X. France

a) Brief Summary of the Facts

3While raw milk cheese (fromage au lait cru) is, for many people, an integral part of the French art de vivre, one must bear in mind that the consumption of dairy products made of unpasteurised milk is not without risk. In the present case, a 15-month-old girl developed severe neurological disorders after eating a piece of raw milk Camembert cheese. The results of the medical analysis showed a specific strain of Escherichia coli bacteria in the girl’s intestine, producing Shiga toxins that attack the human nervous system. A food survey, led by the French Institute for Public Health Surveillance, indicated that other people suffered from the same symptoms after the consumption of raw milk cheese manufactured by the same company. Armed with the conclusions of the experts’ reports, the girl’s parents sued the dairy company for compensatory damages on the basis of product liability, laid out in arts 1245–1245‑17 of the French Civil Code.

b) Judgment of the Court

4After ten years of proceedings, the Nanterre Court of Justice denied damages to the claimant and her family on the grounds that, while the ‘defect’ of the Camembert was established beyond doubt, the dairy company could not have detected the presence of the bacteria during the manufacturing process. Indeed, for the trial judges, the state of scientific and technical knowledge at the time when the dairy product was put into circulation did not enable the manufacturer to discover the defect. The Versailles Court of Appeal confirmed those findings two years later. The claimant challenged the judgment before the Court of Cassation, contesting the recognition of a so-called development risk in the present case.

5In its decision of 5 May 2021, the First Civil Chamber of the Court of Cassation upheld the Court of Appeal’s decision. The judges noted laconically that ‘the Court of Appeal ... was right to conclude that society had to be exempted from liability regarding the girl’s loss’.

c) Commentary^[4]

6French tort law and the 1985 EC Product Liability Directive have always been uneasy bedfellows. It took almost thirteen years for the French parliament to transpose the Directive in the Civil Code and, even after the 1998 transposition act, it needed two European Court of Justice (ECJ) decisions and two acts of amendment to bring the wording of the French provisions in line with the text of the Directive. The causes of the delay and the inaccurate transposition are manyfold and this brief commentary is not the appropriate place to go into all details.^[5]

7One of the most controversial issues during the debate on the transposition of the Product Liability Directive was the necessity of adopting the development risk defence. According to art 15 of the 1985 Product Liability Directive, each Member State was free to decide whether or not to provide in its legislation ‘that the producer shall be liable even if he proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of a defect to be discovered’. After much hesitation, the French lawmakers finally decided to implement this defence, mostly because a different option was seen as a disadvantage for French companies compared with foreign businesses which enjoyed the benefit of that defence.^[6]

8However, until the present case, it was common belief among lawyers that the development risk defence existed only in paper, as there was not a single case since 1998 in which French courts admitted the benefit of the defence, exempting the producer of a defective product from its liability. In fact, every effort had been made by the courts to marginalise the scope of the development risk defence. In particular, the Court of Cassation decided in a landmark case from 2017 that ‘the state of scientific and technical knowledge’ had to be assessed at the time when the current batch of the contested product was put into circulation and not at the time when the product was put on the market for the first time.^[7]

9It is therefore with surprise that French tort law scholars commented the present decision, especially because it seemed to be established that the risk development defence was excluded in cases in which it was a manufacturing defect (défaut de fabrication) that caused the harm and not a design defect (défaut de conception).^[8] It had been argued that producers of defective products were not eligible for the risk development defence in case the manufacturing defect was undetectable, but the producers were aware of its possible occurrence.^[9] By confirming the Court of Appeal’s decision, the Court of Cassation rejects such a restrictive view of the defence.

