McGill Law Journal Revue de droit de McGill
RISKS AND UNCERTAINTIES OF SCIENTIFIC
INNOVATIONS IN FRENCH LIABILITY LAW: BETWEEN
RADICAL DEPARTURE AND CONTINUITY
Etienne Vergs*
The author investigates changes in French
liability law that have occurred since the end of
the nineteenth century as a result of innovation
in science and technology and, in particular, of
the risks and uncertainties attached to this
phenomenon. This text explores the extent to
which scientific and technological innovation
has influenced legal innovation in the field of
civil liability. The author seeks to address
whether science- and technology-based legal de-
velopments resulted in radical departures from
the general principles of civil liability, or rather
take place within a continued evolution of the
law. This study demonstrates that the impact of
scientific and technological innovation on liabil-
ity is ambivalent; changes in the French law of
civil liability have constituted both a radical de-
parture and a continuity of orthodox practice.
Lobjectif de cette tude est de mesurer
linfluence des sciences et technologies sur les
volutions du droit de la responsabilit en
France depuis la premire rvolution indus-
trielle jusqu nos jours. Cet article tudie com-
ment le droit de la responsabilit a ragi face
aux nouveaux problmes poss par les sciences
et
il
sinterroge sur le fait de savoir si les innova-
tions scientifiques ont provoqu des ruptures
radicales dans le droit de la responsabilit ou si
celui-ci a pu sadapter en appliquant ses prin-
cipes gnraux des problmes nouveaux.
Ltude montre que les deux phnomnes peu-
vent tre observs (rupture et continuit).
technologies. Plus prcisment,
les
* Professor at the University of Grenoble, member of the Institut universitaire de France.
Citation: (2014) 59:4 McGill LJ 889 Rfrence : (2014) 59 : 4 RD McGill 889
Etienne Vergs 2014
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Introduction
I.
The Factual Bases of Liability (faits gnrateurs)
A. Continuity and Radical Departure in the Application
of the General Principles of Civil Liability
1. Changes to the General Principles of Civil Liability
a. Fault-based Liability
b. Liability for Damage Caused by Things in Ones
in Response to Innovation
Charge
2. Adjustment of the General Principles of Civil Liability
to the Specific Features of Scientific and Technological
Innnovation
a. Changes to Gross Negligence
b. Separation of Custody of the Thing
B. Departure in the Development of Special Liability Systems
1. Nuclear Energy
2. Space Activities
3. Medical Activities
4. Environmental Damage
II.
Injury for which Compensation Can Be Claimed
A. New Types of Injury
B. Injury Forming an Exception to the General Principles of
Civil Liability
III.
Causal Link
Conclusion
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
891
Introduction
A fundamental feature of the fields of science and technology is inno-
vation.1 Innovation generates the unknown, and creates risky situations
and uncertainty. These risks and uncertainties have caused some of the
most significant changes in French civil liability law since the end of the
nineteenth century.2 The central question consequently becomes, to what
extent does this innovation in science and technology create new devel-
opments in French liability law? More precisely, the purpose of this paper
is to determine whether changes in the law of civil liability influenced by
scientific innovations have translated into radical departures from gen-
eral principles of civil liability3 or, rather, have formed part of a continued
evolution of these general principles.4
To answer this question, this article will analyze French liability law
from a historical perspective, presenting an overview of this area of law. It
will begin from the first pre-eminent case resulting from a technological
accident (the Teffaine ruling of 1896) and will finish with the most recent
rulings handed down in the areas of medical and environmental disputes.
From a methodological perspective, this article will not scrutinize each le-
gal mechanism in great detail. Rather, it will review a select group of
momentous laws and precedents chosen for their significance and im-
portance. In this way, it will be possible to present an overview of the sub-
ject in a comprehensive manner.5 Taking as a baseline these notable ex-
amples, this article will show that technological and scientific innovation
has not always led to legal revolutions.6 The influence of science and tech-
1 In this study, science and technology includes scientific research activities (such as
medical research), technological activities (such as industrial, space, nuclear activities),
technical procedures (such as medical procedures), and technological objects (such as
computers, chemical products, hydrocarbons, or GMOs).
2 On the influence of risk theory, see e.g. Philippe Brun, Responsabilit civile extracon-
tractuelle, 2d ed (Paris: LexisNexis, 2009), n 153.
3 Such as the changes to the grounds of liability, appearance of new principles.
4 For instance using existing legal mechanisms and adapting them to new situations.
5 This article focuses only on those rulings that have set precedent. Otherwise, the article
would become tied up in detailing sometimes voluminous case law where the applied
solution is found in the precedent.
6 The choice of a comprehensive approach is justified by the fact that numerous publica-
tions have already been published on more specific subjects in French civil law. For
example, causation has already been the subject of two influential doctoral theses in
France: Christophe Quzel-Ambrunaz, Essai sur la causalit en droit de la responsabili-
t civile (Paris: Dalloz, 2010); Florence Gsell-Macrez, Recherches sur la notion de causa-
lit (doctoral thesis, Universit Paris 1, 2005) [unpublished]. Special civil liability re-
gimes linked to science and technology have also been the object of extensive studies:
see e.g. Jean-Sbastien Borghetti, La responsabilit du fait des produits: tude de droit
compar (Paris: Librairie Gnrale de Droit et de Jurisprudence, 2004); Laurent
892 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
nology on French civil liability has resulted in both disruption and conti-
nuity in the system.
This observation may seem paradoxical, but it is illustrated in one of
the most famous rulings of French civil liabilitythe Teffaine decision.
This ruling was the first important legal innovation in the area of liability
law.7 In this case, the explosion of a steam machine on a towboat killed a
mechanic. The Cour de cassation attributed the cause of the accident to a
structural defect. The trial and appeal courts found that a faulty weld-
ing joint had caused the explosion. This case illustrates the link between
technological advancement and uncertainty, as it was not possible to
prove that the accident had been caused by unintentional fault.
To understand the significance of this decision, it is important to note
that at the time of the Teffaine ruling, the notion of fault constituted both
the legal and philosophical foundation of civil liability. The French Code
civil, promulgated in 1804, established a general principle of liability for
fault. This regime corresponds to a moralistic philosophy of liability.8 This
general principle is maintained in the current Code civil at article 1382.
In conjunction with this general principle, article 1384 of the Code civil
contains several specific regimes of liability. In Teffaine, the Cour de cas-
sation used paragraph 19 of article 1384 to create a new strict liability re-
gime. This decision represents both a departure from and continuity with
the general principles of civil liability. The departure is caused by the cre-
ation of a strict liability regime10 that deviates from the general principle
of fault-based liability found in article 1382 of the Code civil. However, the
new legal rule created in Teffaine took its source from a forgotten para-
Neyret, Atteintes au vivant et responsabilit civile (Paris: Librairie Gnrale de Droit et
de Jurisprudence, 2006). Additionally, the precautionary principle has been studied in
the authoritative thesis by Mathilde Boutonnet, Le principe de prcaution en droit de la
responsabilit civile (Paris: Librairie Gnrale de Droit et de Jurisprudence, 2005) [Bou-
tonnet, Prcaution]. One such French civil law concept which characterizes a recent in-
novation is la rsponsabilit prventative (preventive liability): see Cyril Sintez, La
sanction prventive en droit de la responsabilit civile: Contribution la thorie de
linterprtation et de la mise en effet des normes (Paris: Dalloz, 2011). In contrast, no
comprehensive review has been carried out on the links between scientific innovation,
technology, and civil liability law in the area of French civil law, which justifies this ar-
ticles selected approach.
