3.3. Presumptions of Fault

At this juncture, it is also appropriate to turn our attention to evidential matters. In French administrative law, the claimant bears the burden of proving the elements of a damages action, including the requisite level of fault.⁴⁸³ Failure to satisfy the burden of proof will result in the rejection of the claim.⁴⁸⁴ This rule of evidence places a formidable burden upon an aggrieved individual. However, the administrative judiciary has provided a palliative to the apparent severity of the actori incumbit probatio rule by creating legal presumptions in order to aid litigants. There are (p.121) a number of areas in which the administrative courts have developed legal presumptions to aid the claimant in proving his claim.⁴⁸⁵ Two main areas of administrative activity, however, stand out in this respect: public works and the medical sphere.

The most frequent use of presumptions is to establish liability for injuries caused by travaux publics.⁴⁸⁶ A presumption of fault arises whenever loss is inflicted upon users of man-made immovable structures used in the public interest. Indeed, in order to recover damages, the claimant need show only that his or her loss was caused by the travaux or ouvrages publics, and it will be presumed that the relevant public body was at fault for allowing the immovable object concerned to fall into a state of disrepair.⁴⁸⁷

This favourable approach is subject to some reservations. The presumption may be rebutted if the public authority is able to show that it had taken reasonable steps to protect the public from damage.⁴⁸⁸ Significantly, the defendant public body can reduce or even exclude liability by showing that the victim's contributory fault played a role in causing the damage. We shall see in a later chapter that contributory fault has done much to dilute the beneficial effects of presumptions of fault.⁴⁸⁹

The courts have also created legal presumptions in the medical sphere.⁴⁹⁰ The clearest example of such a presumption is the case of patients who have sustained serious and long-term disability after undergoing routine medical treatment. The disparity between the minor nature of the medical intervention and the gravity of the injury sustained by the patient has led to the creation of a presumption of medical fault.⁴⁹¹ Gradually, the case law has developed from cases concerning minor or routine medical intervention to encompass a wider sphere of factual circumstances. Now, the courts apply a presumption of faute whenever there is a disparity between the patient's resultant condition and either the ailment for which he or she was treated or the routine nature of that treatment.⁴⁹² This line of case law is certainly very favourable to injured (p.122) victims. Indeed, on some occasions it would seem that the defendant public authorities can do little to overturn the presumptions of faute so created.⁴⁹³ Indeed, this approach has been taken up and extended by the radical medical compensation system⁴⁹⁴ which has recently been introduced in France by means of a statute of 4 March 2002.⁴⁹⁵ This law has inter alia ushered in a regime of no-fault liability for nosocomial (hospital-acquired) infections, which is widely seen as an extension of the regime of presumptions of fault in medical cases.⁴⁹⁶

There are signs that this liberal strand of jurisprudence is developing beyond the confines of medical malpractice. Presumptions of fault have been applied in the social welfare sphere.⁴⁹⁷ It is, however, difficult to trace this with clarity as the courts do not explicitly state when they have resorted to presumptions of fault.