but note OLG Oldenburg VersR 1991, 306, 307.

201 cf BGH VersR 1983, 1031, 1033; VersR 1984, 333, 335.

202 B Markesinis, The German Law of Obligations – Volume II The Law of Torts: A Comparative Introduction (3rd edn, 1997) 903.

203 cf above 49; OLG Oldenburg NVwZ-RR 1993, 593; K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 112.

204 cf BGHZ 34, 99, 104-105; BGH NJW 1993, 1799, 1800; Palandt-H Heinrichs, BGB (58th edn, 1999)
§ 839 Rn 79.

205 BGHZ ibid; W Rüfner, ‘Basic elements of German Law on State Liability’ in J Bell and AW Bradley, Governmental Liability: A Comparative Study (1991) 258.

206 BGHZ 34, 99, 105; F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 11, 110.

207 cf BGHZ 78, 274, 279-280.

208 MünchKomm-H Papier, BGB (3rd edn, 1997) § 839 Rn 332, 334-335.

209 B Markesinis, The German Law of Obligation – Volume II The Law of Torts: A Comparative Introduction (3rd edn, 1997) 904.

210 MünchKomm-H Papier, BGB (3rd edn, 1997) § 839 Rn 300.

211 cf above 33.

212 cf LG Bielefeld ZAP-EN 1996 Nr. 700; Staudinger-K Schäfer, BGB (12th edn, 1986) § 839 Rn 385.

213 cf below Chapter D, 108-109.

214 cf BGHZ 13, 88, 104; H Müller, Das internationale Amtshaftungsrecht (1991) 20.

215 BGH NJW 1993, 1647.

216 BGHZ 68, 217; F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 80.

217 K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 122.

218 BGH NJW 1992, 2476, 2477; NJW 1993, 2612, 2613.

219 cf BGHZ 68, 217, 220-222; BGHZ 123, 102, 104.

220 then § 839 I 2 applies, cf BGHZ 85, 225, 228f. G Krohn, ‘Zum Stand des Rechts der staatlichen Ersatzleistungen nach dem Scheitern des Staatshaftungsgesetzes’ VersR 1991, 1085, 1089.

221 BGHZ 75, 134, 138; BGH NJW 1992, 2476; NJW 1993, 2612.

222 BGH NJW 1993, 2612; S Lörler, ‘Die Subsidiaritätsklausel in der Amtshaftung’ JuS 1990, 544, 547.

223 cf BGHZ 91, 48, 54.

224 cf BGH NJW 1974, 1767; NJW 1974, 1769, 1770; K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 125-126.

225 BGHZ 70, 7ff; BGHZ 79, 26; NJW 1981, 626; NJW 1983, 1668.

226 cf BGHZ 91, 48, 54.

227 G Krohn, ‘Zum Stand des Rechts der staatlichen Ersatzleistungen nach dem Scheitern des Staatshaftungsgesetzes’ VersR 1991, 1085, 1088.

228 ibid; F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 83.

229 In case of private insurance according to § 67 of the Insurance Contracts Act , in case of public insurance according to § 116 of the Code of Social Law, Part X.

230 cf BGHZ 70, 7, 11; 79, 26, 35; G Krohn, ‘Zum Stand des Rechts der staatlichen Ersatzleistungen nach dem Scheitern des Staatshaftungsgesetzes’ VersR 1991, 1085, 1088.

231 Soergel-H Vinke, BGB (12th edn, 1998) § 839 Rn 213.

232 K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 126.

233 cf S Lörler, ‘Die Subsidiaritätsklausel in der Amtshaftung’ JuS 1990, 544, 546.

234 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 (HL) 576-577; Davie v New Merton Board Mills Ltd [1959] AC 604 (HL) 627 (Viscount Simmonds).

235 cf J Stapleton, ‘Tort Insurance and Ideology’ (1995) 58 MLR 820, 824.

236 cf Stovin v Wise [1996] AC 923 (HL) 955 (Lord Hoffmann).

237 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 85; Soergel-H Vinke, BGB (12th edn, 1998) § 839 Rn 218.

238 BGHZ 2, 209, 218; BGH NVwZ 1993, 1228, 1229; P Dagtoglou in BK zGG (1970) Art. 34 Rn 285, 287.

239 BGH NJW 1993, 1647; BGHZ 78, 274, 279.

240 cf KA Bettermann, ‘Rechtsgrund und Rechtsnatur der Staatshaftung’ DÖV 1954, 299, 304; Soergel-H Vinke, BGB (12th edn, 1998) § 839 Rn 229.

241 vgl. BGHZ 98, 85, 91f; H Maurer, Allgemeines Verwaltungsrecht (11th edn, 1997) 633.

242 K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 131; U Mayo, Die Haftung des Staates im englischen Recht (1999) 191.