7 Cass civ 1re, 16 June 1896, (1897) DP I 433 (Annotation R Saleilles).
8 See Genevive Viney, Trait de droit civil: Introduction la responsabilit, 3d ed (Paris:
Librairie Gnrale de Droit et de Jurisprudence, 2008) at 2.
9 One is responsible not only for the injury caused by ones own actions, but also for that
which is caused by the actions of entities for which one is responsible or things in ones
custody [translated by author].
10 This departure would not take final shape until the Jandheur ruling: see Cass Ch r-
un, 13 February 1930, (1930) Sem Jur 271.
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
893
graph of the Code civil. In relying on the Code, the Cour de cassation gave
this new regime a certain degree of continuity.
Following the Teffaine decision, major legislative developments dealt
with liability associated with science and technology. French legislation
created various liability regimes in a wide variety of fields: aircraft opera-
tors (1924), damage caused by cable cars (1941), compulsory vaccination
(1964), nuclear energy (1965 and 1968), hydrocarbon pollution (1977),
highway accidents (1985), biomedical research (1988), defective products
(1998), medical liability (2002), genetically modified organisms (2008), en-
vironmental liability (2008), and nuclear testing (2010).11 The develop-
ment of special statutes was marked by an increased number of strict lia-
bility cases, the appearance of new types of injury, and the recourse to
presumptions of causality; each of these features will be explored below.
Since the 1980s, France has witnessed new trends in liability under
the influence of a number of health and environmental controversies that
provoked a public reaction: contaminated blood (HIV and hepatitis C,
which involved suppliers and national solidarity), diethylstilboestrol
11 Loi du 31 mai 1924 relative la navigation aerienne, JO, 3 June 1924, 5046; Loi no 2621
du 8 juillet 1941 tablissant une sevitude de survol au profit des tlfriques, JO, 27 Au-
gust 1941, 3614; Loi no 64-643 du 1er juillet 1964 relative la vaccination antipoliomy-
litique obligatoire et la rpression des infractions certaines dispositions du code de la
sant publique, JO, 2 July 1964, 5762; Loi no 65-956 du 12 novembre 1965 sur la respon-
sabilit civile des exploitants de navires nuclaires, JO, 13 November 1965, 9996; Loi no
68-943 du 30 octobre 1968 relative la responsabilit civile dans le domaine de lnergie
nuclaire, JO, 31 October 1968, 10195; Loi no 77-530 du 26 mai 1977 relative la res-
ponsabilit civile et l’obligation d’assurance des propritaires de navires pour les
dommages rsultant de la pollution par les hydrocarbures, JO, 27 May 1977, 2993; Loi
n 85-677 du 5 juillet 1985 tendant lamlioration de la situation des victimes
daccidents de la circulation et lacclration des procdures dindemnisation, JO, 6 Ju-
ly 1985, 7584; Loi n 88-1138 du 20 dcembre 1988 relative la protection des personnes
qui se prtent des recherches biomdicales, JO, 22 December 1988, 16032; Loi n 98-
389 du 19 mai 1998 sur la responsabilit du fait des produits dfectueux, JO, 21 May
1998, 7744; Loi n 2002-303 du 4 mars 2002 relative aux droits des malades et la qua-
lit du systme de sant, JO, 5 March 2002, 4118; Loi no 2008-595 du 25 juin 2008 rela-
tive aux organismes gntiquement modifis, JO, 26 June 2008; Loi no 2008-757 du 1er
aot 2008 relative la responsabilit environnementale et diverses dispositions
dadaptation au droit communautaire dans le domaine de lenvironnement, JO, 2 Au-
gust 2008; Loi no 2010-2 du 5 janvier 2010 relative la reconnaissance et
lindemnisation des victimes des essais nuclaires franais, JO, 6 January 2010.
For this study, the domains of science and technology have been selected where a
technologically innovative tooland not human activityis the determining factor of
liability. For this reason, the law applicable to road traffic accidents is not studied here,
because human behavior tends to be their primary cause. For the same reason, civil lia-
bility suits linked to information technology tools will not be outlined here, as they are
linked to the law of digital piracy, invasion of privacy, or libel. These are related to hu-
man behaviour where technology has been intentionally misused by a human. In these
cases, science and technology cannot be considered to be the determining factor of liability.
894 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
(DES, which involved producers), asbestos (which involved employers,
state, custodians of the thing, and national solidarity), growth hormone
(which involved producers), nosocomial infections (which involved health
institutions and national solidarity), multiple sclerosis related to vaccina-
tion against hepatitis B (which involved producers), waves (relay anten-
nas/high tension electric lines, which involved GSM operators or electrici-
ty producer), oil spills (Erika case 2012, which involved producer and
charter company), and industrial accidents (AZF Toulouse plant case
2012, which involved the operator).
Some of these cases were decided under the general principles of civil
liability. For others, the courts relied on special liability regimes. The
commonality between these decisions is that they created changes in civil
liability rules, whether they concern the factual bases of liability (faits g-
nrateurssee Part I below), the injury (Part II), or the chain of causation
(Part III).
I. The Factual Bases of Liability (faits gnrateurs)
Since the development of a general principle of strict liability at the
turn of the twentieth century, classic civil liability as it applies to scien-
tific and technological innovation has included two distinct systems: liabil-
ity for ones own actions (fault-based liability)12 and liability for injury
caused by things in ones charge (strict liability).13 An analysis of the ju-
risprudence demonstrates the dual phenomenon of continuity with and
radical departure from general principles of civil liability (see Subsection
A, below). Conversely, specific legislation has developed in one direction
that of an increase in strict liability regimes (see Subsection B, below).
