Oxford University Comparative Law Forum
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
Table of content
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.
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
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
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
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
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
(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
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
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
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
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
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
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
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
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
§ 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
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
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
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
§ 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
(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
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
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
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 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
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
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
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
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
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
Opinion of Lord Templeman
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 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.
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
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.
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
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.
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
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
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
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.
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.
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 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
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.
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
Opinion of Lord Hoffmann
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
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
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.
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
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
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
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
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.
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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.
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
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|
|All ER||All England Law Reports|
|ALR||Australian Law Reports|
|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|
|CA||Court of Appeal|
|CFLQ||Child and Family Law Quarterly|
|Ch.||Law Reports, Chancery Division (from 1891)|
|CornellLRev||Cornell Law Review|
|CPS||Crown Prosecution Service|
|DÖV||Die Öffentliche Verwaltung|
|DVBl. D||Deutsches Verwaltungsblatt|
|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|
|HCA||High Court of Australia|
|HL||House of Lords|
|JAssocLTeachers||Journal of the Association of Law Teachers|
|KCLJ||King's College Law Journal|
|Komm zGG||Kommentar zum Grundgesetz|
|KWG||Gesetz über das Kreditwesen|
|Law Com||Law Commission|
|LBC||London Borough Council|
|LMCLQ||Lloyd's Maritime and Commercial Law Quarterly|
|LQR||Law Quarterly Review|
|MLR||Modern Law Review|
|NHS||National Health Service|
|NJW||Neue Juristische Wochenschrift|
|NVwZ||Neue Zeitschrift für Verwaltungsrecht|
|NVwZ-RR||Neue Zeitschrift für Verwaltungsrecht-Rechtsprechungsreport|
|OLG||Oberlandesgericht (German Court of Appeal)|
|OJLS||Oxford Journal of Legal Studies|
|PC|| Privy Council|
|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|
|Urt. v.||Urteil vom|
|WLR||Weekly Law Reports|
|ZAP-EN||Zeitschrift für Anwaltspraxis - Eilnachrichten|
|ZIP||Zeitschrift für Wirtschaftsrecht und Insolvenzpraxis|
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1 ibid 345,
2  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  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,
9 Barrett v
Enfield LBC  3 All ER 193 (HL).
10 Murphy v
Brentwood LBC  1 AC 398 (HL).
11 Stovin v
Wise  AC 923 (HL).
(Minors) v Bedfordshire CC  2 AC 633 (HL); Barrett v
Enfield LBC  QB 367; Phelps v Hillingdon LBC 
1 All ER 421 (CA); Beverly Palmer v Tees Health Authority The
Times, 6th July 1999 (CA).
and Counties plc v Hampshire CC  QB 1004.
v Comr of Police of the Metropolis  QB 335; Leach v
Chief Constable of Gloucestershire Constabulary  1 All ER
15 eg Hill
v Chief Constable of West Yorkshire  AC 53 (HL); Elguzouli-Daf
v Comr of Police of the Metropolis  QB 335; Stovin v
Wise  AC 923 (HL).
16 cf J Bell and
AW Bradley, Governmental Liability: A Comparative Study
Commission, Administrative Law: Judicial Review and Statutory
Appeals (Law Com Consultation Paper No 126, 1993) para 1.5.
18  2 AC
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  ECR I-6911.
21 J Bell and AW
Bradley, Governmental Liability: A Comparative Study (1991)
22 cf Rylands
v Fletcher (1868) LR 3 HL 330, 339-340, 341.
23 cf Stovin
v Wise  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)
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,
27 J Bell, Policy
Arguments in Judicial Decisions (1983) 23; P Cane, An
Introduction to Administrative Law (3rd edn, 1996)
28 J Bell, ibid
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.
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)
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  4 All ER 973 (CA)
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.
(Minors) v Bedfordshire CC  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)
 AC 1004 (HL).
