01 February 2012 Written by  Aberham Yohannes and Desta G/michael

Remedies and Governmental liablity

Remedies

The term remedy in this context refers to the varieties of awards/relieves that may be granted by the reviewing court following an application for judicial review. As a general rule, where any of the grounds justifying judicial review are there, a person complained against the agency decision has to include in his or her application for judicial review the type(s) of order or redress he or she sought from the reviewing court. Thus, the relief that the applicant seeks from the reviewing court is what we call remedy.

For technical and historical reasons, remedies are broadly classified into public law remedies and private law remedies. Those included within the category of public law remedies also known as prerogative orders are certiorari (a quashing order), prohibition (prohibiting order), mandamus (mandatory order), Quo Warrant, and Habeas Corpus, whereas private law remedies include injunction, declaration and damages. Despite the classification of these remedies into public law and private law remedies, due to technical and historical reasons, both types of remedies have been now used in many common law jurisdictions as remedies in public law. At the outset, it has to be noted that each of the remedies listed above are not mutually exclusive. Appreciating this fact, Cane writes:

Leaving damages aside, these remedies perform four main functions: the mandatory function of ordering something to be done is performed by mandamus and the injunction; the prohibiting function of ordering that something not be done is performed by prohibition and the injunction; the quashing function of depriving a decision of legal effect is performed by certiorari; and the declaratory function of stating legal rights or obligations is performed by the declaration. The use of more than one remedy to perform two of these functions involves unnecessary duplication and produces undesirable complications in the law (Cane, p.62.)

Having said this as introductory remark, let us proceed to the detail in the subsequent sub-sections in turn.

8.1.1. Public Law Remedies

As it has been discussed in the previous chapters, the primary purpose of judicial supervision of the administration is to restrain the latter from operating within the bounds of the law. So, public law or prerogative remedies of public law, in the English tradition, have primarily been used to ensure whether or not the government machinery operates properly. Due to this fact, it is said that these remedies are more liberally granted than the private law remedies that are mainly concerned with the enforcement of private rights. Brief mentions of the typical public law remedies that are widely used to rectify administrative wrongs through the process of judicial review are discussed below.

8.1.1.1 Certiorari

The writ of certiorari, also referred to as quashing order, is a procedure through which the reviewing court investigates the legality of an agency’s decision complained of, and will quash or nullify where the decision in question is found to be ultra vires. According to Cane, “In its term, an order of certiorari instructs the person or body whose decision is challenged to deliver the record of the decision to the office of the Queen’s Bench Division to be quashed (deprived of legal effect). Concerning the theoretical and practical effect of certiorari Cane makes important remark as follows:

There is a theoretical problem here because a decision which is illegal in the public law sense is usually said to be void or a nullity in the sense that the decision is treated as never having had any legal effect. A decision which has never had any legal effect cannot be deprived of legal effect. On this view, when we say the certiorari quashes an illegal decision, what we really mean is that the order formally declares that from the moment it was purportedly made (‘ab initio’) the decision had no effect in law. Thus, anything done in execution of it is illegal. This is the declaratory view of certiorari. An alternative view is that an illegal decision is valid until a court decides that it is illegal, at which point it can quash it with retrospective effect. On this view, certiorari has a constitutive effect rather than a purely declaratory effect.

Even if the declaratory view of certiorari is theoretically correct, however, and illegal decisions never have legal effect, it may not be possible or wise for a person just to ignore such a decision, especially if it authorizes the government to act to that person’s detriment. Apart from the fact that it is often unclear, as a matter of law, whether a decision is illegal or not (and so it would be unsafe just to ignore it), it is not the case that a void decision is forever void. However, illogical it may seem, a void decision will become valid unless it is challenged within any time limit for challenges, by an applicant with standing, and unless a court exercises its discretion to award a remedy to the applicant. Once the decision ‘matures into validity’ as it were, acts already done in execution of it also mature into legality because maturity is retrospective. So, whatever the position in theory, in practice, certiorari is not just declaratory in effect (Cane, pp.63-63.)

Thus, if a person feels aggrieved because of ultra vires administrative acts affecting his interest, it is advisable for him or her to invoke judicial review within the allowable period of time lest the illegal administrative decision may be turned to legality (or to use Cane’s word ‘maturity’) after the expiry of the statutory period fixed for filing application for judicial review. Normally, where certiorari is granted by the reviewing court, the parties have to be returned to their original pre-decision position.