A. Continuity and Radical Departure in the Application of the General
Principles of Civil Liability
1. Changes to the General Principles of Civil Liability in Response to Inno-
vation
a. Fault-based Liability
Liability for ones own actions (fault-based liability) is the principal re-
gime of French civil law, originating in the 1804 Code civil. Even though
this code was conceived in the nineteenth century, it is still adaptable to
12 Arts 138283 C civ [translated by author].
13 Art 1384, para 1, C civ [translated by author].
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
895
the specific features of scientific and technological innovation. In this field
dominated by risk, the duties of vigilance are wide and varied. Scientists
must be aware of the risks and must act to limit negative outcomes. The
requirement for scientific vigilance within the fault-based regime is illus-
trated by two major rulings handed down by the Cour de cassation in
2006 in the Distilbne decision.14 In France, until the 1970s, the industrial
firm UCB Pharma produced a drug (Distilbne) to prevent premature
births and spontaneous abortions. However, the use of this drug by preg-
nant women was proven to cause cancer in their female offspring later in
life. Two decisions of the Cour de cassation determined that the drug
manufacturer had knowledge of this danger. Scientific literature had been
highlighting the greater risk of cancer correlated with Distilbne use since
the 1950s. The Cour de cassation determined that UCB Pharma had
failed in its duty of vigilance by not taking precautionary measures in
the light of scientifically known and identified risks.
In handing down these two decisions, the Cour de cassation imposed a
general duty of vigilance on the pharmaceutical industry. Consequently,
an omission by an industrial firm in light of a known risk became classi-
fied as a civil wrong. This solution falls within the continuity of the gen-
eral principles of civil liability, which accept that an omission may consti-
tute a fault.15
Furthermore, the states liability for fault by omission was used again
in four 2004 rulings concerning human contact with asbestos.16 In these
decisions, the French Conseil dtat (French Administrative Court) found
the state at fault for failing to prevent risks.17 Employees who developed
cancer associated with exposure to asbestos in their workplace accused
the state of not having taken the necessary measures to prohibit this
harmful substance. The Conseil dtat declared:
The public authorities are responsible for preventing occupational
hazards and to this end must keep informed of the dangers that
workers may face in the context of their occupational activity, con-
sidering chiefly the products and substances they handle or with
which they come into contact, and to take the most appropriate
measures, in the state of scientific knowledge, if necessary using ad-
14 Cass civ 1re , 7 March 2006, (2006) Bull civ I 131, No 143 [Distilbne].
15 This solution had been accepted in Branly: Cass civ, 27 February 1951, (1951) RS Jur I
158.
16 This is a case of official liability.
17 CE, 3 March 2004, Ministre de lemploi et de la solidarit, (2004) 241151, 241152,
241150 [translated by author].
896 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
ditional studies or investigations, to limit and if possible eliminate
these dangers.18
Therefore, in scientific and technological innovation matters, the state is
subject to a twofold obligation: first, to assess the harmfulness of the sub-
stances present in its territory, and second, to institute measures to limit
or prohibit these substances in accordance with the known risk. The dan-
gers of asbestos have been known since the early twentieth century. Ill-
nesses attributed to asbestos exposure have been listed among occupa-
tional illnesses since 1945. In light of this knowledge, the French State
committed a fault of omission.
The asbestos and the Distilbne decisions show that the conventional
principle of fault-based liability has adapted to cases involving accidents
associated with scientific and technological innovations. Fault is a suffi-
ciently flexible concept for courts to apply orthodox legal solutions without
the need for recourse to special liability regimes. However, this notion of
fault could change more significantly in the future if it is studied in legal
scholarship. In this manner, more researchers are beginning to broach the
idea of introducing the concept of precaution into civil liability law.19
Thus, some academics have raised the notion that fault can result not on-
ly from negligence due to a known risk, but also from failure to deal with
an unknown risk. This faute de prcaution (precautionary fault) might
arise, for example, from the fact that a product is placed on the market
without sufficient scientific tests being carried out to ensure that it is
harmless.20 The practical application of this concept has been rare in
French jurisprudenceeven if a detailed study of litigation shows that
certain trial and appeal courts appear to be tying the concepts of fault and
the precautionary principle together.21 The precautionary principle has
not yet resulted in any noteworthy changes in the factual bases of liabil-
ity, as this remains ingrained in traditional practices, as shown by the ex-
ample of liability for damage caused by things in ones charge.
18 Ibid [translated by author].
19 Among the most important articles that have been published in France on the subject
are Gilles J Martin, Prcaution et volution du droit [1995] D Chron 299; Catherine
Thibierge, Libres propos sur lvolution du droit de la responsabilit: (vers un largis-
sement de la fonction de la responsabilit civile?) [1999] 3 RTD Civ 561; Anne Gugan,
Lapport du principe de prcaution au droit de la responsabilit civile [2000] RJE 147;
Denis Mazeaud, Responsabilit civile et precaution [2001] 6 Resp civ et assur 72; Bou-
tonnet, Prcaution, supra note 6; Daphn Tapinos, Prvention, prcaution et responsabi-
lit civile: Risque avr, risque suspect et transformation du paradigme de la responsa-
bilit civile (Paris: LHarmattan, 2008).
20 See Martin, supra note 19 at 301.
21 See Mathilde Boutonnet, Bilan et avenir du principe de prcaution en droit de la res-
ponsabilit civile (2010) 186:24 D Chron 2662 [Boutonnet, Bilan].
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
897
b. Liability for Damage Caused by Things in Ones Charge
The general principle of liability for damage caused by things in ones
charge was created at the end of the nineteenth century in response to the
increased occurrence of industrial accidents. Since then, it has become a
general principle applicable to all cases of injury caused by things. As a
result, liability for injury caused by things has been the legal principle
used in many cases involving accidents associated with technological in-
novations. In 2000,22 the Cour de cassation dealt with a case in which ni-
tric acid was spilled onto fertilizer in a warehouse; the resulting chemical
reaction caused a fire. The firemen transported the melting fertilizer into
a neighbouring field, consequently polluting the land. The Cour de cassa-
tion held liable the company that owned the chemical product and the fer-
tilizer, stating that the pollution was due to damage caused by things in
their charge. Here again, the court made an entirely conservative analysis
of the liability for damage caused by things in ones charge, which re-
quires proof of the deeds of the thing and custody of the thing.
Thus, general principles of civil liability have the capacity to absorb
part of the scientific and technological innovation liability cases in conti-
nuity with the principles of the Code civil. Conversely, scientific and tech-
nological innovations have also provoked changes to the general principles
of civil liability.