40 ibid 1005,
 AC 562 (HL) 580.
42  AC
1004 (HL) 1011.
 1 QB 373.
44  AC 728
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  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  AC 175 (PC); Rowling v
Takaro Properties  AC 473 (PC); D & F Estates v
Church Comrs for England  AC 177 (HL).
51  1 AC
Sutherland Shire Council v Heyman (1985) 60 ALR 1 (HCA) 43-44
(Brennan J); accepted in Caparo Industries plc v Dickman 
2 AC 605 (HL).
53 cf above
16-17; S Arrowsmith, Civil Liability and Public Authorities (1992)
54 eg Governors
of the Peabody Foundation Fund v Sir Lindsay Parkinson and Co Ltd
 AC 210 (HL) 239-241; Yuen Ken Yeu v Attorney General
of Hong Kong  AC 175 (PC) 190-194; Rowling v Takaro
Properties  AC 473, (PC) 501.
55  2 AC
605, 617-618 (Lord Bridge).
56  1 AC
57 cf Murphy
v Brentwood DC  1 AC 398 (HL) 487 (Lord Oliver).
Shire Council v Heyman (1985) 60 ALR 1 (HCA) 55-56 (Deane J).
Byrne v Heller & Partners  AC 465 (HL) 530 (Lord
60 cf ibid 465.
Oil Hong Kong Ltd v Hong Kong Untitled Dockyards Ltd  1
Lloyd´s Rep 309 (PC) 368; Caparo Industries v Dickman 
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  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  3 All ER 87 (CA) 95 (Beldam LJ).
65 cf Davis
v Radcliffe  1 WLR 821 (HL) 826.
Industries v Dickman  2 AC 605 (HL) 633 (Lord Oliver:
'facets of the same thing').
67 ibid 618.
Wiltshire DC v Garland  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,
(Minors) v Bedfordshire CC  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,
72 cf Sutherland
Shire Council v Heyman (1985) 60 ALR 1 (HCA) 26 (Mason J); S
Arrowsmith, Civil Liability and Public Authorities (1992),
(1866) LR 1 HL 93.
74 cf X
(Minors) v Bedfordshire CC  2 AC 633 (HL) 735; P Craig,
Administrative Law (3rd edn, 1994) 619.
(Minors) v Bedfordshire CC  2 AC 633 (HL) 734-735; Dorset
Yacht Co Ltd v Home Office  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.
v Takaro Properties Ltd  AC 473 (PC) 501.
78  AC 728
 AC 923 (HL) 951 (Lord Hoffmann).
80  3 All
ER 193 (HL) 220-222 (Lord Hutton).
81  2 AC
633 (HL) 740.
(Minors) v Bedfordshiire CC  2 AC 633 (HL) 740.
 AC (HL) 923.
84 ibid 953.
86  3 All
ER 193 (HL).
87 ibid 211,
88 cf ibid 211,
89 WVH Rogers,
Winfield & Jolowicz on Tort (15th
edn, 1998) 117.
90 Smith v
Littlewoods Organisation  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  AC 923 (HL) 943-944, 953-954 (Lord Hoffmann).
93 B Markesinis,
'Negligence, Nuisance and Affirmative Duties of Action' (1989) 105 LQR
Shire Council v Heyman (1985) 60 ALR 1 (HCA) 28-29 (Mason J); cf
R Bagshaw, 'The Duties of Care of Emergency Service Providers' 
LMCLQ 71, 85; eg a school's responsibility to safeguard its pupils.
and Counties plc v Hamphire CC  QB 1004 for fire brigades.
96 cf East
Suffolk Rivers Catchment Board v Kent  AC 74 (HL) 102; R
Bagshaw, 'The duties of care of emergency service providers' 
LMCLQ 71, 72 .
97 Smith v
Littlewoods Organisation Ltd  AC 241 (HL) 270; RFV Heuston
and RA Buckley, Salmond & Heuston on the Law of Torts (21st
edn, 1996) 239.
