- Case:
- JCP 2000 II 10438 Case Époux X v. Mutuelle d'assurance du corps sanitaire français Subsequent developments
- Date:
- 17 November 2000
- Note:
- Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
- Translated by:
- Tony Weir
- Copyright:
- Professor B. S. Markesinis
Cour de cassation
The Court:
---
In view of articles 1165 and 1382 Code civil:
Given that in its decision of 17 December 1993 the Court of Appeal of D held, first, that both Dr. Y and the B laboratory, in the person of M. A, were guilty of negligent breaches of contract while scanning Mme X, then pregnant, for German measles antibodies; secondly, that her son having been affected in utero by German measles and born seriously handicapped, damages were payable to Mme X for the harm she suffered thereby, since she had decided that were German measles to develop she would have the pregnancy terminated and had been misled by the defendants' faults into thinking that she had been immunised against it; and thirdly that the harm suffered by the son personally was not causally due to those faults;
Given that this decision was quashed as to the son's claim, yet the court of remand at C held that "the child N. did not suffer any compensable harm resulting from the negligence in question" on the ground that his affliction resulted not from such negligence but solely from his mother's having German measles, and that he could not found upon his parents' decision to have the pregnancy terminated:
But given that the negligence of the doctor and the laboratory in the performance of their contracts with Mme X prevented her exercising her freedom to proceed to a termination of the pregnancy in order to avoid the birth of a handicapped child, the harm resulting to the child from such handicap was caused by that negligence and he can claim compensation for it,
For these reasons, QUASHES in its entirety the decision handed down on 5 February 1999 by the Court of Appeal of C, restores the case and the parties to the position prior to that decision, and remands them to the Court of Appeal of D, composed differently from that which rendered the decision of 17 December 1993.
Doctrine upheld: See in particular Full Court, 13 July 2001 and 28 November 2001. A law was later introduced (the law of 4 March 2002) to limits its effects.
This page last updated Thursday, 15-Dec-2005 09:05:51 CST. Copyright 2007. All rights reserved.