2. Adjustment of the General Principles of Civil Liability to the Specific Fea-
tures of Scientific and Technological Innovation
a. Changes to Gross Negligence
Several modifications in conventional legal principles have occurred in
response to accidents associated with technological innovations. The first
of these changes concerns the employers negligence in cases of occupa-
tional accidents. The legal regime governing occupational accidents was
created by the Loi du 9 avril 1898 sur lindemnisation des accidents de
travail,23 which stipulates a capped automatic compensation mechanism
for damages resulting from accidents in the workplace. The employee can
benefit from additional compensation if the employer has committed gross
negligence.24 Gross negligence was first defined in a decision of the Cour
22 Cass civ 2e, 24 February 2000, (2000) D Jur, No 98-17.861.
23 JO, 10 April 1898, 2209.
24 Arts L 452-1L 452-5 Code de la scurit sociale. For a more detailed explanation, see
Christophe Quzel-Ambrunaz, Faute inexcusable de lemployeur et droit des victimes
dactes fautifs [2012] 11 Revue des droits et liberts fondamentaux, online: RDLF
898 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
de cassation of 15 July 1941 as an error of exceptional seriousness,
caused by a deliberate act or omission, the danger of which the person re-
sponsible should have been aware.25 Thus the subjective concept of gross
negligence was established. Yet this definition was challenged by the rise
of occupational illnesses due to asbestos. In several decisions in 2002, the
Cour de cassation declared:
By virtue of the employment contract binding employer and employ-
ee, the employer has a duty of care (obligation of result)26 toward the
employee, in particular concerning occupational illnesses contracted
by the employee due to products manufactured or used by the com-
pany. A breach of this duty is considered gross negligence27 when
the employer was or should have been aware of the danger to which
the employee was exposed and did not take the necessary measures
to protect him from it.28
This new definition of gross negligence, initially linked to asbestos
cases, profoundly changed the theory of civil liability. In this definition,
the Cour de cassation refers to an obligation of result, which is in turn
linked to the concept of contractual liability. When a contractual obliga-
tion is described as one of result, this obligation entails strict liability.29
The person who owes the contractual obligation has undertaken to pro-
vide a result, and becomes liable if that result is not achieved, whether or
not a fault is committed. However, in its decision of 28 February 2002, the
Cour de cassation assimilates the obligation of result to gross negligence.
While this move was motivated by a desire to improve the situation of as-
bestos victims, it defies civil liability theory. By qualifying as objective
gross negligence, the Cour de cassation radically departed from the gen-
eral principles of civil liability in matters concerning occupational acci-
dents. This type of legal innovation in response to technological innova-
tion is also found in matters concerning liability for injury caused by
things in ones charge.
25 Cass Ch run, 15 July 1941, Veuve Villa c Compagnie des Assurances gnrales, (1941)
JCP II 1705 (Annotation Jules Mihura) [translated by author].
26 This is the French notion of obligation de rsultat, which compels the contracting par-
ties to fulfill a result defined in the contract.
27 In French, a faute inexcusable.
28 Cass soc, 28 February 2002, (2002) JCP II 614 at 61415, No 10053 [translated by au-
thor]. See Grard Vachet, Faute inexcusable dans le cadre des accidents du travail et
des maladies professionnelles [2010] Supp 1452 Semaine sociale Lamy 10.
29 See Christian Larroumet, Droit civil: Les obligations, le contrat, t 3, 6th ed, 2d part
(Paris: Economica, 2007), n 606 (the author is in favour of this analysis).
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
899
b. Separation of Custody of the Thing
Liability for injury caused by things in ones charge is borne by the
custodian of the thing. The notion of custody is the subject of legal theory
scholarship that distinguishes the garde de la structure (custody of the
structure, akin to product liability) from garde du comportement (custody
of the behaviour, akin to negligent use) of a thing.30 This theory was judi-
cially developed to adapt the rules of civil liability to the particular char-
acteristics of technological innovations. In the Oxygne Liquide case,
which came before the Cour de cassation in 1956,31 a cylinder of liquid ox-
ygen exploded when being unloaded by its carrier. The cause of the explo-
sion, according to the expert witness, has remained unknown.32 The is-
sue therefore was whether the custody of this cylinder should be attribut-
ed to the manufacturer or to the carrier. The Cour de cassation decided
that the manufacturer was the cylinders custodian because the manufac-
turer had maintained supervision of and control over it, considering the
particular nature of the containers.33 In the jurisprudence, determining
which party had custody of the product makes it possible to attribute lia-
bility to the owner or to the maker of technological objects that might ex-
plode or implode when the cause of injury is a structural defect in the
thing. Thus, the Cour de cassation applies the distinction between garde
de la structure and garde du comportement when a thing presents a dy-
namisme propre capable de se manifester dangereusement (a danger by
their nature or performance).34 The theory of garde de la structure is not a
departure from the regime of liability for injury caused by things in ones
charge, but it is an adaptation of this regime to the specific nature of ob-
jects resulting from dangerous technology. This legal adaptation can
again be found in the increasing number of special liability regimes.
30 See Bertold Goldman, De la dtermination du gardien responsable du fait des choses
inanimes (Paris: Librarie du Receuil Sirey, 1947) at 51. For an explanation of this
theory and its applications, see Genevive Viney & Patrice Jourdain, Trait de droit ci-
vil: Les conditions de la responsabilit, 3d ed (Paris: Librairie Gnrale de Droit et de
Jurisprudence, 2006) at 74957.
31 See Cass civ 2e, 5 January 1956, Bouloux c St Oxygne Liquide et autres et veuve La-
thus c St Oxygne Liquide, (1956) JCP II, No 9095.
32 Ibid [translated by author].
33 Ibid [translated by author].
34 Cass civ 1re, 12 November 1975, (1976) JCP II, No 18479 (Annotation Genevive Viney).
See also Cass civ 2e, 23 September 2004, (2004) Resp civ et assur, No N 03-10.672. Con-
tra Cass civ 2e, 4 February 2010, LexisNexis SA, No 08-70.373 (rejection of this theory
concerning new technological devices that do not represent a danger by their nature or
performance) [translated by author].
900 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
B. Departure in the Development of Special Liability Systems
As was outlined in the introduction, many statutes define special lia-
bility rules related to scientific and technological innovations. Most of this
legislation creates strict liability regimes, as the following examples
demonstrate.
1. Nuclear Energy
In the nuclear energy field, French law is bound by the international
commitments of the Paris Convention of 29 July 1960.35 Because of these
international obligations, several national laws have been made36 in these
matters and some have now been incorporated into the Code de
lenvironnement.37 Article L.597-1 of this code provides for a regime of
strict liability placed on all entities that operate a nuclear facility.38 Oper-
ators are held strictly liable for injury caused by a nuclear accident,
whether the accident originated from the nuclear facility or from the
transportation of nuclear substances.
2. Space Activities
In space activities, France is bound by two international conventions:
the Treaty on Principles Governing the Activities of States in the Explora-
tion and Use of Outer Space39 and the Convention on the International Li-
ability for Damage Caused by Space Objects.40 The former stipulates that
any state that launches an object (or has an object launched) into outer
space is internationally liable for damage to another State Party to the
Treaty or to its natural or juridical persons by such object or its compo-
35 Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 1041
UNTS 358 [Paris Convention].
36 See e.g. Loi no 65-956 du 12 novembre 1965 sur la responsabilit civile des exploitants de
navires nuclaires, JO, 13 November 1965, 9996; Loi no 68-943 du 30 octobre 1968 rela-
tive la responsabilit civile dans le domaine de lnergie nuclaire, JO, 31 October
1968, 10195.
37 See Ordonnance no 2012-6 du 5 janvier 2012 modifiant les livres Ier et V du code de
lenvironnement, JO, 6 January 2012, No 4.
38 This includes natural persons or legal entities, of public or private law.
39 Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies, 27 January 1967, 610
UNTS 205 (adopted by the General Assembly in its resolution 2222 (XXI) of 19 Decem-
ber 1966) [Outer Space Treaty].