98 cf  AC
99 cf Smith
v Littlewoods Organisation Ltd  AC 241 (HL) 271, 279.
100 P Craig,
Administrative Law, (3rd edn, 1994) 619.
101 cf Stovin
v Wise  AC 923 (HL) 953.
102 cf P Cane,
Introduction to Administrative Law (3rd edn,
(Minors) v Bedfordshire CC  2 AC 633 (HL) 731.
104 cf ibid
105 C Lewis,
Judicial Remedies in Public Law (1992) 378.
of the Peabody Foundation Fund v Sir Lindsay Parkinson and Co Ltd
 AC 210 (HL) 242, 245; Murphy v Brentwood DC 
1 AC 398 (HL) 408, 414.
107 cf Stovin
v Wise  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  AC 465 (HL);
Henderson v Merrett Syndicates Ltd  2 AC 145 (HL);
White v Jones  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  AC 53 (HL) 59; Barrett
v Enfield LBC  3 All ER 193 (HL) 212.
v Commissioner of Police of the Metropolis  QB 335, 349-350
(Steyn LJ) - CPS; Hill v Chief Constable of West Yorkshire 
AC 53 (HL) - police; X (Minors) v Bedfordshire CC  2
AC 633 (HL) - social services.
112 cf above
113 cf Bolam
v Friern Hospital Management Committee  1 WLR 582 (HC) 586
114 P Cane,
Tort Law and Economic Interets (2nd edn, 1996)
244; B Markesinis and S Deakin, Tort Law (4th
edn, 1999) 163
v Enfield LBC  3 All ER 193 (HL) 229.
Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd, The Wagon
Mound AC 388 (PC).
117 cf above
of § 823 taken from B Markesinis,The German Law of
Obligations - Volume II The Law of Torts: A Comparative Introduction
(3rd edn, 1997) 12.
Palandt-H Thomas, BGB (58th edn, 1999) §
823 Rn 35.
120 ibid §
823 Rn 58.
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.
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.
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.
compensation for expropriation (Enteignung ), sacrifice or
denial damage (Aufopferung) or claims to remedial action (Folgenbeseitigungsanprüche).
Windthorst and HD Sproll, Staatshaftungsrecht (1994) 144; S
Pfab, Staatshaftung in Deutschland (1996) 32.
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)
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
137 cf BGHZ 34,
99, 109-110; F Ossenbühl, Staatshaftungsrecht (5th
edn, 1998) 12.
138 BGHZ 4, 10,
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.
Windthorst and HD Sproll, Staatshaftungsrecht (1994) 62.
142 cf BGHZ 85,
393, 395-396; OLG Köln VersR 1990, 898, 899.
143 eg §§
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
149 cf BGHZ 60,
54, 56; eg the Leistungsverwaltung.
Papier, BGB (3rd edn, 1997) § 839 Rn 146.
151 F Ossenbühl,
Staatshaftungsrecht (5th edn, 1998) 27.
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.
Papier, BGB (3rd edn, 1997) § 839 Rn 146; K
Windthorst and HD Sproll, Staatshaftungsrecht (1994) 80.
Papier, ibid § 839 Rn 189.
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.
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)
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)
168 cf X
(Minors) v Bedfordshire CC  2 AC 633 (HL) 736; Stovin
v Wise  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
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
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
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)
189 cf above
190 F Ossenbühl,
Staatshaftungsrecht (5th edn, 1998) 59.
191 cf P
Dagtoglou in BK zGG (1970) Art.34 Rn 158ff.
192 cf above
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,
Heinrichs, BGB (57th edn, 1998) vor § 249Rn
199 BGHZ 96,
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.
