L'anormalité du dommage : une notion juridique stabilisée ?

Medical liability, in accordance with liability law, is traditionally based on the triad of operative event, causal link and damage. The emergence of systems of no-fault liability gave rise to the concept of abnormal damage, which is a necessary condition for liability. In terms of medical liability, in 1958 the administrative courts ruled that this criterion was necessary in order to compensate medical damage in situations of liability for alleged misconduct, then from 1990 in situations of no-fault liability. This condition was extended to compensate medical hazard from 1993. The Court of Cassation refused to adopt a no-fault liability system, leading to unequal treatment. Thus, the law of March 4, 2002 created a system which, in situations of no-fault liability, allowed national solidarity to be engaged in the event of abnormal damage. However, the legislation did not clearly set out the character of this abnormality, and jurisprudential hesitation over this criterion has made compensation uncertain. In 2014, the administrative and judicial courts clarified their jurisprudence by adopting a more specific definition of this criterion of abnormality. However, a very restrictive view taken of this criterion means that many victims now risk being excluded from the scope of compensation. As such, this jurisprudential stability is perhaps but temporary.