8.1.1.2 Prohibition

The prerogative order of prohibition, as its name implies, performs the function of ordering a body amenable to it to refrain from illegal action. It is an order issued by a higher court to prevent an inferior tribunal or administrative authority from exceeding or from continuing to exceed its authority, or from behaving ultra virally while dealing on matters that affect the interest of the complainant. The striking contrast between certiorari and prohibition is that, while certiorari quashes what has been already done, ultra virally restrains a government body from taking a certain course of ultra vires action. Thus, certiorari has retrospective effect - nullifying an already made illegal or ultra vires act, whereas prohibition has a prospective effect - it stops the continuity of an ongoing course of action or restrains the execution of an already made decision beforehand. Thus, while certiorari has nullifying effect, prohibition has preventive effect.

The applicant may, in appropriate cases, seek both certiorari (quashing order) and prohibition (prohibiting order) in conjunction; for example, certiorari to quash the decision in question and prohibition to prevent the execution of the nullified decision or the taking of other particular action.

8.1.1.3 Mandamus

Mandamus (mandatory order) is the other important public law remedy that deals with agency inaction. According to Cane, certiorari and prohibition are concerned with control of the exercise of discretionary powers, whereas the prerogative order of mandamus is designed to enforce the performance by governmental bodies of their duties. However, as case laws indicate, this comparison does not hold always true. According to Cumper, mandamus may also be used to compel the decision-maker to exercise his/her discretion properly. Cumper,(320) cited two important cases to substantiate his opinion as follows:

Thus, it [mandamus] may force a decision-maker to take relevant considerations into account (R v Birmingham Licensing Planning Committee, ex parte Kennedy [1972] 2 QB 140) and not to abuse power which has been conferred (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). Mandamus (a mandatory order is often applied for in conjunction with certiorari (a quashing order). For example, where there has been a breach of the rules of natural justice, certiorari (a quashing order) will quash the decision and mandamus (mandatory order) will compel a rehearing.

Concerning the legal consequences that breaching statutory duties may entail to the decision-maker, Cane:

Breach of statutory duty can take the form either of non-feasance (i.e. failure to perform the duty) or misfeasance (i.e. bad performance). In certain circumstances a person who suffers damage as a result of a breach of statutory duty by a public authority can bring an action in tort for damages or an injunction. Public authorities can also be attacked for nob-feasonce by being required to perform their duty. Mandamus (or an injunction in lieu) is the remedy for this purpose. Mandamus sometimes issues in conjunction with certiorari to require a body whose decision has been quashed to go through the decision-making process again. In this type of case the duty which mandamus enforces is often not a statutory one but the common law duty, which every power-holder has, to give proper consideration to the question of whether or not to exercise the power(p64).

8.1.1.4. Quo Warranto

From Wade & Forsyth, Administrative Law (7th ed., 2000), pp. 567-568

Quo warrant was originally a prerogative writ which the Crown [in the United Kingdom] could use to inquire into the title to any office or franchise claimed by the subject. It fell out of use in the sixteenth century and was replaced by the information in the nature of quo warranto, which in form was a criminal proceeding instituted in the name of the Crown by the attorney general or by a private prosecutor. Since 1938, the information was replaced by the Administration of Justice (Miscellaneous Provision).Since then, the injunction has been made available by statute to prohibit the usurpation of public office, in place of the former proceeding known as quo warranto. The Miscellaneous Provisions Act 1938, in turn, was replaced by the Supreme Court Act, of 1981, which provided that, where any person acts in an office to which he is not entitled and an information would previously have lain against him, the High Court may restrain him by injunction and may declare the office to be vacant if may need be; and no such proceedings shall be taken by a person who would not previously have been entitled to apply for information. Consequently, the old law of quo warranto is still operative, but the remedy is now injunction and declaration. The procedure is similar to that of the  prerogative remedies, and it is must now be by ‘application for judicial review’.

The old procedure by information was available to private persons subject to the discretion of the court. A private prosecutor brought the best-known modern case, in which it was unsuccessfully claimed that two foreign born Privy Councilors were disqualified from membership, the courts held that the Naturalization Act 1870 had repealed the disqualification imposed by the Act of settlement 1700. The modern tendency has been to extend the remedy, subject to the discretion of the court to refuse it to a private prosecutor; for example, if he has delayed unduly. A private prosecutor acting on public grounds may expect the assistance of the court. He is sometimes called the relator, although he does not have to obtain the leave of the General-Attorney.