Markesinis, The German Law of Obligations - Volume II The Law of
Torts: A Comparative Introduction (3rd edn, 1997)
203 cf above
49; OLG Oldenburg NVwZ-RR 1993, 593; K Windthorst and HD Sproll, Staatshaftungsrecht
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
206 BGHZ 34,
99, 105; F Ossenbühl, Staatshaftungsrecht (5th
edn, 1998) 11, 110.
207 cf BGHZ 78,
Papier, BGB (3rd edn, 1997) § 839 Rn 332,
Markesinis, The German Law of Obligation - Volume II The Law of
Torts: A Comparative Introduction (3rd edn, 1997)
Papier, BGB (3rd edn, 1997) § 839 Rn 300.
211 cf above
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
215 BGH NJW
216 BGHZ 68,
217; F Ossenbühl, Staatshaftungsrecht (5th
edn, 1998) 80.
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,
224 cf BGH NJW
1974, 1767; NJW 1974, 1769, 1770; K Windthorst and HD Sproll, Staatshaftungsrecht
225 BGHZ 70,
7ff; BGHZ 79, 26; NJW 1981, 626; NJW 1983, 1668.
226 cf BGHZ 91,
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,
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.
Vinke, BGB (12th edn, 1998) § 839 Rn 213.
Windthorst and HD Sproll, Staatshaftungsrecht (1994) 126.
233 cf S Lörler,
'Die Subsidiaritätsklausel in der Amtshaftung' JuS 1990, 544,
v Romford Ice and Cold Storage Co Ltd  AC 555 (HL) 576-577;
Davie v New Merton Board Mills Ltd  AC 604 (HL) 627
235 cf J
Stapleton, 'Tort Insurance and Ideology' (1995) 58 MLR 820, 824.
Stovin v Wise  AC 923 (HL) 955 (Lord Hoffmann).
237 F Ossenbühl,
Staatshaftungsrecht (5th edn, 1998) 85;
Soergel-H Vinke, BGB (12th edn, 1998) § 839
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.
Windthorst and HD Sproll, Staatshaftungsrecht (1994) 131; U
Mayo, Die Haftung des Staates im englischen Recht (1999)
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
249 cf P Cane,
An Introduction to Administrative Law (3rd edn,
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.
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.
 1 AC 53 (HL).
256 Urt. v.
30.4.1953 - III ZR 204/52.
257 Hill v
Chief Constable of West Yorkshire Police  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  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.
 QB 335.
268 BGH, Urt.
v. 16.10.1997 - III ZR 23/96.
cf  2 AC 605 (HL) 617-618.
270  QB
271  1 AC
272  QB
274 ibid 348.
275 ibid 349.
276 ibid 350.
278 ibid 352.
279 BGH NJW
1998, 751, 752-753.
280 cf BGH NJW
1979, 2097, 2098.
281 cf above
282 cf BGH NJW
1989, 96, 97.
 AC 923.
284 Urt. v.
10.07.1980-III ZR 58/79.
286 cf above
287 ibid 957.
289 ibid 958.
292 ibid 952.
295 BGH NJW
296 ibid 2195.
297 ibid 2195;
cf above 55.
298 ibid 2196.
299 cf BGH NJW
 3 WLR 534 (CA).
301 Urt. v.
15.07.1992-11 U 52/92.
 1 AC 310 (HL).
 2 AC 633 (HL) 749-751 (Lord Browne-Wilkinson).
304 W v
Essex CC  3 WLR 534 (CA) 554-555.
307 W v
Essex CC  3 WLR 534 (CA) 537-552.
308 ibid 549.
309 ibid 548.
311 ibid 548.
312 ibid 549.
314 ibid 555,
315 ibid 556.
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  2
AC 633 (HL) 750 (Lord Browne-Wilkinson).
323 cf above 72
324 cf B
Markesinis and S Deakin, Tort Law (4th edn,
1999) 38, 41.
 2 AC 633 (HL) 749.
326 cf Spring
v Guardian Assurance plc  2 AC 296 (HL) 326.