40 29 March 1972, 961 UNTS 187 (adopted by the General Assembly in its resolution 2777
(XXVI) of 29 November 1971).
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
901
nent parts.41 The liability of the state extends to space activities carried
out by private companies on French territory. The second convention
more precisely establishes two liability regimes. The first imposes abso-
lute liability for damage caused by a space object to the earths surface or
to aircraft in flight. However, the state may incur fault-based liability42 in
the event of damage to another space object caused somewhere other than
on the earths surface. In all cases, this international liability concerns on-
ly states and excludes the liability of its nationals.43 This state responsibil-
ity has not yet been the cause of any legal action. The involvement of na-
tion states in this liability regime has resulted in such space activity dis-
putes being solved through diplomatic means.
Nevertheless, since 2008, private operators are held liable and reim-
burse the French State when they are involved in an accident. In accord-
ance with the French Loi n 2008-518 du 3 juin 2008 relative aux op-
rations spatiales (concerning space activities), the operator is strictly lia-
ble44 for all ground-based and airspace damage. Additionally, the operator
is liable for any damage that occurs in outer space.45 In this way, the lia-
bility of the private operator is modeled on state responsibility. This
mechanism implies greater protection for victims of this activity. Those
who have been affected by the damage caused are able to go directly to the
state to receive compensation; the state then takes action against the pri-
vate operator. International liability rules thus hold the state accountable
for the risk created by space activity, but without exonerating the private
operator that takes advantage of this economic activity; the private opera-
tor must assume responsibility for the damage caused. This system explic-
itly protects the victims who have not been involved in space activity, and
it is for this reason that the liability of the actors (the state or the private
operator) is regulated under two different regimes. In outer space, the
risk is shared by all concerned. Liability in these circumstances is thus
linked to fault. By contrast, on the ground and in the air, the victims are
not participants in space activity. They should not have to bear the re-
sponsibility for the risk of such activity, and are entitled to a regime of
strict liability, which is more likely to result in victim compensation.
41 Outer Space Treaty, supra note 39, art VII.
42 This liability may be incurred by the state or by an entity for which it is responsible.
43 France, Ministre dlgue la Recherche et aux Nouvelles Technologies, Lvolution du
droit de lespace en France (2003) at 9, 12, online: La documentation franaise
44 JO, 4 June 2008. Article 13 pronounces that the operator is automatically liable for
damage caused on the ground and in airspace [translated by author]. Responsabilit de
plein droit is an example of strict liability.
45 See Juris-classeur transport, fasc 1550, Droit spatial : La loi franaise sur les opra-
tions spatiales du 3 juin 2008 by Mireille Couston, No 106.
902 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
3. Medical Activities
For medical activities, France has established different liability re-
gimes by Loi n 2002-303 du 4 mars 2002, now encompassed in the Code
de la sant publique. In principle, medical liability is a fault-based regime.
However, the Code de la sant publique may impose strict liability in cer-
tain cases. The first of such cases concerns nosocomial infections. The
statute stipulates that health institutions are liable for the injury result-
ing from nosocomial infections, unless they can prove an external cause.46
Therefore, liability is grounded solely on the occurrence of a nosocomial
infection, without it being necessary to prove fault. However, this liability
is only imposed on health care institutions and not on the professionals
themselves.
The second strict liability regime contained in the 2002 statute con-
cerns health products. Drugs and other health-related products fall into
the more general category of defective products when they do not provide
the safety that patients legitimately expect. Liability due to defective
products is regulated by a Council Directive47 and by French law.48 In a
decision of 10 May 2001,49 the European Court of Justice considered that
this framework of liability should apply to products used during the provi-
sion of a medical service. This regime is one of strict liability. The manu-
facturer is strictly liable for the injury caused by a defect in its product;
hence, liability is grounded on the occurrence of the defect.
4. Environmental Damage
For technological innovations having an impact on the environment,
the French liability system is complex. Liability in the environmental do-
main consists of a multitude of different liability regimes. Some of the re-
gimes impose strict liability, as is the case for farmers who cultivate ge-
netically modified organisms (GMOs). Article L.663-4 of the Code rural
stipulates that a farmer is strictly liable for economic damage stemming
from the spread of GMOs to the fields of neighbouring farmers. The
spread of GMOs is a phenomenon that is difficult to assess and monitor.
46 See art L 1142-1(I) Code de la sant publique [C sant pub].
47 EC, Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws,
regulations and administrative provisions of the Member States concerning liability for
defective products, [1985] OJ L 210/29.
48 See Loi no 98-389 du 19 mai 1998 relative la responsabilit du fait des produits dfec-
tueux, JO, 21 May 1998, 7744 (on liability for injury caused by defective products). This
law was introduced at arts 1386-11386-18 C civ.
49 Veedfald v Amtskommune, C-203/99, [2001] ECR I-3586.
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
903
In view of the risks inherent in this activity, French lawmakers chose to
impose strict liability.
The same choice has been made at the international level with respect
to pollution by hydrocarbons. The Brussels Convention of 29 November
1969 was incorporated into French law at article L.5122-26 of the Code
des transports.50 This provision states: [A]ny owner of a ship transporting
a cargo of bulk hydrocarbons is liable for the damage by pollution result-
ing from a leak or discharge of hydrocarbons from this ship.51 In this
field, the carriers liability is strict.52 Lastly, in the environmental field,
the European Union has created a generic environmental liability re-
gime. A European Directive was adopted in 2004 and transposed in 2008
into the Code de lenvironnement.53 Strictly speaking, this regime is not
one of liability; rather, it creates a policing system.54 A victim of environ-
mental damage can seek compensation on the grounds of environmental
liability. However, the authorities may require the polluter to use preven-
tive and remedial measures to suppress the effects of the environmental
damage. The polluter is thus liable to remedy the damage caused, but is
under no legal obligation to the victim;55 liability in this situation is to-
ward the community.
Environmental liability is divided into two systems. The first is a strict
liability regime for activities that exhibit a structural risk and are listed
in the Code de lenvironnement.56 The second is based on fault and applies
50 International Convention on Civil Liability for Oil Pollution Damage, 29 November
1969, 972 UNTS 3, art III(1).
51 Art L 5122-26 Code des transports [C Trans] [translation by author].
52 Unlike a charter company, which can only be render liable for recklessness. For an ap-
plication in a very important ruling, see Cass crim, 25 September 2012, (2012) Bull
Crim, No 10-82.938 [Erika]. This ruling upheld the fault-based liability of the Total
company in the oil spill caused by the ship that the company had chartered (the Erika).
53 EC, Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004
on environmental liability with regard to the prevention and remedying of environmen-
tal damage, [2004] OJ L 143/56; Loi n 2008-757 du 1er aot 2008 relative la re-
sponsabilit environmentale et diverses dispositions dadaptation au droit communau-
taire dans le domaine de lenvironment, JO, 2 August 2008, No 2.