10Despite this original solution, one should not overstress the significance of the present case, which was not considered important enough to be published in the annual report of the Court of Cassation. Moreover, the First Civil Chamber did not give its opinion on the specific issue of the risk development defence, using a formula (‘the Court of Appeal ... was right to conclude’) that indicates a rather weak control over the legal assessment made by the trial judges.

a) Brief Summary of the Facts

11A handicapped woman was hit by a car when crossing a road in her electric wheelchair, outside a designated crosswalk, in a sparsely lit zone at night. She sued the automobile insurance of the car owner, claiming damages on the ground of the specific liability regime for traffic accidents laid out in the Act of 5 July 1985 (the so-called Badinter Act).

b) Judgment of the Court

12The Aix-en-Provence Court of Appeal decided that, given the victim’s negligence, her right to compensation had to be adjusted and, consequently, the damages reduced to 50 % of the total amount. The victim challenged the decision before the Court of Cassation, arguing that the assimilation of an electric wheelchair to a motor vehicle (which was a prerequisite for taking into account the victim’s contributory fault) was contrary to the French Constitution and, in particular, to her rights and liberties as a disabled person.

13In a 2020 interlocutory decision, the Second Civil Chamber of the Court of Cassation refused to bring the case before the Constitutional Court, considering that, in the absence of well-established case law on this issue, there was no ‘question of constitutionality’ to be settled.^[10] The Court of Cassation then had to rule on the merits of the case and to answer the question whether the user of an electric wheelchair ought to be qualified as the driver of a motor vehicle.

14In the present decision, the Second Civil Chamber quashed the court of appeal decision, holding that ‘an electric wheelchair, which is a medical device designed as a mean of transportation for disabled people, is not a motor vehicle under the Act of 5 July 1985 (the Badinter Act)’. The decision was issued in the light of arts 1, 3 and 4 of the UN Convention on the Rights of Persons with Disabilities (CRPD), which France ratified in 2010.

c) Commentary^[11]

15To understand the importance of this decision, it is essential to recall some of the basic elements of the French liability regime for traffic accidents, enshrined in the Badinter Act.^[12] One facet of the originality of this regime is the limitation of the defences available to tortfeasors and their insurers. Regarding contributory fault, arts 3 to 6 of the Badinter Act make eligibility depend on the nature of the loss for which compensation is demanded and on the legal status of the claimant. When a non-driver claims compensation for personal injury caused by a traffic accident, the sole defence that may be raised is ‘inexcusable fault’ (faute inexcusable) and only to the extent that such fault was the ‘exclusive cause’ (cause exclusive) of the accident.^[13] The protection is even stronger for non-driving victims younger than sixteen, older than seventy or suffering from a disability of 80 % or more, since their compensation is excluded only if they ‘voluntarily sought the harm suffered’.^[14] By contrast, drivers of a motor vehicle who claim damages for a personal injury are given much less protection, as their fault, regardless of its seriousness, limit or even exclude their right to compensation.

16This explains why the legal qualification of an electric wheelchair was crucial in the present case, as the defendant was only eligible to the contributory fault defence if the claimant were qualified as a ‘non-driver’ of a motor vehicle. The category of motor vehicles (véhicules terrestres à moteur), used by the drafters of the Badinter Act, is generally regarded as identical to that mentioned in art L 211-1 of the French Insurance Code (Code des assurances), which sets out the scope of compulsory motor insurance. It is commonly admitted that electric wheelchairs moving faster than walking speed are subject to compulsory insurance.^[15] Yet, the Court of Cassation departs from this synchronicity between insurance law and tort law, holding that, for the purposes of applying the Badinter Act, an electronic wheelchair is not a motor vehicle.

17The reference to the CRPD and to the medical dimension of a wheelchair makes it clear that the approach taken by the Court of Cassation is based mainly on legal policy considerations. One of the key premises of the Badinter Act was that the most vulnerable road users had to be protected from bearing the consequences of their wrongful behaviour. From this perspective, it would have been inconsistent to refuse disabled persons in an electronic wheelchair the benefit of legal provisions drafted to protect vulnerable individuals for the sole reason that they move around in a motorised means of transport. The Court of Cassation’s analysis can thus be seen as a teleological approach to the provisions of the Badinter Act.

