Cour de cassation, First Civil Chamber (pourvoi no. 02-13.775)Bull.civ. 2006.I. no. 31 p. 29
24 January 2006
Translated by:
Tony Weir
Professor B. S. Markesinis

In view of article 1 of the First Protocol to the Convention on the Protection of Human Rights and Fundamental Liberties and article 1(1) of the Law no. 2002-303 of 4 March 2002 on the quality of the health service and the rights of patients  (now article L. 114-5 of the Code of Social Action and the Family) along with articles 1165 and 1382 Code civil;

Given that on 11 January 1996 Mme Y… gave birth to a female child with serious spinal defects and  that Mme Y… and M. X…, acting both in their own right and as statutory representatives of the child, sued M. Z…, the gynaecologist obstetrician who had taken seven echo scans which should have enabled him to diagnose the spinal defects and raise the possibility of an abortion, the claim being for their own pain and suffering and the harm suffered by the child as a result of her handicap;

Given that in deciding that M. Z… was not liable to the child, the judgment under attack said that his negligence did not contribute to the existence of the spinal defects of the child and that there was thus no causal relationship between his negligence and the harm to her;

But given that the doctor’s negligence in the performance of his contract with Mme Y… prevented her from deciding whether or not to proceed to an abortion so as to avoid having a handicapped child, the child could, prior to the introduction of the Law cited, claim damages for her harm as being due to the doctor’s negligence;

Given that article 1(1) of the Law cited, textually applicable to lawsuits then in progress,  provided that “no one can complain of the mere fact of being born as constituting harm; in cases where a health professional is seriously at fault in failing to discover during the pregnancy the handicap with which the child would be born the parents may claim compensation only for the harm caused to them personally, to the exclusion of any burdens resulting from the lifelong handicap of the child, which will be borne by national solidarity.”

But given, nevertheless, that according to article 1 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Liberties, a person may not be deprived of a claim for damages unless this is consistent with maintaining a just balance between the general interest and the need to protect a person’s right to his property, and this precondition is not met by article 1(1) of the law in question, which bars any action by the child and excludes from the parents’ claim the burdens resulting from such handicap during the child’s life and thereby introduces a system of arbitrary alleviation of the handicap in no reasonable relation to the full compensation for her daughter’s handicap which Mme Y… and M. X… were legitimately entitled, under the case-law prior to the implementation of this law, to expect would be granted to her.

From which it follows that this law does not apply to the case in hand, so that for these reasons

The decision is quashed and annulled…

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