54 For more on this analysis, see Olivier Fuchs, Le rgime de prvention et de rparation
des atteintes environnementales issu de la loi [2008] 38 AJDA 2109 at 2110; Laurent
Neyret, La rparation des atteintes lenvironnement par le juge judiciaire [2008] D
Chron 170 [Neyret, Rparation].
55 In this sense, there is no duty of care owed to the victim in the traditional sense of lia-
bility law.
56 Art L 162-1 C Enviro, supra note 49. These activities are listed in article L.162-5 of the
Code de lenvironnementfor example, waste management; discharge of pollutants into
water; manufacturing of chemical products, biocides, and phytopharmaceuticals;
904 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
to activities that are not listed. These regimes clearly link innovation-
related risk and strict liability. Liability is grounded in business activity
that has caused damage to the environment. The Code specifies that the
operator must provide compensation, even in the absence of fault or neg-
ligence.
In general, French law gives special treatment to scientific and tech-
nological innovations that generate a risk. The factual bases of liability
are adapted according to each innovation. In some cases, it is the activity
itself that is the basis of liability,57 while in others, it is the failure of the
activity that gives rise to liability.58 These special regimes exhibit a rather
sharp departure from the general principles of French civil liability (fault,
injury caused by things in ones charge, injury caused by a third party).
The competition between the general principles of civil liability and the
special regimes described here creates a clear departure from the general
theory of civil liability. This departure can also be observed with regard to
the types of injury for which compensation can be claimed.
II. Injury for which Compensation Can Be Claimed
Traditionally, there are three categories of injury for which compensa-
tion can be claimed: bodily, pecuniary, and non-pecuniary. For these three
categories, the injury must exhibit common characteristics: it must be di-
rect, personal, and certain.59 Under the effect of scientific and technologi-
cal innovation, the law of compensation has undergone two major chang-
es. The first concerns the extension of the types of injury for which one
can claim and the appearance of new types of injury flowing from acci-
dents associated with technological innovations (see Subsection A, below).
The second concerns jurisprudential trends that are favourable to com-
pensation for injury not recognized under the general principles of civil li-
ability (see Subsection B, below).
A. New Types of Injury
Situations of risk and uncertainty generate psychological harm that
we now call emotional distress.60 In the medical field, this kind of harm is
transport of dangerous or polluting materials; deliberate release, transport, or sale of
GMOs; etc.
57 Space activity is an example.
58 Nosocomial infections, defective health products, and the accidental dissemination of a
GMO are examples.
59 On the characteristics of injury, see e.g. Viney & Jourdain, supra note 30 at 311.
60 In this article, emotional distress is used for the French prjudice dangoisse.
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
905
illustrated by a case brought before the Cour de cassation in 2006.61 In
this case, a patient had been the recipient of a pacemaker insertion. It
was later discovered that the pacemaker had a defective pacemaker lead
and there was a risk that it might break inside the patients body. The pa-
tient suffered no bodily injury and it was eventually possible to remove
the defective element without injury. The court nevertheless recognized
that the patient had suffered emotional distress related to the realization
that there were defects with this type of material,62 and due to the fear of
suffering serious illness. Therefore, even without bodily harm, the defec-
tive medical object had caused anxiety that was compensable through an
action for civil liability.
Emotional distress has also resulted in rulings awarding compensa-
tion to victims in asbestos exposure cases. In a ruling of the Douai Ap-
peals Court on 5 June 2008, the court recognized the existence of a psy-
chological and emotional impact of the illness linked to exposure to asbes-
tos and to the awareness of the progressive nature of the illness.63 Ac-
cordingly, the knowledge that the claimant had an incurable and progres-
sive disease caused by asbestos exposure created une angoisse rparable
(compensable anxiety) for which the victim could claim compensation.
Some types of injury are recognized in legislation, such as in cases
concerning damage caused by the spreading of GMOs.64 This special stat-
utory liability regime offers compensation based on a specific definition of
damage, namely the depreciation in income resulting from the difference
between the sale price of the harvest of a GMO product and that of a non-
GMO product of the same kind.65 This economic loss is founded on the
idea that contamination by genetically modified plants may cause a de-
preciation of the value of a harvest. Compensation may be financial or
take the form of a product exchange.
Emotional distress and damage caused by GMO spreading are specific
types of injury within the scope of civil liability (non-pecuniary or pecuni-
ary injury). They are related to scientific or technological innovation, but
are incorporated into ordinary legal categories. They thus embody change
within legal continuity. Other types of injury, though, clearly depart from
the general principles of civil liability.
61 Cass civ 1re, 19 December 2006, (2007) Resp civ et assur, No Q 05-15.719.
62 Ibid.
63 CA Douai 3e, 5 June 2008, General register, No 08/00623 [translated by author].
64 In French, this is called a prjudice de dissmination.
65 See art L 663-4(II) Code rural et de la pche maritime.
906 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
B. Injury Forming an Exception to the General Principles of Civil Liability
Collective injury is an exception to the usually personal character of
injury. The most typical example of collective injury is that described by
the expression pure ecological damage, defined as direct or indirect
damage to the environment.66 The jurisprudence demonstrates that this
type of damage is intimately related to industrial technological innova-
tions. The cases heard in the courts concern pollution by chemical prod-
ucts or hydrocarbons.
Pure ecological damage was officially recognized by the Cour de cassa-
tion in the 2012 Erika oil spill case.67 In recognizing pure ecological dam-
age, which does not exhibit a personal character, the court created an ex-
ception to the personal character requirement. As one author points out,
the damage is caused to nature and not to people, it hurts groups rather
than individual interests.68 Before its recognition by the Cour de cassa-
tion, both trial and appeal courts had also recognized pure ecological
damage. The Bordeaux Court of Appeals acknowledged the existence of
damage incurred by the aquatic environment69 and granted compensa-
tion to environmental defence associations. Likewise, the Narbonne Court
of First Instance accepted that a regional natural park could be compen-
sated for environmental damage to the parks natural heritage subse-
quent to pollution by phytosanitary products discharged by a factory.70
French legal scholarship has recently developed a nomenclature of envi-
ronmental damage71 and the French Minister of Justice has appointed a
working group to investigate how to integrate ecological damage into the
Code civil.72 At the same time, a bill entitled visant inscrire la notion de
prjudice cologique dans le code civil (on how to introduce the notion of
66 Laurent Neyret, Le prjudice cologique: Un levier pour la rforme du droit des obliga-
tions [2012] 40 D 2673 [Neyret, Le prjudice cologique] [translated by author]. See
also Mireille Bacache, Quelle rparation pour le prjudice cologique ? [2013] 3 Envi-
ronnement et dveloppement durable, study 10.
67 Erika, supra note 52 (Annotation Philippe Delebecque). See also Mathilde Boutonnet,
LErika: Une vraie-fausse reconnaissance du prjudice cologique [2012] 1 Environ-
nement et dveloppement durable, study 2.
