According to Ivana Bonesi Rodrigues, an associate with Machado, Meyer, Sendacz e Opice Advogados, the State’s civil liability may be understood as the State’s legal responsibility to repair damages occasioned to third parties, originated from its functional practice.

The evolution of The Law until the adoption of the Public strict liability principle has evolved in three stages.

The first stage was the untrustworthy theory, in which the State couldn’t be liable for any torts suffered by third parties due to the State’s action or omission.

The first stage gave rise to the theory of the responsibility with fault, which made use of the concepts of fault and malice from Civil Law.

This theory was expressed in two ways:
1°) by dividing bet into act of governments and acts of state;
2°) through the theory of administrative fault or administrative accident;

In the administrative accident or administrative fault theory, also called theory of “faute du service”, the obligation to indemnify was centered in the “services fault”.

The “faute du service” theory is a case law conception of the French State Council, throughout which, the distinction between act of governments and acts of state is left alone and the inquiry of the agent’s fault is disregarded, thus State’s fault is queried. This wag, the personal fault is replaced, in the absence of a service, by the State fault, the “administrative fault”, unique to the Public Service, and most times “anonymous”.

Therefore, even when the plaintiff is clearly identified as the author of the damaging action, this (personal) fault is considered as the outcome of the lack of service, which should but was not able to work properly. This fault then can generate to the State the obligation to indemnify.

Paul Duez(1) names four critical aspects of the theory of lack of service:.
1) the civil servant liability is a primary liability, non vicarious (does not arise from the relationships between represented and representative);
2) the lack of civil service does not hinge on the absence of some agent, but on the flawed operation of the service, from which the damage results;
3) the liability’s generating fact is the fault or absence of the service, and not the service itself, so it can not be mixed-up with the administrative risk theory (strict);
4) it is not just any damage, but the occurrence of a certain degree of imperfection is required, and the damage caused by the service must be examined considering the service, the place and the circumstances in which it takes place.

The binomial lack of service/administration’s fault is then set up. Some authors also named this as the theory of the anonymous fault, since, in some cases, it was impossible to determine which servant was accountable for the mischievous behavior.

At last, the third phase of the evolution took in the theory of the responsibility without fault, or strict, by which the State’s Public civil liability to compensate for the damage caused happens whenever there is a chain of causation between this damage and the Administration’s behavior, without regard to fault.

In order to constitute the Public’s strict liability, it is indispensable that, besides the existence of the damage and the Administration’s behavior, the chain of causation between both of them is fully typified. That is because “the Public Administration’s liability, which is untied to any subjective matter, can be asserted notwithstanding fault’s statement” (2).

Even though the Public’s civil liability is strict, it is not direct, so in the presence of certain circumstances, the State may reject it totally or partially.

The cases of victim’s fault, event of force majeure (in which there is the human’s irresistibility factor in the presence of specific occurrence), for actions of others and flagrant necessity, provide a real hurdle to the characterization of the chain of causation, then, suppressing any claim of compensation.

When Section 37,Par. 6 of the Federal Constitution ascertains that the legal entity of public law and the legal entity of private law utilities will be liable for the damages that their agents cause to others, it recognizes the Public’s strict liability to indemnify for the damages caused.

In order to constitute the strict responsibility adopted by Brazilian Civil Law, it suffices to verify the chain of causation between the course of conduct of the Public Administration and the tort resulted, and the fault does not need to be analyzed.

In this context, according to Yussef Cahali’s teachings, “the strict liability in Brazilian Law, considers that the damage which is able for compensation results from a tort or faulty act from the public agent as well as from a act that, even if is not flawed or revealing of negligence of the administration or of the service, is defined as unfair to the private individuals.

There also are the damages brought about the Administration’s omissions. So, whenever there is a chain of causation between the omission and the damage, i.e., when the Administration should have acted but did not, and this lack of action resulted in losses for the private individual, the State must indemnity him.

José de Aguiar Dias stresses the impossibility of suppressing the Public’s strict liability in the assumption in which the whole Administration does not act according to what is required. According to his understanding, the examples of injuries to private people’s interests we watch every single day, are real expressions of the negligence of the State to its duty of ensuring the social peace. And he asserts: “the State has been discharged in too many cases. It seems to be about the time to say that if the rulers really complied with their duties, the government wouldn’t need to be defended in courts from issues that places it, with no reasonable thought, against the community’s interests. That is the best measure to avoid the risk of impoverishing the public funds, through indemnification.

The text of the Constitution then, must be fully complied with; therefore, according to José Gabriel Pinto Coelho’s experience “the State’s responsibility, does not represent any danger, but would avail itself of a proper conduct from the civil servant and would ensure the citizen’s right in their relations with the Public authorities. The State’s entire responsibility is of prima face importance, and maybe the lack of appliancation of those principles is one of the reasons that most contribute to a less affluent State.

BIBLIOGRAPHY

AGUIAR DIAS, José de. Da responsabilidade civil. 8.a ed., Rio de Janeiro: Forense, 1987, v.2.

BAHIA, Saulo José Casali. Responsabilidade civil do Estado. 1.a ed., Rio de Janeiro: Forense, 1995.

CAHALI, Yussef Said. Responsabilidade civil do Estado. 2.a ed., São Paulo: Malheiros, 1995.

GONÇALVES, Carlos Roberto. Responsabilidade civil. 6.a ed., São Paulo: Saraiva, 1995.

MEIRELLES, Hely Lopes. Direito administrativo brasileiro. 22.a ed., São Paulo: Malheiros, 1997.

PEREIRA, Caio Mário da Silva. Responsabilidade civil. 5.a ed., Rio de Janeiro: Forense, 1994.


Footnotes

1- Paul Duez apud José de Aguiar Dias, Da responsabilidade civil.

2- TJSP, 2.ªC, 9.9.80. RJTJSP 68/145.

3- Responsabilidade civil do Estado, p.77.

4- ob. cit. p. 679/680

5- apud José de Aguiar Dias, ob.cit. p. 680.

Sources:   Revista Consultor Jurídico, January 21, 2004.
Date of insertion:   27/01/2004 - 14:17:28