On the joint use of safety regulation and civil liability to promote safe management of hazardous operations: a French case study

Abstract

The aim of this article is to analyze the precise role of environmental civil liability in France. We do so by focusing on data from France, and claim that judges in fact seize hold of the possibility of combining regulation and civil liability. In other words, civil liability and regulation are complementary because they promote a duty of care in different ways. Moreover, judges and regulators interact; they provide each other with relevant information that is mutually beneficial for the maintenance of standards. Based on a unique database – that gathers all the litigations concerning environmental accidents judged by the French Supreme Court (Cour de Cassation) from 1956 to 2010 – we conclude that judges heavily rely on prior regulation, especially in cases of causal uncertainty. We argue that particularly in those cases where liability would traditionally be weak, courts tend to rely on breaches of regulation as evidence of increased risk of an activity by the perpetrator. On the other hand, judges can hold regulators liable when regulators did not monitor a regulated plant and this threat provides regulators with incentives to design and to apply stringent standards over risky activities. For these reasons, we conclude that regulation and civil liability should be jointly used to promote smart interdependencies that mitigate civil liability and regulatory failures.