The remedy as now defined applies to usurpation of ‘any substantive office of a public nature and permanent character which is held under the Crown or which has been created by any statutory provision or royal charter. But it must not be a case of ‘merely the function or employment of the deputy or servant held at the will and pleasure of others’. Here, once again, we meet the difference between office and mere contractual employment. The procedure was typically used to challenge the right to such office as those of freeman or burgess of a borough, mayor, town councilor, sheriff, justice of the peace, county court judge, chief constable or member of the General Medical Council. But the alleged usurper had to be in possession of the office and to have acted in it.

For challenging the qualification of a member of a local authority, there are special statutory provisions under the Local Government Act 1972. Proceedings may be instituted in the High Court or a magistrates’ court, but only by a local government elector for the area concerned, and only within six months of the defendant having acted as a member; if the defendant merely claims to be entitled to act, proceedings lie in the High Court only. The various remedies include declarations, injunctions and financial penalties.

An inference can be made from the explanation of the authorities stated above that quo warranto is a prerogative writ, which falls within the category of public law remedies. It has been used for a long period of time in England as a process to challenge the legitimacy of titles assumed by government officials, and now it is also applicable to challenge the usurpation of offices assumed in the interest of the public. The prerogative writ of quo warranto is sanctioned by declaration, injunction and financial penalties.

8.1.1.5 Habeas Corpus

The writ of habeas corpus (produce the body) is used to obtain the release of someone who has been unlawfully detained, e.g., wrongfully arrested. It is a procedure through which an illegally detained person applies to the court requesting an order for his physical release. It serves as a modality for securing the liberty of a person by affording an effective means of immediate release from unlawful or unjustified detention. Habeas corpus referred to as the “Great Writ” in common law, has traditionally maintained high reputation as a safeguard of personal liberty. Currently, it is an attempt to measure up to the standards of human rights and fundamental freedoms which entitle the detainee to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered, if the detention is found to be unlawful.

The writ of Habeas Corpus has received blessing in many jurisdictions, and is being used as a vital instrument for protecting the fundamental human rights of individuals to their liberty.  Currently in Ethiopia, too, it has received the blessing of the FDRE Constitution. In chapter three of the constitution that deals with ‘fundamental rights and freedoms’, Article 19 particularly deals with the right of arrested persons stated that in its sub-Article 4 as follows: “All persons have an inalienable right to petition the court to order their physical release where the arresting police officer or the law enforcer fails to bring them before a court within the prescribed time and to provide reasons for their arrest….” Authorities assert that the public law remedies are privileges that can be granted at the court’s discretion. this means that, unlike in the case of appeal, individuals, as of right, cannot invoke judicial review. However, although the Writ of Habeas Corpus falls within the traditional category of public law remedies, it is recognized under our constitution as inalienable right conferred to all persons detained. This right can be denied only on its merit where the detention has justifiable ground; but there is no need for leave for judicial review like the other public law remedies discussed above.

8.2.1 Private (Ordinary) Law Remedies

As stated earlier, the basis of the classification of the public law and private law is mainly historical. According to Cane, the private law remedies are so-called because they were originally used only in private law but later came to be used in public law (Cane, p. 66). Many of these remedies, for example in England, are used in conjunction or as alternatives to the other public law remedies. So, classification between private and public law remedies is merely historical and technical. Technically speaking, prerogative remedies may be invoked by an application for leave for judicial review but this is not the case in most private law remedies.

8.2.1.1 Injunction

An injunction in the common law tradition is known as an equitable remedy, which means that it is in the discretion of the court whether or not to grant it. It is a court order, which in the majority of cases that orders the party to whom it is addressed not to do a particular act. But broadly speaking, it can be negative (i.e., forbidding a decision-maker from doing something), or mandatory (i.e., ordering a decision-maker to do something). In public law, injunctions tend to be negative in nature, because mandamus will normally be sought in order to compel a decision-maker to carry out a duty (Cumper, pp. 320-321.) In a similar vein, Cane also stated that injunction may be granted in lieu of prohibition (prohibiting order) or mandamus (mandatory order). This remedy found its way into public law partly as a means of enforcing public law principles, especially the rules of natural justice, against non-governmental regulatory bodies which derived their powers from contract and so were not amenable to orders of prohibition or mandamus Cane, p.66).

