2.3. Miscellaneous Categories of No-fault Liability

In this section, we will look at the remaining types of no-fault liability which have eluded classification within the twin theories of risk and égalité. These include the oldest member of the family of no-fault liability, loss arising from public works, and the newest addition, injury sustained during medical intervention. We will then briefly look at the statutory regimes of no-fault liability.

2.3.1. Loss Arising From Public Works

We have seen that a presumption of faute de service arises whenever the poor state of public works or buildings results in injury or loss to their users.¹²⁶ For those who are not users, but are merely third parties and have no prior connection with the ouvrage or travail public, then an even more favourable regime applies. It has long been held that third parties who have sustained loss due to ouvrages or travaux publics may recover damages without the need to aver fault.¹²⁷ When a chimney fire in a public building spread to neighbouring property, the owners, who were in no way (other than geographically) connected with the ouvrage public, could bring an action on the basis of no-fault liability.¹²⁸ Other cases provide further illustrations. Liability arose for property damage caused to a company's buildings by floods following the breach of the Malpasset dam,¹²⁹ and for damage to a car when ice and snow fell from the roof of the Courchevel post office.¹³⁰ Compensation has also been gained for: the reduction in business when a new motorway completely prevented road access to a service station;¹³¹ the effect of motorway lighting on plants in (p.151) a chrysanthemum nursery;¹³² and the noise pollution suffered by those living next to a military airport.¹³³

Financial liability of the state in these circumstances may be reduced or excluded on the basis of causation, and we shall see that the contributory fault of the victim invariably offsets the benefit of not having to show fault.¹³⁴ In some cases, it is also necessary to show that the loss suffered is abnormal and special, characteristics which were defined in the previous section covering breach of égalité. It is difficult to determine exactly when this additional requirement must be satisfied, but it would seem that it applies to claims for loss which is caused by the normal working of the ouvrage or travail public.¹³⁵

2.3.2. Facilitating Reparation in the Medical Sphere

Traditionally, liability without fault played no role in the administrative case law concerning medical malpractice.¹³⁶ In 1990 this was all changed by the seminal case of Gomez.¹³⁷ This decision has given rise to a rule whereby liability is incurred when novel medical techniques cause a patient unanticipated side effects of exceptional gravity. The conditions of this case law are fairly tightly drawn: the side effects must have been unforeseeable and ultimately very serious (paraplegia in Gomez); and given the pre-existing state of the patient, the particular treatment should not have been the sole option open to the medics.¹³⁸

Having introduced no-fault liability into the medical sphere, the courts soon extended its reach.¹³⁹ In Bianchi, it was held that no-fault liability will arise when a medical act which is necessary for the treatment or diagnosis of a sick person causes extremely serious side effects which are unconnected to the pre-existing illness of the patient.¹⁴⁰ Unlike in the Gomez case law, the risk of the ultimate injury must be known at (p.152) the time of treatment, but the chance of it occurring to that particular patient must have been very small.¹⁴¹

The conditions as stipulated in Bianchi are again restrictive.¹⁴² A number of claims on similar lines have failed for the following reasons:¹⁴³ the risk of the side effect was not small enough;¹⁴⁴ the gravity of the injury attributable to the medical act was not exceptionally serious;¹⁴⁵ and the resultant injury was in reality a consequence of the pre-existing illness.¹⁴⁶ Moreover, this case law can apply only to one-off injuries,¹⁴⁷ thus excluding claims which are part and parcel of a series of similarly caused injuries such as contamination by HIV-infected blood.¹⁴⁸

The number of successful claims under this head of no-fault liability is in effect limited by the fact that the risk of the resultant condition has to be very small (for instance 0.04–0.06 per cent in Bianchi¹⁴⁹). Nonetheless, in the short time since Bianchi, and despite the restrictive conditions,¹⁵⁰ a number of successful claims have been made.¹⁵¹

This head of no-fault liability has however been affected by recent legislation. A new and radical medical compensation system has recently been introduced into French law by means of a statute of 4 March 2002,¹⁵² (p.153) which we will examine in greater depth in a later chapter.¹⁵³ This legislation unifies the rules governing medical liability in public and private law, and explicitly states that medical liability is henceforth premised upon a fault-based regime,¹⁵⁴ except in two situations.¹⁵⁵ A regime of no-fault liability has been ushered in for nosocomial (hospital-acquired) infections under which the responsible institution will be held liable unless it disproves causation,¹⁵⁶ and no-fault liability is maintained for loss caused by defective health products (produits de santé).¹⁵⁷ Moreover, a broader no-fault compensation scheme has also been created, based on ‘solidarité nationale’ and funded by the social security system. Under this scheme, reparation will be provided for the consequences of a medical accident, iatrogenic infection, or nosocomial infection where an injury of a serious nature has been ‘directly caused’ by a medical act of prevention, care, or diagnosis.¹⁵⁸