68 Mathilde Boutonnet, Les fondements et conditions de la responsabilit en matire
denvironnement, loose-leaf (consulted on 16 January 2014), (France: Wolters Kluwer,
2008), n 370-60 [translated by author].
69 CA Bordeaux, 13 January 2006, No 05/00567 [translated by author].
70 Trib gr inst Narbonne, 4 October 2007, (2007) AJDA 2011, No 935/07 (Annotation
Catherine Faivre). See generally Neyret, Rparation, supra note 54 at 173.
71 See Laurent Neyret & Gilles J Martin, Nomenclature des prjudices environnementaux
(Paris: LGDJ Lextenso ditions, 2012).
72 See Neyret, Le prjudice cologique, supra note 66.
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
907
ecological damage into the Code civil) is under discussion at the French
Parliament.73
The expansion of pure ecological damage into French law marks a
sharp departure from the general principles of civil liability. Compensa-
tion for this injury is not based on a legal duty between the victim and the
party causing the injury since the victim does not have legal personality.
The compensation is paid to an association or a government agency en-
trusted with remedying the loss. This profoundly changes the internal log-
ic of civil liability law. This is also the case for compensation for a risk of
damage.
Risk of injury is an exception to the certain character of damage.
Traditionally, the injury must be certain to be compensated. Indeed, it is
difficult to imagine compensation for hypothetical injury. This condition is
reconsidered, however, in the context of scientific uncertainty. In France,
cases for injury related to mobile phone relay antennas prompted contra-
dictory trends in the jurisprudence. In these cases, the proof of the harm-
fulness of the relay antennas was the subject of scientific controversy,
hence placing the courts in an uncomfortable position. In two decisions,
the trial and appeal courts imposed liability on mobile phone operators. In
one decision, the Nanterre Court of First Instance74 was petitioned by per-
sons who were suffering from health problems, which they attributed to
the presence of a relay antenna near their homes. The court recognized
that the link between the antenna and the health problems had not been
proven with scientific certainty, but nevertheless accepted that the risk
of health problems, as distinguished from the health problems them-
selves, was certain.75 This decision is important because it provides that
the risk of injury can be compensated. Moreover, to justify this recognition
of the risk of injury as an injury, the court makes reference to competent
authorities who recommend applying the precautionary principle.
According to the courts reasoning, the precautionary principle should
influence the rules of civil liability. Yet the precautionary principle is a
mechanism for ex ante anticipation of risks, while civil liability is a mech-
anism for compensating injury ex post facto. The precautionary principle
is thus in apparent contradiction with the traditional concept of civil lia-
73 France, Snat, Proposition de loi visant inscrire la notion de prjudice cologique dans
le code civil, by Bruno Retailleau et al, Report No 546 (23 May 2012) [translated by au-
thor].
74 Trib gr inst Nanterre, 18 September 2008, [2008] D 2916 (Annotation Mathilde Bou-
tonnet).
75 Ibid at 2916 [translated by author].
908 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
bility.76 The intrusion of the precautionary principle into some decisions
demonstrates a move from the traditional role of civil liability toward new
functions. This is leading some authors to write of preventive liability.77
While this may seem contrary to the logic of civil liability, the claim for
compensation based on precaution is understandable from the victims
perspective. For example, one person sued a mobile phone operator for re-
imbursement of expenses related to the shielding of his apartment from
electromagnetic fields to stop electro-hypersensitivity problems.78 This
person would have avoided the expense of shielding if the antenna had
not been installed in his neighbourhood. Therefore, the damage had be-
come tangible, in the form of the expense.
In the absence of proof of the connection between the damage and the
relay antennas, some courts have been tempted to shift the debate by
qualifying the injury as psychological. For example, in a notable ruling,
the Versailles Court of Appeal ruled that the the installation of the relay
antenna near their home … indisputably created a feeling of anxiety, the
manifestation of which can be inferred from their actions.79 Once again,
psychological injury is considered in this ruling as a special type of non-
pecuniary injury. By shifting the debate to the field of psychological inju-
ry, the Court of Appeal avoided the delicate question of scientific uncer-
tainty.
Despite this judicial trend in favour of victims, a medical decision from
the Cour de cassation on 28 June 2012 seems to have halted the debate on
compensation for hypothetical injury.80 In this case, the claimant had
been the victim of serious medical negligence, resulting in the need to un-
dergo a new surgical procedure. However, driven by a feeling of anxiety
and loss of confidence in the medical profession, the victim refused to
submit herself to the new surgery, and instead requested compensation
for this injury. The Cour de cassation declared, however, that this hypo-
thetical injury does not give rise to compensation. The court considered
that the injury experienced by the victim in this situation was only hypo-
thetical and that the victim could not be compensated.81 With this deci-
76 For an approach that attempts to reconcile the two, see Boutonnet, Prcaution, supra
note 6; Boutonnet, Bilan, supra note 21 at 2663.
77 See e.g. Sintez, supra note 6.
78 Cass civ 1re, 17 October 2012, No 10-26.854 [translated by author].
79 CA Versailles, 4 February 2009, Quicklaw, No 08/08775 [translated by author]. See also
Jean-Victor Borel, Antennes relais de tlphonie mobile : un risque troublant (2009)
JCP E1336.
80 See Cass civ 1re, 28 June 2012, (2012) Bull civ I, No 148.
81 In French, ventuel.
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
909
sion, it would appear that the courts have returned to the traditional con-
cept of injury and to the compensatory function of civil liability.
Although this statement by the Cour de cassation seems to dismiss
compensation of victims in cases of scientific uncertainty, this does not re-
flect broader jurisprudential trends. Indeed, the circumstances of uncer-
tainty are inducing lawmakers and the courts to increase the use of proof
by presumptions. This phenomenon is especially visible with regard to the
evaluation of the causal link.
III. Causal Link
The conventional concept of causality is based on the idea that the in-
jury must be the certain consequence of the act complained of; however,
the concept of causality has greatly evolved in French law. This evolution
is illustrated by the first ruling handed down by the Cour de cassation in
a case concerning the side effects of the vaccine against hepatitis B. Epi-
demiological data had showed a weak statistical link between the vaccine
and the appearance of multiple sclerosis. In this case, scientists had not
ruled out the existence of a risk, but considered that the data did not es-
tablish a causal link between the vaccine and the development of multiple
sclerosis. The first decision from the Cour de cassation in 2003 placed the
burden of proving the link between the vaccine and the illness on the vic-
tims.82 Insofar as this causal link could not be established with certainty,
the court considered that the claim could not succeed.