Injunction can be granted in both public and private law as an interim or final relief. An interim injunction (also referred to as interlocutory injunction) is a provisional remedy that may be granted at the court’s discretion at the interlocutory proceedings pending the hearing of the case. Its purpose is to prevent a party from continuing the actions complained of until a full hearing of the case. As a rule, an interim injunction has to be granted where there is imminent danger of irreparable injury and damages would not be an adequate remedy. There are also cases where injunction may be granted as a final relief in public matters both in the positive and negative sense in lieu of mandamus and prohibition, respectively.

8.2.1.2 Declaration

This is simply asking the court to make a ruling on what the law is. It is used in both public and private laws and is available in wider circumstances than the prerogative orders. (Blakemore & Greene, p.122.) Another authority noted concerning the meaning of declaration in England as follows :

A declaration, or declaratory judgment is a remedy which was used in the crown of chancery and also in the common law Court of Exchequer. It declares what the legal rights of the parties  to the action are and differs from other judicial remedies in that it declares the law without any sanction and has no coercive effect. The reason for this is that it was always sought in conjunction with remedies, which the court could enforce. Now in England, a declaration may be sought in public law case along with one or more of the prerogative orders as well as with an injunction and/or an award of damages.

Although it is a private law remedy in its origin, declaration is now widely in use as a remedy in both private and public law cases. Its main  purpose is to determine or ascertain what the law says without changing the legal position or rights of the parties. It declares what the law is or says in relation to a certain uncontested fact.

8.2.1.3 Damages

In legal parlance, the term damages is usually used interchangeably with the term compensation. The purpose of awarding damages in this context is to repair the pecuniary or non-pecuniary harm inflicted upon the complainant because of administrative wrongs. The  worthmentioning point here is that damages may not be awarded to the complainant on the mere ground that s/he has suffered some sort of compensable injury due to the act of an administrative body, which is found to be ultra vires in a judicial review. This means, the fact that an administrative action is successfully attacked in judicial review does not necessarily entitle the victim of that act a right to claim compensation.

Damages are purely a private law remedy that can be claimed by the victim of a wrongful act in accordance with the dicta of private law. As in Cooper v Board of Works for the Wands worth District (1836), damages may also be awarded in judicial review but only if the applicant also has private law rights. (Cumper, p. 321.) In this regard, Cane gave an elaborative remark as follows:

Unlike declaration and injunction, which are private law remedies (remedies for the redress of private law wrongs) which have been extended to redress public law illegality, damages are purely private law remedy. In other words, in order to obtain an award of damages it is necessary to show a private law wrong; damages cannot be awarded simply on the basis that a government body has acted illegally. The relevance of the remedy in public law is that public bodies can commit private law wrongs, and so damages are a remedy available against public bodies. For example, damages for breach of contract can be obtained against a government department. Conversely, whereas a declaration or injunction is available to restrain a breach of natural justice or to declare the invalidity of a decision made in breach of the rules of natural justice, damages are not available for breach of natural justice as such, because this is a wrong recognized only in public law. If a breach of natural justice also amounted to a breach of contract, damages might be available for the breach (p.73).

As can be inferred from the above-mentioned authorities, a claim for award of damages can be filed before the reviewing court, but the granting of the award depends on whether or not the decision rendered is invalid on the grounds of the public law principles at the same time constitutes a civil wrong in private law such as torts and contract and whether or not the applicant suffers a compensable injury due to such private wrong. So the award of damages in judicial review is a matter of coincidence. That is, when the grounds justifying judicial review at the same time constitutes private wrongs, damages may be awarded to the applicant provided that s/he proved a compensable injury caused to her/his interest as per the governing private laws.

7.1 Liability of the Administration

As was stated above, the awarding of damages belongs to the private law remedies. In addition to, or apart from applying for either of the public law remedies such as certiorari, prohibition, mandamus, or the private remedy- injunction, where the applicant suffers a compensable injury due to administrative wrong, s/he may also claim damages in the form of pecuniary compensation or in the form of other appropriate compensatory remedies. Thus, there is a possibility for suing the state, its administrative units, and servants for damages based on extra contractual wrongs or for breaches of contractual obligations. The term administrative liability, here, is preferred to state or governmental liability since this principle of liability in many jurisdictions including Ethiopia is extended to all public authorities.