18From this perspective, the present decision raises questions about the appropriateness of the specific features of the Badinter Act. One may ask how the courts would assess a case in which a disabled person using an electronic wheelchair caused an accident to a pedestrian.^[16] Denying the quality of a motor vehicle would make awarding compensation much more difficult, as the claimant would not be eligible to the specific strict liability regime designed for traffic accidents, but only to the ordinary liability regimes. More generally, some might see in the decision of 6 May 2021 another illustration of the obsolescence of distinguishing between drivers and non-drivers when it comes to the defences that the automobile insurer may raise against the claimant.^[17]

a) Brief Summary of the Facts

19The shares of a company were held by its manager, his wife and children and by another company. The manager was empowered by the other shareholders to sell their shares, together with his own shares, to a third company. The transfer of all shares was executed in accordance with a protocol of sale, bringing the corporation under the full control of the acquiring company. A few days after the transfer became effective, the manager stepped down from this position, which had not been part of the protocol. Consequently, the acquiring company sued the former shareholders for cancellation of the contract and for damages in compensation of the loss suffered from the resignation of the manager. At a later stage of the procedure, the acquiring company waived its right to invoke the cancellation of the contract, only claiming damages from the former shareholders on the ground of extra-contractual liability (arts 1240 and 1241 Civil Code).

b) Judgment of the Court

20The Paris Court of Appeal granted the acquiring company an amount of € 400,000 in compensation of its economic loss, considering that the former manager had concealed his intent to leave the company. The Court of Appeal qualified this insincerity as a dol, that is an attempt to trick the other party with a view to obtaining consent to a contractual agreement. However, they refused to extend the liability to those shareholders who had only given the manager the mandate to sell their shares, considering that an agent is obliged to execute the mandate given by the principal and that a false representation by the agent may not be invoked against principals without them participating in the fraudulent scheme.

21The Court of Cassation dismissed the acquiring company’s appeal in cassation and decided to uphold the solution adopted by the court of appeal. Sitting in Chambre mixte, the Court of Cassation decided that ‘while principals are contractually liable for the loss caused by the failure to the commitments made by agents within their mandate, fraudulent manoeuvres (manœuvres dolo­sives) committed by agents in the exercise of their mandate do not give rise to the principals’ liability unless the claimant can establish their personal fault’.

c) Commentary^[18]

22In recent years, the liability of principals (mandants) for the fraudulent manoeuvres of their agents (mandataires) created a conflict between different divisions of the Court of Cassation. Whereas the Commercial Chamber and the First Civil Chamber decided that an agent’s manœuvres dolosives could be attributed to the principal,^[19] the Third Civil Chamber has become more hesitant and recently opted for the opposite solution, only holding principals liable in cases in which they were directly involved in the fraudulent tactics.^[20] According to art L 431-5 Code of Judicial Organisation, a new case had thus to come before a Chambre mixte, made up of members taken from all relevant divisions.^[21]

23The issue is indeed complex and reading the Court of Cassation’s decisions reveals that judges feel considerable unease when dealing with fraudulent manoeuvres, which can be both a cause of contract cancellation and a cause of action in extra-contractual liability. In the present case, the Chambre mixte distinguishes clearly between both causes, especially since the claimant waived its right to invoke the cancellation of the contract.

24Indeed, until the present case, it was sometimes suggested that the right to compensation of the tricked contracting party was only a collateral effect of the cancellation of the contract, following the same legal regime as the action en nullité. In this context, it is important to note that a dol constitutes a ground for the invalidity of a contract, whether it was committed by contracting parties or their re­presentatives, a rule that is now explicitly enshrined in art 1138 Civil Code.^[22]

25In the 2021 decision, the Chambre mixte breaks with this solution, considering that the fault of an agent does not necessarily give rise to civil liability of the principal. Reserving the right to sue principals for damages only in cases where their personal fault can be established, the Court of Cassation firmly rejects the idea that agency can lead to the automatic attribution of the agent’s tortious behaviour to the principal. Indeed, the legal mechanism of représenta­tion is known to be limited, under French law, to ‘juridical acts’, that is to contracts or other voluntary commitments, and does not apply to factual behaviour, so-called ‘juridical facts’ (faits juridiques).^[23]

