Suing the State: Governmental Liability in Comparative Perspective
| Date | 01 September 2004 |
| Author | Donal Nolan |
| Published date | 01 September 2004 |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.00515.x |
REVIEWARTICLE
Suing the State: GovernmentalLiability in
Comparative Perspective
Donal Nolan
n
Duncan Fairgrieve,State Liability in Tort: A Comparative Law Study,Oxford:
OxfordUniversity Press, 2003, l þ354pp, hb d60.00.
INTRODUCTION
Tort law is a remarkably dynamic subject.The overall picture is in a state of rapid
£ux, so that topics which dominated the scene ten or twenty years ago ^ such as
recovery for pure economic loss ^ are now scarcely discernible in the background,
while other, previously rather marginal, issues ^ such as actionsfor wrongful con-
ception^ have takencentre stage.One subject, however,consistently maintains its
position in the foreground of the canvas: the liability of public authorities.
Attempts to explain this might highlight the practical importance of the topic,
the complexity of the issues involved, and the degree of overlap with rapidly
changing areas of public law and human rights law. In any case, a subject of such
consistent contemporary signi¢cance cries out for the in-depth treatment that
only a monograph can provide.Works from ten or twenty years ago still contain
much of value,
1
but the pace of change means that the publication of a newbook
on the topicby Duncan Fairgrieve, State Liability inTort: AComparative Law Study,
2
is to be welcomed.
The scope of State Liability is broad, in two ways. First, Fairgrieve does not limit
his analysis to the liability of state organs in tort: all sources of compensation for
administrative wrongdoing are considered. Secondly, the book looks at English
and French law in equal measure. This is, then, truly a work of comparative law.
Therein lies both its strength and its weakness. From the perspective of the
‘domestic’ lawyer ^ whether French or English ^ the particular appeal of such a
study is t he way in which it extends a nd enriches the ‘supply of solutions’ available
to di⁄cult problems arising in one’s own legal system,
3
whilst also revealing the
degree to which domestic legal principles either coincide with or diverge from
those of another system. All round, important lessons can be learned.The draw-
n
Worcester College, Oxford.
1 See C. Harlow, Compensation and GovernmentTorts (London: Sweet & Maxwell,1982); S. Arrow-
smith, Civil Liability and Public Authorities (W|nteringham: Earlsgate,1992).
2 (Oxford: Oxford University Press, 2003). Hereinafter StateLiability. Page references in the text are
to this book.
3 See K. Zweigert and H. K˛tz,An Introductionto Comparative Law (Oxford: OxfordUniversity Press,
3
rd
ed,1998) 15.
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(5) MLR 844^860
back is that the treatment of one’s own system inevitably lacks the depth that
would be possible in a work considering that system alone. That is not to say,
however, that a comparative study of this kind is incapable of providing what
might be termed ‘internal’ insights into domestic law. On the contrary, for the
most part the exposition of English law in Fairgrieve’s book is valuable in its
own right, and not only as an aspect of a broader, comparative, exercise. Sincethis
review is by an English tort lawyer, the focus will be on identifying the ways in
which Fairgrieve advances our understanding of the English law of state liability,
both‘internally’, by his own treatment of the topic, and ‘externally’, by o¡ering,
through his comparative analysis, a new perspective which enables us critically to
illuminate the issues involved.
4
Beforewe turn to the substance of this analysis, some general comments can be
made. Since di¡erent legal systems categorise things di¡erently, comparative stu-
dies are inevitably bedevilled by problems of taxonomic incommensurability.
Fairgrievemeetsthechallenge,however,andthedivisionofthecoreofthebook
into threechapters covering public law unlawfulness and liability in damages, the
move beyond illegalityto liability for fault, and liability forlawfully causedloss is
both imaginative and e¡ective. Other chapters deal with causation, actionable
damage andassessment of damages, and alternative means of redress. There is also
an overview at the beginning, a comparative conclusionat the end, and an appen-
dix containing English translations of key French decisions in this area. The
researchthat has gone into thebook is most impressive. Fairgrieve has delved dee-
ply intothe literature of both systems, and also draws upon interviews with prac-
titioners, representatives of public authorities and civil servants. The result is a
workof real gravitas, whichwill prove a rich resource for futureresearchers in this
¢eld. Fairgrieve also has avery sure touch. On the English side, this reviewer was
unable to identify any real errors, though Fairgrieve’s suggestion (p 82) that a
Court of Appealdecision concerning highways, Larner vSolihull Metropolitan Bor-
ough Council,
5
casts doubt on the strict approach to liability adopted by the House
of Lords in Stovin vW| s e
6
fails to takeaccount of the distinctionbetween failure to
exercise a statutory power and failure to exercise a statutoryduty.
7
Unli ke Stovin,
Larner concerned a statutory duty,
8
and LordWoolf CJ was at pains to distinguish
cases ‘where a statutorybody has merelya power and where it is u nder a statutory
duty’.
9
LordWoolfal soremarked that the position had been ‘accuratelysummari sed’
by LordHo¡mann in the earlier decision.
10
It is only fair to point out, however, that
Gorringe vCalderdale Metrolitan Borough Council
11
^ a decision of the House of Lords
handed down after the book’s publication ^ appears to do away with the power/
duty distinction, and to support Fairgrieve’s contention that the reasoning in
4 See P. Legrand,‘Comparative Legal Studies and Commitmentto Theory’(1995)58 MLR 262, 264.
5 [2001] RTR 32.
6 [1996]AC 923.
7 See also at 128, n 549 (a ‘seemingly less rigorous approach’), and at 281-282 (‘a more liberal
approach’).
8 Imposed by s 39 of the Road Tra⁄cAct 1988.
9 [2001] RTR 32 at para 9.
10 ibid, at para 11.
11 [2004] UKHL 15, [2004] 2 All ER 326.
Donal Nolan
845rThe Modern LawReview Limited 2004
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