In the common law tradition, the reviewing court may award damages, in addition to granting either of the prerogative remedies or injunction, where the decision in question constitutes a wrong under the governing private law, that is, law of torts or contract. Where the reviewing court rejects the application for judicial review for one or aother reason, it cannot award damages even if the administrative conduct complained of constitutes a manifest extra contractual or contractual wrong. Thus, the award of damages, for example, in the United Kingdom is conditioned on the grant of any of the prerogative remedies mentioned above. But it does not mean that, whenever there is judicial review, there is always award of damages; as factors justifying judicial review may not sometimes completely overlap with those of constituting civil wrong. In the United Kingdom, for example, since the adoption of the Crown Proceedings Act 1947, the liability of the Crown and other public authorities is generally accepted, so that the citizens are able to sue them for damages in tort or contract which is applied to public authorities as to private individuals (Brown & Bell, p.173) In fact, because of the nature of the special relation the administration has with individuals, it may incur special civil liabilities But in the majority of cases, the administration in England is held civilly liable in the same manner as individuals in their private relation.

However, in France, which is a typical model of the continental law system, there is a different practice. As was discussed some where else, in France, there is a clear divorce between public law and private law, On one hand there are administrative courts and on the other hand they are civil courts. The French administrative courts have the power, among other things, to litigate administrative legality and liability in accordance with the governing principles of the administrative law. The rules governing administrative liability are different in many respects from those found in the droit civil (civil code) and applied by the civil courts in suits against private individuals. In a very real sense, therefore, there co-exist in France two laws of tort, two laws of contract, the one private and the other public or administrative. French administrative courts/tribunals are entrusted with the power to entertain not only disputes related to the legality of administrative decisions but also those related to the liability of the state and its servants to the victims of administrative wrong, be it tortuous or contractual wrong. In France, the administration is liable to compensate a citizen who is harmed through the decisions or activities of the administration, which need not be unlawful in all cases (Brown & Bell, p. 173). Thus, the French administration is normally held vicariously liable for civil harms caused due to faults committed by its servants in relation to public service and also in exceptional cases for those harms caused without fault due to the danger or risk associated activities the state operates.

The practice in Ethiopia fits neither the English nor that of t the French in absolute terms. Like the practice in English, but unlike the French one, the tortuous liability of the administration (the state and its servants) in Ethiopia is governed by the ordinary law of the country.  And like the French practice, but unlike the English one, the tortuous liability of the state and its servants in Ethiopia is not limited to fault based liabilities.  There are cases where the state or its administrative sub-units may be held strictly and vicariously liable for the injury caused to third parties because of the dangerous activities it operated, or due to the official fault committed by its employees or servants during discharging their duties.

Concerning the contractual liability of the state, too, the practice in Ethiopia neither fits the common law nor the continental law counter parts. Normally, the state is contractually liable for damages it caused to a contracting party due to breach of its contractual obligation. Special provisions that particularly deal with administrative contract are incorporated under the Ethiopian Civil Code. These provisions reserve many exceptional powers to the administration in the interest of the public. So, appreciating, on the one hand, the interest of the public at stake and on the other hand, the prejudices that may be caused to the legitimate expectation of a party to the contract due to the unilateral act of the administration, the special provisions of administrative contract provide certain protections to the contracting individual. In this regard, there is a similarity with that of the French. However, the ordinary principles of contract, in general, are still applicable to administrative contract in Ethiopia unless otherwise stipulated to the contrary in the special provisions of administrative contract. But regular courts determine the contractual liability of the state and its administrative units in Ethiopia, like the common law counter parts; but unlike the practice in French where administrative courts entertain jurisdiction on disputes related to administrative contract.

In short, the administration is civilly liable to compensate the injuries it causes to individuals during the course of its administrative interaction with them. In Ethiopia, there are provisions that deal with the extra contractual liability of the administration specifically. As per Article 2126(2) cum Article 2157(2) of the civil code, the administration is vicariously liable for the torts committed due to the official fault of its servants or employees. If the fault is personal as contrasted to official fault, the person who committed the fault is personally liable to compensate the victim.

In this regard, the extra contractual liability of the administration in Ethiopia is modeled after the French counter part despite minor differences. For example, in the French counter part, torts occasioned by the faults of state servants are classified into service fault (faute de service) and personal fault (faute personelle) that corresponds to the Ethiopian classification into official fault and personal fault. Concerning the meaning and implication of the classification of faults into service and personal faults, it is noted as follows:

There is said to be faute personelle where there is some personal fault on the part of the official, that is, a fault ‘which is not linked to the public service but reveals the man with his weaknesses, his passions, his imprudence’…Where such personal fault is present, the official can be sued personally in the ordinary courts. On the other hand, where there is simply a faute de service (one which is linked with the service), the official preserves his immunity by reason of the principle of separation of powers, which prohibits the ordinary courts receiving actions against the administration or its officials. But the injured party must sue the administration before the administrative court. (Brown & Bell, p.177)