26The Chambre mixte also seems to rule out the possibility of holding the principal liable on the ground of the liability for the acts of others (responsabilité du fait d’autrui). Indeed, an agent cannot be considered as an employee (préposé) under art 1242(5) Civil Code,^[24] as a ‘relationship of préposition’ is required, implying the right of a person to give orders or instructions to other persons as to how to comply with entrusted tasks. This is clearly not the case under an agency contract, since agents are given a certain degree of autonomy to accomplish their tasks.^[25]

a) Brief Summary of the Facts

27After an arthrogram^[26] of his shoulder, a male patient developed a streptococcal infection that could be attributed to this radiological exam. The arthrogram was performed in the office of a radiology centre, situated in the same building as a private clinic. The patient sued the radiologist, the company that operates the radiology centre as well as the clinic for compensation of his personal injury.

b) Judgment of the Court

28This case had already led to a decision of the Court of Cassation on a procedural issue. After a first cassation, the Aix-en-Provence Court of Appeal decided to hold liable the company that operated the radiology centre on the basis of the strict liability regime laid out by art L 1142-1–1 Public Health Code, considering that the company could be qualified as a ‘health establishment, services or organisation’ referred to in this provision. The court of appeal rejected the claim against the clinic, considering that the radiology centre was operated independently, as the cooperation protocol with the clinic did not provide for an exclusivity clause. Aside from this, the patient was referred to the radiology centre by his family doctor who had no relationship whatsoever with the clinic.

29The Court of Cassation quashed the decision on both issues. The First Civil Chamber refused to apply the strict liability regime to the company operating the radiology centre, insisting on its corporate purpose (objet social). In fact, according to the certificate of incorporation (extrait Kbis), the company’s purpose was only the ‘operating, purchasing, selling and leasing of medical imaging and radiotherapy equipment’ but not the undertaking of medical diagnosis (carried out by the radiologists working in the centre on an individual basis), so that it could not be regarded as a ‘health establishment’.

30However, the Court of Cassation also decided that the clinic could indeed be held liable for the infection, as the protocol between the company operating the radiology centre and the clinic suggested more than a mere geographical proximity between both structures. The First Civil Chamber ordered the trial judges to investigate further the provisions of the protocol in order to decide whether the radiology centre could not be qualified as the clinic’s ‘radiology service’.

c) Commentary^[27]

31As has been mentioned in a previous edition of this yearbook,^[28] in 2002 the French legislator enacted the Patients’ Rights and Quality of the Health System Act (Loi relative aux droits des malades et à la qualité du système de santé), which is of utmost importance for the liability of medical practitioners, public hospitals and private clinics.^[29] Due to this reform, art L 1142–1, I(1) Public Health Code provides that health professionals and all ‘establishments, services and organisations in which medical acts of prevention, diagnosis and care are given, shall only be liable in fault’.^[30]

32However, the legislator included an important exception to the fault principle, codifying a case law principle adopted in 1988 by the Conseil d’État (CE) and in 1996 by the Court of Cassation.^[31] According to art L 1142–1, I(2) Public Health Code, ‘health establishments, services and organisations shall be liable for the harm resulting from nosocomial infections, except if they prove the existence of an external cause’. Yet, this strict liability for care-related infections does not apply to health professionals who are working on an individual basis, outside a private clinic or a public hospital.

33The present decision of the Court of Cassation has to be interpreted in the light of this limitation. Most probably, the claimant could not establish the fault of the radiologist who does not fall within the scope of art L 1142–1, I(2) Public Health Code. He had no choice but to sue the company operating the radiology centre and the neighbouring clinic. As the Court of Cassation did not want to hold liable the operating company (that seemed to have no other object than to allow the radiologists to share premises and equipment), the clinic’s strict liability would indeed have been the only way to not leave the patient without (full) compensation. This solution, however, implies that the clinic may be liable for an infection that affects a completely unknown patient, since he was referred by his family doctor.