243 cf BGH NJW 1991, 1168; F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 92-93.

244 cf BGH NJW 1978, 1522, 1523; BGH VersR 1984, 947; G Eörsi, ‘Private and Governmental Liability for the Torts of Employees and Organs’ in A Tunc, (ed), Torts (Vol XI, International Encyclopedia of Comparative Law, 1975) 4-219; opposed by BGH NJW 1986, 1924

245 U Mayo, Die Haftung des Staates im englischen Recht (1999) 191.

246 BGHZ 68, 142, 151; BGH NJW 1987, 2664, 2666; H Engelhardt, ‘Neue Rechtsprechung des BGH zum Staatshaftungsrecht’ NVwZ 1989, 927, 932.

247 F Ossenbühl, Staatshaftungsrecht (5th edn, 1998), 89.

248 BGH NJW 1970, 750; BGH NVwZ 1992, 298; K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 140.

249 cf P Cane, An Introduction to Administrative Law (3rd edn, 1996) 19.

250 amended by the Civil Procedure Rules 1999.

251 A Zeuner, ‘Das Urteil in Deutschland’, in Facoltà di Giurisprudenza – Universita degli Studi di Ferrara, (ed), La Sentenza in Europa (1988), 172, 175.

252 B Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis (1997) 211.

253 A Zeuner, ‘Das Urteil in Deutschland’, in Facoltà di Giurisprudenza – Universita degli Studi di Ferrara (ed), La Sentenza in Europa (1988) 172, 176.

254 cf B Markesinis, The German Law of Obligations Volume II The Law of Torts: A Comparative Introduction (3rd edn, 1997) 10.

255 [1989] 1 AC 53 (HL).

256 Urt. v. 30.4.1953 – III ZR 204/52.

257 Hill v Chief Constable of West Yorkshire Police [1989] AC 53 (HL) 57-64.

258 ibid 62.

259 ibid 63.

260 ibid 63.

261 ibid 64.

262 ibid 64-65.

263 ibid 65.

264 BGH LM § 839 [fg] LM Nr. 5, 644-645.

265 cf Osman v Ferguson [1993] 4 All ER 344 (CA); Beverly Palmer v Tees Health Authority The Times, 6th July 1999 (CA).

266 cf BGH NJW 1996 2373, 2373; LG Landshut RuS 1994, 454, 455.

267 [1995] QB 335.

268 BGH, Urt. v. 16.10.1997 – III ZR 23/96.

269 cf [1990] 2 AC 605 (HL) 617-618.

270 [1995] QB 335, 349.

271 [1989] 1 AC 53f (HL).

272 [1995] QB 335, 349.

273 ibid 342-350.

274 ibid 348.

275 ibid 349.

276 ibid 350.

277 ibid 350-353.

278 ibid 352.

279 BGH NJW 1998, 751, 752-753.

280 cf BGH NJW 1979, 2097, 2098.

281 cf above 47-48.

282 cf BGH NJW 1989, 96, 97.

283 [1996] AC 923.

284 Urt. v. 10.07.1980-III ZR 58/79.

285 ibid 942-958.

286 cf above 31.

287 ibid 957.

288 ibid 957-958.

289 ibid 958.

290 ibid.

291 ibid.

292 ibid 952.

293 ibid 939-941.

294 ibid 940-941.

295 BGH NJW 1980, 2194-2196.

296 ibid 2195.

297 ibid 2195; cf above 55.

298 ibid 2196.

299 cf BGH NJW 1953, 1865.

300 [1998] 3 WLR 534 (CA).

301 Urt. v. 15.07.1992-11 U 52/92.

302 [1992] 1 AC 310 (HL).

303 [1995] 2 AC 633 (HL) 749-751 (Lord Browne-Wilkinson).

304 W v Essex CC [1998] 3 WLR 534 (CA) 554-555.

305 ibid 563-564.

306 ibid 548-549.

307 W v Essex CC [1998] 3 WLR 534 (CA) 537-552.

308 ibid 549.

309 ibid 548.

310 ibid 548-549.

311 ibid 548.

312 ibid 549.

313 ibid 552-561.

314 ibid 555, 560.

315 ibid 556.

316 ibid 557-558.

317 OLG Hamm VersR 1994, 677, 678-679.

318 ibid 678.

319 ibid 679.

320 cf Hill v Chief Constable of West Yorkshire Police, above 65.

321 cf Stovin v Wise, above 77.

322 cf W v Essex, above 84; X (Minors) v Bedfordshire CC [1995] 2 AC 633 (HL) 750 (Lord Browne-Wilkinson).

323 cf above 72 and 84.

324 cf B Markesinis and S Deakin, Tort Law (4th edn, 1999) 38, 41.

325 [1995] 2 AC 633 (HL) 749.

