Institute of Global Law

On 9 November 2004, the First Civil Division of the Cour de cassation rendered a decision on a midwife’s liability towards a patient whose baby was born with a serious disability due to a result of lack of supervision. Unlike the court of appeal, which had decided the case against the midwife, the Cour de cassation held that a salaried midwife who had acted within the remit assigned to her by a private hospital could not be liable towards patients. Disciplinary actions could, however, be taken by the employer.

On 25 November 2004, the Administrative Court of Paris rendered a decision relating to the compensation to be awarded to parents of a disabled child. The court considered that the hospital had committed a serious fault in giving out wrong test results, consequently dissuading the patient to have an abortion. Applying the new 4 March 2002 Act, the Court held that mental distress was the only head of recoverable damage. However, in view of the exceptional seriousness of such a distress, the court granted Euro 220,000 to the parents.

On 18 March 2004, the Second Civil Section of the Cour de cassation held that the intentional infliction of harm required that the defendant had intended to cause the harm that had actually occurred. The Cour de cassation however restated that application of this definition to the facts of each case was left to lower courts.

On 15 January 2004, the Tribunal des affaires de la sécurité sociale de la Manche ordered the French shipbuilding board (Direction des constructions navales) to pay damages to relatives of employees killed in the terrorist attack that took place in Karachi on 8 May 2002 whilst employees were being driven from their hotel to their work site. The Tribunal held that although the main cause of the employees’ death was the terrorist acts, the employer’s conduct still played a necessary part in the accident. Indeed, the employer unreasonably underestimated the risks employees were facing in Pakistan and failed to provide adequate security. According to the Tribunal, the breach of the employer’s duty to ensure that employees were safe constituted an unforgivable fault under article L. 452-1 of the code de la sécurité sociale and consequently justified liability. The French shipbuilding board has decided to lodge an appeal against the decision.

In pursuance to two EU directives – the 8 June 2000 Directive on electronic trade and the 17 July 2002 Directive on the protection of personal data and privacy rights in the context of electronic communication – the Lower House adopted on 8 January 2004 a text aimed at the promotion of public trust in electronic trade. The text seeks to improve consumers’ protection, restrict the use of spamming, and provide more specific rules as to the liability that site providers may incur both in tort and criminal law.

The Second Civil Section of the Cour de cassation on 20 November 2003 refused to quash a Court of appeal’s decision not to order the French producer of tobacco and matches to pay damages in tort for the death of a heavy smoker (caused by lung and tongue cancer). The Cour de cassation rejected the claim both on the grounds of article 1382 of the Code civil (liablity for faulty behaviour) and article 1384 (1) of the Code civil (liability for things). Article 1382 could not be invoked because no faulty behaviour on the defendant’s part could be established – at least for the period prior to the 1976 Act imposing on tobacco producers a duty to warn consumers against harm caused by cigarettes. But proof of inadequate information would not give rise to liablity under article 1382 anyway, owing to the absence of a causal link between the alleged fault and the harm suffered. Indeed, according to the Cour de cassation it is very unlikely that detailed information would have persuaded the plaintiff to stop smoking. Furthemore, the Cour de cassation also denies liability for things under article 1384 (1). When a thing is inherently dangerous or faulty, the producer is deemed to have kept powers of control (“la garde”) on the “structure” of the thing, i.e. on its inner qualities, even after the thing has been sold. But in this case, the Cour de cassation considers that no powers of control were retained by the producer and that all powers of control on the cigarettes sold had been transferred to the purchaser and user, the plaintiff. Consequently, the producer could not be liable as “gardien” under article 1384 (1).

The Second Civil Section of the Cour de cassation reiterated on 20 November 2003 the solution reached on 22 May 1995 whereby a sports association may be held liable in tort on the grounds of article 1384 (1) of the Code civil for the damages caused by its members either to third parties or to other members. The Cour de cassation also confirmed that the person responsible for the injury suffered need not be identified as long as the injury was caused by one of the members and was due to faulty behaviour. In the present case, a rugby player was seriously injured by a kick from one of the other players. The Cour de cassation held that unless the victim proved that the kick was a violation of the rules of the game, no fault could be established.

In two medical liability cases, the First Civil Section of the Cour de cassation ruled that proof of causation between a vaccination against hepatitis B and the occurrence of multiple sclerosis had not – on the ground of the court of appeal’s findings – been established (23.9.2003).