The French Conseil d’Etat authorises the development of an algorithm for the assessment of damages in personal injury cases

This project of an algorithm to be used as a decision-making tool by French judges in assessment of damages for personal injury cases was originally launched in March 2020 by the French Ministry of Justice. A decree of 27 March 2020 allowed the development of DataJust, an artificial intelligence system designed to extract and exploit data regarding the allowance of damages in personal injury cases. The operation of this algorithm consists of specifically identifying the amounts claimed by the parties in this type of litigation, as well as the amounts awarded to the victims by both out-of-court settlement as well as by the courts themselves. The main goal stated by the Ministry is to ultimately build a frame of reference for damages, available to judges, lawyers, insurers, and victims of personal injuries, and thus to guarantee equal treatment of such cases.

But this project has been heavily criticised, including by the CNB (the French Bars Organisation) and by several associations. Critics consider that the use of an algorithm in the resolution of such disputes is a violation of the principles of full compensation and of individual appreciation of damages. Concerns were also raised regarding the confidentiality of the data collected and the risk of violation of privacy this algorithm could generate, as the data collected includes personal information about the victims such as their names, dates of birth and addresses, but more importantly very sensitive data regarding their medical history, injuries suffered, and treatment received following these injuries.

Therefore, the decree from 27 March 2020 was the subject of an appeal to the Conseil d’État (the highest administrative jurisdiction in France) on the ground of abuse of authority. In a recent decision dated 30 December 2021, the Conseil d’État dismissed the appeal and therefore authorised the development of DataJust. The court re-iterated in its decision the four main objectives of the algorithm, justifying its development:

• To evaluate public policies regarding civil or administrative liability.
• To elaborate a frame of reference for damages in personal injury cases.
• To inform the parties of the amount that victims can be awarded and therefore promote amicable dispute resolution.
• To better inform the judges called upon to rule on compensation claims.

The Conseil d’État also made clear in its decision that the project was for the moment only at the experimental stage. Furthermore, in order to address the concerns raised by the applicants regarding the protection of personal data, the Conseil d’État does not consider the collection of such data to be disproportionate to the aim pursued, especially as the data is first anonymised.

The development of this algorithm is part of a general movement to develop predictive justice in the field of personal injury compensation. Private initiatives, such as the algorithm developed by the legaltech company Quantum, are already emerging in France and offer personal injury calculation services for legal professionals. These initiatives highlight the increasing use of predictive justice and decision support tools in the legal field, particularly in personal injury cases. It is therefore important to take a close interest and to follow the development of these projects, which are likely to grow in importance in the years to come.