326 cf Spring v Guardian Assurance plc [1995] 2 AC 296 (HL) 326.

327 eg ‘may lead’, ‘might be expected to’ in Hill v Chief Constable of West Yorkshire Police [1989] AC 53, 63 (Lord Keith).

328 cf B Markesinis and S Deakin, Tort Law (4th edn, 1999) 97.

329 D Brodie, ‘Public Authorities and the Duty of Care’ [1996] JR 127, 140.

330 cf B Markesinis and S Deakin, Tort Law (4th edn, 1999) 36.

331 [1989] 1 AC 53, 63.

332 [1978] AC 728 (HL).

333 [1996] AC 923, 958.

334 [1970] AC 1004, 1033.

335 cf T Weir, ‘Governmental Liability’ [1989] PL 40, 60.

336 W Wade and CF Forsyth, Administrative Law (7th edn, 1994) 128-129.

337 T Weir, ‘Governmental Liability’ [1989] PL 40, 61.

338 ibid 61.

339 ibid.

340 B Markesinis and S Deakin, Tort Law (4th edn, 1999) 308.

341 cf J Stapleton, ‘Duty of Care: Peripheral parties and alternative opportunities for deterrence’ (1995) 111 LQR 301, 313.

342 cf findings of the Oxford Socio-Legal Studies Group in B Markesinis and S Deakin, Tort Law (4th edn, 1999) 65.

343 B Markesinis and S Deakin, Tort Law (4th edn, 1999) 22.

344 Yuen Kun Yeu v A-G of Hong Kong [1988] AC 175 (PC).

345 Murphy v Brentwood DC [1991] AC 398 (HL).

346 cf T Weir, ‘Governmental Liability’ [1989] PL 40, 57.

347 J Wright, ‘Local Authorities, the Duty of Care and the European Convention of Human Rights’ (1998) 18 OJLS 5, 11.

348 R Bagshaw, ‘The Duties of Care of Emergency Service Providers’ [1999] LMCLQ 71, 87.

349 cf above 36; Bolam v Friern Hospital [1957] 1 WLR 582 (HC) 583.

350 cf Barrett v Enfield LBC [1999] 3 All ER 193 (HL) 230; Capital Counties plc v Hampshire CC [1997] QB 1004, 1043; P Craig and D Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ [1999] PL (forthcoming), ( page 10-11 of transcript provided by authors).

351 [1996] AC 923 (HL) 958.

352 M Tregilgas-Davey, ‘Osman v Metropolitan Police Comr: The Cost of Police Protectionism, (1993) 56 MLR 732, 734.

353 J Wright, ‘Local Authorities, the Duty of Care and the European Convention of Human Rights’ (1998) 18 OJLS 5, 10; P Craig and D Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ [1999] PL (forthcoming), (page 10 of the transcript).

354 J Stapleton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 LQR 301, 320.

355 B Markesinis and S Deakin , Tort Law (4th edn, 1999) 49-50; cf P Cane, Atiyah’s Accidents, Compensation and the Law (6th edn, 1999) 266-269.

356 P Craig and D Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ [1999] PL (forthcoming), (page 12 of the transcript).

357 [1996] AC 923 (HL) 955.

358 cf above 56; J Stapleton, ‘Tort, Insurance and Ideology’, [1995] 58 MLR 820, 833.

359 cf J Stapleton, ibid 833 FN 64.

360 B Markesinis and S Deakin, Tort Law (4th edn, 1999) 120.

361 WVH Rogers, Winfield & Jolowicz on Tort (15th edn, 1998) 153; M Brazier, Street on Torts (10th edn, 1997) 184-186.

362 J Bell and A Bradley, Governmental Liability: A Comparative Study (1991) 38.

363 cf West Wiltshire DC v Garland [1995] 2 WLR 439 (CA) 447; J Stapleton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 LQR 301, 320.

364 cf Barrett v Enfield LBC [1999] 3 All ER 193 (HL) 228 ; J Stapleton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 LQR 301, 321.

365 K Oliphant, ‘Local Authority Liability for Acts of Children in foster care’ [1998] CFLQ 303, 306.

366 J Stapleton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 LQR 301, 312.

367 ibid 312.

368 B Markesinis and S Deakin, Tort Law (4th edn, 1999) 142.

369 cf above 32-33.

370 cf eg W v Essex CC [1998] 3 WLR 534 (CA) 549 (Stuart-Smith LJ).

371 cf Osman v UK (1999) 11 Admin LR 200 (ECHR).

372 J Bell, Policy Arguments in Judicial Decisions (1983) 23; cf R Summers, ‘Two Types of Substantive Reasons: The Core of a Theory of Common Law Justification’ (1978) 63 CornellLRev 707, 716-725.

373 cf Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL); Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335.

374 cf BVerfG NJW 1979, 305, 306.

