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).