2.2. French Law

Generally,²⁷ French jurists have not been captivated by the analysis of causal theories.²⁸ Nonetheless, an analysis of the case law reveals that the notion of causation plays an extremely important role in circumventing the liability of the administration.²⁹

We have seen that the English courts have adopted a bifurcated approach to the causal enquiry. In French law, the majority of authors have asserted a unitary conception of causation,³⁰ thus denying recourse to a two-stage test of factual and legal causation.³¹ It will be argued that a closer investigation does reveal a nuanced approach which relies upon different causal theories to address different problems of assessing liability.

2.2.1. Orthodox Approach

The basic principle of causation in French administrative law is that the claimant's harm must be direct, which entails, in effect, that there must be (p.169) a direct causal relationship between the defendant's faute and the victim's loss.³² Some cases also refer to the need for the causal link to be certain.³³

Taken literally, the rule of causal directness would seem to reflect the direct consequence theory of causation according to which tortfeasors are liable for only the direct consequences of their acts.³⁴ Yet, most commentators have in fact asserted that the stipulation of causal directness is expressed by the courts through the test of la théorie de la causalité adéquate.³⁵ There is a good deal of consensus on the use of this test by the administrative judiciary.³⁶ But identifying the exact nature of this test has been less easy, particularly as the courts never explicitly stipulate the method used. Consequently, the commentators have been left with the Herculean task of trawling through the mass of case law in order to identify some guiding principles. Their conclusions are not always consistent.³⁷ Chapus asserts that the correct enquiry is whether the defendant's act could ‘in the normal run of things’ be considered as having played a ‘particular’ role in causing the damage.³⁸ Paillet opines that ‘the judge will undertake a selection of the various [potential causes] of the loss in order to accept those which, in the ordinary course of events, must logically have caused [the loss]’.³⁹ Rials sees the test as (p.170) selecting the cause which had the greatest chance of having produced the harm.⁴⁰

The imprecision of these tests no doubt reflects the difficulty faced by doctrinal writers in synthesizing the case law. Some commentators have rejected the idea of any coherent test, concluding that the courts proceed on an ‘empirical’ basis.⁴¹ And indeed, one member of the French administrative judiciary has admitted that ‘this topic is unamenable to all systematization’.⁴² Nonetheless, the common theme in the doctrine is the reference to normality, as expressed in the stipulation that the harm must have followed the defendant's act ‘in the normal course of events’.⁴³ The looseness of the test affords a margin of discretion to the judiciary.⁴⁴ Chapus himself recognizes that the judges combine one part objective reasoning with at least one part intuition: ‘[t]he judicial assessment is not mechanical. It is undertaken with a good deal of freedom, and is influenced by considerations of common sense and subjectivity.’⁴⁵ Deguergue has described this approach as follows: ‘[t]he judiciary, both administrative and ordinary, decide the question whether the occurrence of the loss is a direct consequence of an act by emotion and intuition and not by logical reasoning’.⁴⁶

Academic commentators have remarked that the causal test in French law is often applied stringently in order to reduce the burden of liability falling upon public bodies.⁴⁷ Indeed, the test of causation has been used (p.171) to ward off large liabilities in sensitive areas such as planning,⁴⁸ travaux publics,⁴⁹ tax,⁵⁰ and regulatory activities.⁵¹ There are also examples of the use of causation to reject damages claims for economic loss allegedly stemming from misrepresentations⁵² and for malpractice in the educational sphere.⁵³ And yet, the stance of the courts is not always harsh on causation. In certain situations, a presumption of causation may apply in the injured party's favour,⁵⁴ and where difficulties arise in proving causation, discounted damages are sometimes awarded by means of the lost chance doctrine,⁵⁵ or under the umbrella of troubles dans les conditions d'existence.⁵⁶