375 RGZ 154, 266, 268; BGH NJW 1996, 2373; OLG Düsseldorf NJW 1996, 530.

376 BGHZ 74, 144, 147 ff; 75, 120, 122; cf in contrast Yuen Kun Yeu v A-G of Hong Kong [1988] AC 175 (PC).

377 § 6 III KWG (1984 BGBl. I 1693) .

378 cf A Blankenagel, ‘Die Amtspflicht gegenüber einem Dritten’ DVBl 1981, 15, 17; cf Soergel-H Vinke, BGB (12th edn, 1998) § 839 Rn 20-21.

379 cf above 54-56.

380 BGHZ 28, 297, 300-301; 37, 375, 380; 61, 351, 356f.

381 BGHZ 2, 209, 218; NVwZ 1993, 1228, 1229.

382 BGH NJW 1979, 1600, 1601; NJW 1971, 2220, 2222; MünchKomm-H Papier, BGB (3rd edn, 1997) § 839 Rn 314.

383 cf above 55-56; caselaw in F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 55.

384 BGHZ 62, 394, 397; RGZ 138, 209; 145, 56; 161, 199.

385 cf above 57-58.

386 KA Bettermann, ‘Rechtsgrund und Rechtsnatur der Staatshaftung’ DÖV 1954 299, 304; MünchKomm-H Papier, BGB (3rd edn, 1997) § 839 Rn 296-299.

387 H Papier in Maunz-Dürig, Komm zGG (1998) Art.34 Rn 12; F Ossenbühl, Staatshaftungsrecht (5th edn, 1998) 10.

388 P Dagtoglou in BK zGG (1970) Art.34 Rn 4.

389 MünchKomm-H Papier, BGB (3rd edn, 1997) § 839 Rn 298-299.

390 F Ossenbühl, Staatshaftungsrecht (5th edn 1998) 6; H Papier in Maunz-Dürig, Komm zGG (1998) Art.34 Rn 12.

391 H Papier, ibid Art.34 Rn 84.

392 ibid Art.34 Rn 82; cf MünchKomm-H Mertens, BGB (3rd edn, 1997), Vor §§ 823-853 Rn 44.

393 K Windthorst and HD Sproll, Staatshaftungsrecht (1994) 59-60; P Dagtoglou in BK zGG (1970) Art.34 Rn 2.

394 cf B Mugdan, (ed), Die gesamten Materialien zum Bürgerlichen Gesetzbuch für das Deutsche Reich (1899) 1385-1403; RGZ 74, 250, 252; BGH NJW 1992, 2476; F Ossenbühl, Staatshaftungsrecht; (5th edn, 1998) 79.

395 F Ossenbühl, ibid 79.

396 BGHZ 13, 88, 104.

397 BGHZ 42, 176, 181.

398 BGHZ 70, 7, 9; 79, 26, 29; cf Staudinger-K Schäfer, BGB (12th edn, 1986) § 839 Rn 369.

399 BGHZ 69, 128, 134; 79, 26, 29-30; 22, 383, 388.

400 H Papier in Maunz-Dürig, Komm zGG (1998) Art.34 Rn 252.

401 cf ibid Rn 89-96.

402 Meanwhile the Constitution was changed, but the Federation has not yet made any further attempt to reform the law.

403 Bundesministerium der Justiz (ed), Zur Reform des Staatshaftungsrechts – Berichte, Modelle, Materialien (1987) 377.

404 cf E Haschke, Local Government Administration in Germany http://iecl.iuscomp.org/gla/literature/localgov.htm 6-7

405 ibid 10-11.

406 cf WVH Rogers, ‘Keeping the Floodgates Shut: ‘Mitigation’ and ‘Limitation’ of Tort Liability in the English Common Law’ in J Spier (ed) The Limits of Liability – Keeping the Floodgates Shut (1996) 75, 81.

407 cf Stovin v Wise [1996] AC 923 (HL) 952.

408 cf WVH Rogers, Winfield & Jolowicz on Tort (15th edn, 1998) 111.

409 [1999] 3 All ER 193 (HL) 199-200, 213.

410 Osman v UK (1999) 11 AdminLR 200.

411 The Times, 6th July 1999.

412 CA, 29 July 1999.

413 Barrett v Enfield LBC [1999] 3 All ER 193 (HL) 207-208, 227-229.

414 D Fairgrieve and M Andenas, ‘Tort Liability For Educational Malpractice: the Phelps case’ (1999) 10 KCLJ 210 (forthcoming), (page 10 of transcript provided by authors).

415 cf Capital and Counties plc v Hampshire CC [1997] QB 1004; Beverly Palmer v Tees Health Authority The Times, 6th July 1999.

416 [1999] 3 All ER 193 (HL) 230; cf P Craig and D Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ [1999] PL (forthcoming), (page 14-16 of the transcript).

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