Yet this strict position was abandoned in 2008 when the Cour de cas-
sation declared that while the liability action on the grounds of a defec-
tive product requires proof of the injury, of the defect, and of the causal
link between the defect and the injury, such proof may result from pre-
sumptions, as long as they are serious, precise, and concordant.83 In other
words, in the absence of scientific certainty, the conditions of liability may
be presumed. While this declaration may appear to deviate from the con-
ventional principles of civil liability, in fact it is based on an article of the
Code civil that dates from the Codes creation in 1804. Indeed, article 1353
states that presumptions that are not established by law are left to the
enlightenment and prudence of the magistrate, who must admit only pre-
sumptions that are serious, precise, and concordant.84 Evidence support-
ing these factual presumptions is composed of multiple clues. For exam-
82 Cass civ 1re, 23 September 2003, (2003) Bull civ 146, No 188.
83 Cass civ 1re, 22 May 2008, (2008) Bull civ I, No 149 [translated by author].
84 [Translated by author].
910 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
ple, in a 2009 decision,85 the Cour de cassation accepted that proof of the
causal link between multiple sclerosis and the hepatitis B vaccine was
based on three facts: the temporal proximity between vaccination and the
appearance of the illness, the lack of background neurological indicators
in the victims family, and elimination of other causes that might explain
the occurrence of the illness by experts.86
While recourse to presumptions is not limited to scientific and techno-
logical innovations, in practice, the main judicial decisions where these
presumptions come into play have concerned scientific and technological
innovation. Such is the case of an important 2011 decision concerning the
harmful effects on animals of high tension electrical lines.87 In the absence
of certainty regarding the effect of the electric lines, the owner of the ani-
mals sought compensation on the basis of the precautionary principle.
The Cour de cassation decided that the precautionary principle did not
challenge the traditional rules of civil liability, according to which the par-
ty seeking compensation for injury must prove that this injury is the di-
rect and certain consequence of the cause. On the other hand, the court
accepted that the proof of the conditions of liability could result from pre-
sumptions that were serious, precise, and concordant.
Scientific uncertainty is very present in the environmental and health
fields. This is why French law has also had recourse to presumptions of
legal origin in these fields. For example, concerning liability related to nu-
clear accidents, the Code de lenvironnement stipulates that the govern-
ment list the complaints that are presumed to originate from the acci-
dent.88 Another example concerns the compensation of victims of tainted
blood transfusions. The Code de la sant publique created two legal pre-
sumptions: the first applies to blood contamination by human immunode-
ficiency virus (HIV)89 and the second to blood contamination by hepatitis
C virus (HCV).90 In order for the presumption of a causal link between
85 Cass civ 1re, 9 July 2009, (2009) Bull civ I, No 176.
86 This analysis of causation is criticized by certain legal scholars, who reproach judges for
having adopted a pseudo-scientific approach (such as junk science). See Jean-
Sbastien Borghetti, Vaccination contre lhpatite B et sclrose en plaques: Incerti-
tudes scientifiques et divergences de jurisprudence [2011] JCP G 160, No 79. See also
Jean-Sbastien Borghetti, Vaccinations contre lhpatite B et sclrose en plaques: En
cas de doute scientifique persistant, prire de sadresser la juridiction la plus proche!
[2010] 1 Revue des contrats 79.
87 Cass civ 3e, 18 May 2011, (2011) Bull civ III, No 80. See also Marion Bary, Le principe
de prcaution et la responsabilit civile: propos de champs lectromagntiques [2011]
9 Resp civ et assur, study 11.
88 Art L 597-12 C Enviro, supra note 49.
89 See art L 3122-2 C sant pub.
90 See art L 1221-14 C sant pub.
SCIENTIFIC INNOVATIONS IN FRENCH LIABILITY LAW
911
blood transfusions and contamination by HCV to come into play, the vic-
tim must show that he or she has an HCV infection and that he or she re-
ceived blood transfusions. The proof of these two elements raises a pre-
sumption of the link between the transfusion and the contamination.
These presumptions are based on a probability ratio, but at times
French law encounters improbable situations. The case in point is related
to diethylstilbestrol (DES) use. This drug was distributed medically by
two different industrial firms but consisted of the same pharmaceutical
ingredients. This medicine was prescribed for pregnant women until the
1970s. It caused cancers in their female offspring several years later. The
victims were able to prove that they had suffered the side effects of the
drug, but were unable to prove which of the pharmaceutical laboratories
distributed it. This situation is described in legal doctrine as a case of al-
ternative causality. The Cour de cassation ruled on this issue in 2009; the
court found that as long as the victim had proven the link between her
illness and the DES, the burden fell to the manufacturers to prove that
their product was not the cause of the injury.91 This mechanism has been
described as instituting a legal fiction in favour of the victim.92 Indeed, it
is practically and scientifically impossible to know which medicine was
prescribed to the mother several years before the appearance of the illness
in her daughter. In the face of this absolute uncertainty, the Cour de cas-
sation reversed the traditional burden of proof and caused a radical de-
parture from traditional civil liability rules.
The field of evidence has been particularly affected by scientific and
technological innovations. While in this area, rulings have not truly
shown a departure from the general principles of civil liability, it must be
acknowledged that the increased recourse to proof by presumptions is a
particular characteristic of liability cases related to scientific and techno-
logical innovations. In this field, advancement and invention are inevita-
bly accompanied by uncertainties, and the law has changed to adapt to
this situation.
Conclusion
This analysis of the effect of scientific and technological innovations on
the law of civil liability law demonstrates a dual phenomenon of depar-
ture and continuity. Continuity is demonstrated by decisions in which the
Cour de cassation finds new solutions rooted in the Code civil. Such was
the case of the creation of the strict liability regime for injury caused by
91 Cass civ 1re, 24 September 2009, (2009) Bull civ I, No 186.
92 See Christophe Quzel-Ambrunaz, La fiction de la causalit alternative: Fondement et
perspective de la jurisprudence Distilbne [2010] 19 D 1162.
912 (2014) 59:4 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
things in ones charge, based on article 1384, paragraph 1 of the Code, and
also of the development of factual presumptions found in article 1353. In
the same spirit, the recognition of new types of injury, such as psychologi-
cal injury, is only an extension of categories already known under the
general principles of civil liability (under the category of non-pecuniary
damage). More radically, civil liability has also experienced departures
from general principles. One example is the association between the em-
ployers gross negligence and the obligation of result. Recognition of eco-
logical damage as a victimless injury is a further demonstration of this
phenomenon.
Between soft adaptations and radical departures, contradictory trends
emerge. Two emerging principles are the precautionary principle and
compensation for the risk of injury. Some trial and appeal courts compen-
sate for the risk of injury based on the idea that scientific uncertainty
should not be detrimental to the safety of persons or property. This judi-
cial trend is causing a revolution by creating a form of preventive liability.
The Cour de cassation still appears to be resisting this trend, but it is un-
certain whether this tendency will survive against a growing compensa-
tion policy in France. To reconcile compensation for injury with a respect
for the principles of civil liability, lawmakers are developing more mecha-
nisms for compensating victims outside of liability law. Liability law is
thus in competition with national solidarity legislation, through which
victims may claim compensation without having to establish all the condi-
tions for liability.
