(P.106) 3.2. Graded Standards of Fault in French Administrative Law

The illegality-fault parity has often dominated the discussion of French administrative liability. A topic which has been cast in its shadow is the notion of faute lourde. The existence, extent, and justification for graded levels of fault is an important element of the overall picture of administrative liability.

The standard of faute de service in French administrative law is not a homogenous one. In certain areas of state activity, the administrative courts have traditionally required a higher standard of fault, known as faute lourde, rather than the basic element of faute simple. This section aims to analyse the application of faute lourde in French law.

In an initial section, we will examine the spheres of administrative activity in which faute lourde has featured as a precondition of liability. An attempt will then be made, on the basis of this survey, to present the defining elements of faute lourde. The justifications of a dual standard of fault liability will then be explicated. Finally, we will look to the future of faute lourde based upon the recent case law developments and accompanying doctrinal debate. Throughout this section, comparative law remarks will be made.

3.2.1. The Notion of Faute Lourde in French Administrative Law

Over time, the French administrative courts have applied a variety of standards of breach, covering the concepts of faute grave³⁵⁹ faute manifeste et d'une particulière gravité,³⁶⁰ faute d'une gravité exceptionnelle,³⁶¹ and faute lourde. Amongst this patchwork of standards of fault, Husson-Chiffre in 1962³⁶² is commonly viewed as a watershed, after which a dual standard of fault emerged, covering just faute lourde and faute simple.³⁶³ We will look at the various spheres in which faute lourde has been applied.

3.2.1.1. Medical Sphere

Originally, damages claims in respect of loss caused by medical intervention in the public sector were subject to a uniform precondition of faute lourde.³⁶⁴ This high standard of fault ensured that medical progress was not prevented by the fear of financial liability.³⁶⁵

(p.107) In recent times, the courts' attitude to medical liability has been increasingly dominated by the desire to protect patients. Inroads were thus made into this requirement of gross fault. First, the hurdle of faute lourde was restricted to injuries caused by medical acts taken by a doctor or by a strictly supervised paramedic.³⁶⁶ A patient needed only show a faute simple to gain damages for injuries caused by other medical activities (actes de soin).³⁶⁷ A tendency also appeared in the case law to attribute a patient's injury to the disorganization of the medical service, which required only proof of a faute simple that caused loss.³⁶⁸

However, the continued application of faute lourde for damages actions impugning medical acts fuelled suspicion that the courts were being lenient towards doctors in the public sector:³⁶⁹ a more liberal regime of fault seemingly prevailed in the private sector.³⁷⁰ The administrative courts responded to these concerns in the famous case of Epoux V.³⁷¹ In an action concerning a series of medical errors during a Caesarean birth, the Conseil d'Etat applied the notion of ‘a medical fault capable of incurring the liability of the hospital’.³⁷² Henceforth, a linguistically homogenous level of breach—faute simple—was applicable in administrative law cases in the medical sphere.³⁷³

Commentators have recognized that there has been progress in favour of medical claimants, but note has also been made of some judicial caution.³⁷⁴ Chapus specifically argues that it is still harder to show fault deriving from a doctor's medical act than it is to show fault in the organization or running of the hospital service.³⁷⁵ CG Legal played down the potential effect of the shift to faute simple in his conclusions in the case of Epoux V: ‘[i]n practical terms the change ought, above all, to allow certain anomalies to be rectified without necessarily causing a very large increase (p.108) in the number of [damages] awards against medical establishments’.³⁷⁶ At this juncture, reference should also be made to the new French medical compensation system,³⁷⁷ which we will examine in greater depth in a later chapter.³⁷⁸