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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 | Discuss this article

Table of content

Abstract
A. Introduction
B. The Country Reports
C. The English and German Cases
- I. English and German judgments
- II. The cases
D. Evaluation of policy arguments
E. Conclusion
List of Abbreviations
Bibliography
- English and international legal literature
  - I. Textbooks
  - II. Articles
- German legal literature
  - I. Textbooks
  - II. Articles
Footnotes

Abstract

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

A. Introduction

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

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

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

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

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

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

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

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

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

B. The Country Reports

I. Some general observations

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

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

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

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

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

1. The rule of law

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

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

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

2. Duty of care

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

a) The development of the law

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

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

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

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

b) The present law

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

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

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

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

c) Duty Factors relevant to public authorities

(1) Statutory duties and powers

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

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

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

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

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

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

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

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

(2) Liability for omissions and acts of third parties

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

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

(3) Statutory framework and statutory purpose

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

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

(4) The kind of the loss suffered

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

(5) Immunities

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

3. Other elements of the tort of negligence

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

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

III. The German Law

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

1. § 823 BGB

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

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

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

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

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

2. The German law of state liability

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

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

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

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

a) § 839 BGB

§ 839 BGB reads as follows:

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

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

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

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

b) Art. 34 GG

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

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

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

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

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

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

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

(1) The official

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

(2) Act in exercise of a public office

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

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

(3) Breach of official duty

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

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

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

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

(4) Duty owed to a third party

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

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

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

(5) Fault

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

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

(6) Causation

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

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

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

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

(7) Damages

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

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

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

d) Limitation of liability

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

(1) § 839 I 2 BGB

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

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

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

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

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

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

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

(2) § 839 II BGB

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

(3) § 839 III BGB

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

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

(4) Contributory negligence

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

e) Answerability as the proper party (Passivlegitimation)

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

IV. Summary

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

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

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

C. The English and German Cases

I. English and German judgments

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

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

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

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

II. The cases

1. Liability of the police for failing to prevent crime

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

a) Hill v Chief Constable of West Yorkshire

The facts

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

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

Outcome:

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

Opinion of Lord Keith of Kinkel

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

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

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

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

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

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

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

Opinion of Lord Templeman

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

b) BGH LM §839[fg] BGB Nr.5

The facts

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

Outcome

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

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

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

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

c) Notes

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

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

2. Liability of the prosecution service

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

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

The facts

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

Outcome

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

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

Judgment of Steyn LJ

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

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

Judgment of Morritt LJ

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

b) BGH NJW 1998, 751

The facts

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

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

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

Outcome

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

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

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

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

c) Notes

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

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

3. Liability of highway authorities

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

a) Stovin v Wise

The facts

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

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

Outcome

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

Opinion of Lord Hoffmann

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

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

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

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

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

Dissenting opinion of Lord Nicholls of Birkenhead:

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

b) BGH NJW 1980, 2194

Facts

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

Outcome

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

The Supreme Cour²⁹⁵ held that the defendant city had breached its official duty to maintain road traffic safety. This public law duty, derived from the Roads Act of the respective Land, had the same content as the general legal duty to maintain safety (allgemeine Verkehrssicherungspflicht). Its scope was determined by the importance of the highway in