34Things would have been easier if the legislator had decided in 2002 to adopt strict liability for care-related infections also for independent health professionals. As a commentator has noted, it is not likely that an extension of the current liability regime to doctors would have a serious financial impact on the medical liability insurance market, since the overwhelming majority of ‘nosocomial infections’ occur in hospitals and clinics.^[32]

a) Cour de cassation, Cass civ 2, 11 February 2021, no 19-23525: Bereavement Damages for a Child Conceived before the Death of a Family Member

35Can children who were conceived before and born alive after the accidental death of a family member claim compensation for bereavement, although they never knew the relative in their lifetime? Over the last 15 years, French courts have been shifting their response from a negative to a positive one, as is confirmed by the present case, in which the granddaughter of an individual killed in a knife attack was awarded bereavement damages by the Guarantee Fund for Victims and Other Offences.^[33]

36Until recently, the Court of Cassation refused to compensate the non-pecuniary loss of children who were not born at the time of the death of their relatives, considering that there was no causal link between the tortious act and their moral distress.^[34] In a landmark decision of 2017, the Second Civil Chamber abandoned this principle, attributing a right to compensation to children who were not born, but already conceived, at the time of death.^[35] Behind this new solution is the traditional rule that allows children to claim rights arising out of situations which took place at a time when they were as yet unborn, but already conceived (known as the infans conceptus rule). In November 2020, the same solution was adopted by the Criminal Chamber^[36] and is now well established in the Court of Cassation case law.

37In the present decision, the First Civil Chamber applied this solution for the first time to a case in which the claimant was not the child, but the grandchild of the direct victim, extending the circle of relatives eligible to bereavement damages. There is no legal principle standing in the way of this extension, which is consistent with the infans conceptus rule and the rules on the assessment of damages of indirect victims. However, the present decision illustrates the rather arbitrary delimitation of bereavement damages, as children who are conceived shortly after the death of a relative are categorically excluded from the right to compensation, as the Court of Cassation confirmed in two cases one month after the present decision.^[37]

b) Cour de cassation, Cass civ 2, 6 May 2021, nos 19-23173 and 20-16428: Professional Impact (incidence professionnelle) of the Personal Injury and Social Devaluation of the Claimant

38According to the nomenclature Dintilhac, which lists the recoverablity of items of loss in personal injury litigation,^[38] claimants can obtain damages not only for loss of income, but also for the ‘professional impact’ (incidence professionnelle) of their injury. This generally covers the loss of retirement income and the loss related to denied professional advancements, but extends also to non-pecuniary losses, such as the lack of professional satisfaction, an increased arduousness of work or the ‘devaluation’ of the claimant on the job market.

39In this context, the situation of a personal injury victim without any prospect whatsoever of resuming a professional activity was a specific one, since the Court of Cassation decided in 2018 that damages for the loss of income could not be cumulated with damages for the ‘professional impact’ of an injury.^[39] In the present decision, the Second Civil Chamber rectified this anomaly, considering that the impossibility of carrying on occupations could imply a certain ‘social devaluation’ (dévalorisation sociale), which had to be compensated under the label of incidence professionnelle.

c) Cour de cassation, Cass civ 1, 16 September 2021, no 20-10712: Assessment of the Personal Injury of a Second-Year Student; Loss of the Chance to Engage in a Professional Activity

40It is well known among comparative tort lawyers that the French civil liability rules attach particular importance to the doctrine of ‘loss of a chance’.^[40] Indeed, the scope of compensation under French law embraces both future losses and perte d’une chance, which can be defined as the loss of a positive eventuality, that is the opportunity either to realise a benefit or to avoid a loss. In the field of personal injury litigation, the ‘loss of a chance’ doctrine is widely used, for example in cases in which claimants did not have any professional income due to their status as students or pupils, but could reasonably argue that they would have income in the future.^[41]

41The present case illustrates the difficulties arising from this concept. A 20-year-old student in psychology was involved in a traffic accident, her personal injury preventing her from carrying out the professional activity she aspired to for a long time, that is working as a clinical psychologist. She thus claimed compensation of her loss of (future) income, qualifying it as a future loss rather than a loss of a chance.

42The Court of Cassation confirmed the analysis of the trial judges who considered that the prospect of a professional future as a clinical psychologist was not a certain one and that, for the sake of the assessment of damages, a probabilistic analysis had to be undertaken in the light of the loss of a chance doctrine. In particular, the First Civil Chamber insisted on taking into account all hazards when ‘imagining’ the professional life the victim could have had without the accident. In the present decision, the ‘hazard’ rate was established at 60 %, allowing the claimant to be awarded damages for a substantial share of the income which an average clinical psychologist would have earned during her career.