327 eg 'may
lead', 'might be expected to' in Hill v Chief Constable of West
Yorkshire Police  AC 53, 63 (Lord Keith).
328 cf B
Markesinis and S Deakin, Tort Law (4th edn,
329 D Brodie,
'Public Authorities and the Duty of Care'  JR 127, 140.
330 cf B
Markesinis and S Deakin, Tort Law (4th edn,
331  1 AC
332  AC
333  AC
334  AC
335 cf T Weir,
'Governmental Liability'  PL 40, 60.
336 W Wade and
CF Forsyth, Administrative Law (7th edn, 1994)
337 T Weir,
'Governmental Liability'  PL 40, 61.
338 ibid 61.
Markesinis and S Deakin, Tort Law (4th edn,
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.
Markesinis and S Deakin, Tort Law (4th edn,
Kun Yeu v A-G of Hong Kong  AC 175 (PC).
v Brentwood DC  AC 398 (HL).
346 cf T Weir,
'Governmental Liability'  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'  LMCLQ 71,
349 cf above
36; Bolam v Friern Hospital  1 WLR 582 (HC) 583.
350 cf Barrett
v Enfield LBC  3 All ER 193 (HL) 230; Capital Counties
plc v Hampshire CC  QB 1004, 1043; P Craig and D
Fairgrieve, 'Barrett, Negligence and Discretionary Powers'  PL
(forthcoming), ( page 10-11 of transcript provided by authors).
351  AC
923 (HL) 958.
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'  PL
(forthcoming), (page 10 of the transcript).
Stapleton, 'Duty of Care: Peripheral Parties and Alternative
Opportunities for Deterrence' (1995) 111 LQR 301, 320.
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'  PL
(forthcoming), (page 12 of the transcript).
357  AC
923 (HL) 955.
358 cf above
56; J Stapleton, 'Tort, Insurance and Ideology',  58 MLR 820,
359 cf J
Stapleton, ibid 833 FN 64.
Markesinis and S Deakin, Tort Law (4th edn,
361 WVH Rogers,
Winfield & Jolowicz on Tort (15th edn, 1998)
153; M Brazier, Street on Torts (10th edn, 1997)
362 J Bell and
A Bradley, Governmental Liability: A Comparative Study
363 cf West
Wiltshire DC v Garland  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  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' 
CFLQ 303, 306.
Stapleton, 'Duty of Care: Peripheral Parties and Alternative
Opportunities for Deterrence' (1995) 111 LQR 301, 312.
367 ibid 312.
Markesinis and S Deakin, Tort Law (4th edn,
369 cf above
370 cf eg W
v Essex CC  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  AC 53 (HL); Elguzouli-Daf
v Commissioner of Police of the Metropolis  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  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
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
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.
Papier, BGB (3rd edn, 1997) § 839 Rn
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.
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,
396 BGHZ 13,
397 BGHZ 42,
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
the Constitution was changed, but the Federation has not yet made any
further attempt to reform the law.
Bundesministerium der Justiz (ed), Zur Reform des
Staatshaftungsrechts - Berichte, Modelle, Materialien (1987) 377.
cf E Haschke, Local Government Administration in Germany http://iecl.iuscomp.org/gla/literature/localgov.htm
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  AC 923 (HL) 952.
408 cf WVH
Rogers, Winfield & Jolowicz on Tort (15th
edn, 1998) 111.
 3 All ER 193 (HL) 199-200, 213.
v UK (1999) 11 AdminLR 200.
The Times, 6th July 1999.
412 CA, 29 July
v Enfield LBC  3 All ER 193 (HL) 207-208, 227-229.
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  QB 1004; Beverly
Palmer v Tees Health Authority The Times, 6th July
416  3
All ER 193 (HL) 230; cf P Craig and D Fairgrieve, 'Barrett, Negligence
and Discretionary Powers'  PL (forthcoming), (page 14-16 of the
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