Cour de cassation, Chambre civile

The Court:

In view of article 1382 Code civil:

Given that this article requires that a fault have been committed, that damage have been proved, and that the fault have caused the damage; Given that it emerges from the reasons given in the judgment under attack that Mme Bruneau was injured by a pellet fired from a gun held by one of three huntsmen who were in line abreast, two on one side of the hedges they were beating and one on the other, and that it was impossible to decide which of the three fired the shot, this being the reason for the dismissal of the prosecution opened against them;

Given that the judgment under attack held all three liable for the consequences of the accident, on the ground that in hunting as they did without knowing what was behind the hedges “they joined in creating a zone of danger”, that “this fault rendered them liable”, and that furthermore they had implicitly accepted the risks of accident inherent in their chosen method of hunting;

But given that the sole cause of the accident was the fault of the particular huntsman who, without checking that he could safely do so, fired the shot that struck Mme Bruneau, and that the fault held to generate liability, namely creating a danger by hunting abreast in an area divided by hedges, is unconnected with the injury, from which it follows that in making all three liable for the harm suffered by Mme Bruneau, the Court of Appeal has made two of them pay for damage which they did not cause; that it thus violated the text cited;

For these reasons QUASHES the decision of the Court of Appeal of Bordeaux on 13 October 1936.

Subsequent Developments

See Jurisclasseur “Responsabilité Civile”n Fasc. 160 already cited: “When damage has been caused by an anonymous person, the author thereof is unknown and the proof of a chain of causality is impossible to establish with certainty, even if this person is a member of a group all of whose members are identified. The difficulty caused by such circumstances arises specially in the case of hunting accidents. For a long time the courts applied rigorously the rules relating to the proof of a chain of causality: since the victim could not establish this proof, his claim was refused. (Civ., 29 September 1941). Certain writers were struck by the injustice of this doctrine, and came to criticise these decisions as being contrary to equity. The courts then searched for different technical means to avoid leaving the unfortunate victim without indemnification. First of all, it was the notion of “collective fault” or “common fault” which was imagined in order to condemn jointly the members of the group. Hunting accidents allowed the courts to apply this notion in several cases (Civ.2, 18 May 1955: JCP 1955, II, 8793 and on remittal (“renvoi”) CA Bourges, 5 February 1957, D. 1957, p. 330 – See also Civ.2, 5 June 1957, D 1957, p. 493). This doctrine has even been maintained after the entry into force of the Law of 11 July 1966 extending the jurisdiction of the Guarantee Fund to hunting accidents when the author is unknown. Thus, the Court of Cassation (Civ.2, 19 May 1976, Bull. II, No. 163) rejected several applications for review brought against a decision holding jointly liable twelve hunters. The supreme court reproduced in its decision the findings of the lower court according to which “the accident had its cause in a common action arising from a plurality of connected acts, which, because of their coherence of conception and execution, could not be separated”. The court then approved such findings for having decided “the collective liability of the hunters in the suit, who, in their common action which resulted in damage, all committed faults whose elements were inseparable”.

Note: Certain writers question the desirability of maintaining this doctrine. See Jurisclasseur “Responsabilité Civile et Assurances” fasc. 511-2 (Paulette Veaux-Fournière and Daniel Veaux, 1996): By finding all the hunters of the same group collectively liable, a court prevents recourse to the Guarantee Fund (Civ.2, 19 May 1976: Bull. II, No. 163). The question arises whether it would not be simpler, rather than sticking together fragile legal constructions, to go back to the old doctrine, by finding the members of the group not liable as long as it has not been possible to determine who fired the shot causing the damage, freeing their insurers, and inviting the victim to claim from the Guarantee Fund.” Nevertheless, no other decision seems to have been handed down by the Court of Cassation since then on the question of the collective liability of huntsmen in case of an accident. Finally, it is important to mention that, by two decisions also handed down by the 2nd Civil Chamber on 19 may 1976, that Chamber, on the basis of Article 1382 of the Civil Code, annulled for lack of legal basis two decisions (Bull.No.165 and 166) which had found collective liability without checking whether one of them in fact used the type of bullet which had wounded the victim (No. 165) or whether one of them was not, at the moment of the accident, in a position which would put the victim out of the range of his rifle (No.166).