But in terms of scope, the term faute de service (service fault) in France has broader meaning and application than the term official fault in Ethiopia. The other striking difference in this regard is that, in France, once the fault is categorized as faute de service, liability exclusively goes to the administration the servant is immune from personal liability. But as clearly stated in Article 2126(1) of the civil code, this is not the case in Ethiopia. Even if the fault is an official fault, the “servant or government employee is in every case liable to make good the damage he causes to another by his fault.”  The term official fault mentioned in sub-Article 2 of Article 2126 does not immune the public servant or government employee from personal liability; it merely gives the victim an option to sue the administration for compensation jointly and severally with the public servant or government employee. As expressly stated in sub-Article 2 of Article 2157 cum Article 2158(1) of the civil code, as a matter of discretion, where the fault consists of an official, the court may decide that the liability shall be ultimately borne by the administration wholly or partly having regard to the gravity of the fault committed. This indicates that, even if the fault is an official fault, the public servant or government employee is personally liable to compensate the victim, unless the court is willing to exercise its discretion in shifting the liability to the administration (the state, its territorial sub-divisions or the public service concerned.)

In Ethiopia, only specific categories of officials are immune from being sued for extra contractual liability.  The first provision that deals with sovereign immunity is Article 2137 of the civil code. Accordingly, “No action for liability based on a fault committed by him may be brought against His Majesty, the Emperor of Ethiopia.” This provision reflects the prevailing situation at the time of its enactment. First, sovereignty was in the hand of the then Emperor. Having anointed himself as the elect of God, he was not subject himself to the rule of land law, but only to his conscience and ordain of God. Thus, the rational behind this immunity could be any of the two classical common laws dicta, “The King cannot do wrong” or “The King cannot be sued in His Courts.”

The other immunity is given to ministers, members of the parliament, and judges. As clearly stated in Article 2138 of the code, members of the Imperial Ethiopian Government, members of the Ethiopian Parliament and judges of the Ethiopian courts are immune from being sued for liability in connection with their office. First of all, this provision has to be construed in line with the current FDRE Government structure. Hence, the then members of the Imperial Government may be equated with the ministers, commissions and others constituting members of the Council of Ministers at the Federal level, on the one hand and, the respective regional counter parts, on the other hand. The same line of interpretation should go to members of the parliament and judges. But the immunity given to these officials is not an absolute immunity like the one given to the Emperor. It is an immunity given to them only for civil liabilities they incur in connection with their respective official duties. They are liable for torts they committed in their private capacity (while enjoying private life like any citizen). Even in matters related to their official duty, where the fault they committed constitutes an offence under the penal law and are convicted to such effect, any one who suffers civil injury due to such faults can sue the wrongdoer.

The purpose of the immunity granted to those officials mentioned above is not to render the victim helpless. In this case, the victim should be compensated by the concerned administration. Of course, to make those officials personally liable for the civil injuries they caused to third parties might have futile consequences. Intimidated by the threat of actions for civil liabilities, individuals may not be willing to assume such positions, and even when they assume it by any magic of miracle they may lack the requisite courage in exercising their discretion in order to reach at a sound decision within the reasonable time bound.  So, while providing immunity to them in this regard seems acceptable from policy perspective, it should not be done at the expense of individual victims. In this regard, it seems important to see the French experience. The French administrative law jurisprudence developed an alternative principle that connects liability of the administration with the fundamental principle of the equality of all citizens in bearing public burdens. Brown & Bell jointly cited an important remark from Duguit as follows:

[T]he activity of the state is carried on in the interest of the entire community; the burdens that it entails should not weight more heavily on some than on others. If then state action results in individual damage to particular citizens, the state should make redress, whether or not there be a fault committed by the public officers concerned. The state is, in some ways, an insurer of what is often called social risk… (Brown & Bell, p.184). Here French is basing liability on the principle that what is done in the general interest, even if it is done lawfully, may still give rise to a right to compensation when the burden falls on one particular person.

Another worth mentioning point on extra contractual liability of the administration is related to the strict liability for dangerous or abnormal risk associated administrative ventures. Like in the case of France, in Ethiopia, where the state causes injury to third parties while pursuing dangerous activities or abnormal risk associated ventures in the manner stated in Article 2069(1) of the civil code, it will be held strictly liable to compensate the victim in accordance with sub-Article 2 of same.

Last modified on Wednesday, 02 May 2012 13:05
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