Cour de Cassation, Second Civil Chamber, (pourvoi no. 04-14.787)Bull.civ. 2005.II. no. 275 p. 244
20 October 2005
Translated by:
Tony Weir
Professor B. S. Markesinis

In view of article 102 of the Law no, 2002-303 of 4 March 2002, and articles 1251 and 1382 Code civil:

Given that Article 102 of Law no. 2002-303 of 4 March 2002, applicable to current litigation not finally determined, provides that when there is a dispute about the source of contamination by the virus of hepatitis C prior to the law’s entry into force, it is for the defendant, once the claimant has led facts which could imply that the contamination resulted from a blood transfusion or the use medicinal blood products, to prove beyond doubt that the contamination resulted from neither of these; and that under the other two articles cited which provide that where a person’s fault has contributed to the harm resulting from a traffic accident any claim for contribution between that person and the driver of the vehicle involved must satisfy the conditions there laid down, the quantum depending on their respective faults.

On 17 January 1984 M. Jean-Pierre Boitelle was injured in a traffic accident involving the vehicle of M. Mortelette, insured by the Union générale du Nord, now IARD, who     were held liable, in a judgment of 19 December 1991 now definitive, to compensate him for the consequential harm; six years later, on 9 October 1997 Jean-Pierre Boitelle died of hepatitis C, having been infected by the virus, and  his representatives, namely Mmes Nathalie and Florence Boitelle, brought suit against what is now l’Etablissement français du sang (EFS) in the belief, founded on the report of a court-ordered expert, that the contamination resulted from blood transfusions. In dismissing the claim for damages brought by the Boitelles the court below also dismissed the recourse claim brought by EFS against the driver Mortelette and his insurer, Generali;

Given that after holding that EFS was responsible for the contamination  and its consequences, the court dismissed its recourse claim against M.Mortelette and his insurer, stating that although M.Mortelette had been held liable for the harm resulting from the traffic accident in which Jean-Pierre Boitelle was the victim and that the expert had found that the blood transfusions were necessitated by the accident, nevertheless it remained to be proved that there was a causal link between the transfusion and the contamination, and here there was no such certain proof, since it had not been shown that the blood was contaminated, the expert having simply indicated that while the transfusion was possibly the cause of the contamination it might have been due to infection in the hospital; while it was true, according to the court, that EFS was liable to the claimants by reason of its inability to displace the presumption of causation laid down by article 102 of the Law of 4 March 2002 either by disproof or by proof of an external cause, this presumption was designed to apply only as between the person contaminated and the supplier of the blood so that the claim by the Boitelles against M. Mortelette and his insurer must be dismissed, as must the recourse claim by EFS against M. Mortelette: the fact that a person may be held liable to pay for the whole harm suffered by the victim even if it has been aggravated by the act of a third party for which he is not responsible  – all conditions being causally equivalent – does not mean that  the latter, whose act aggravated the harm,   has a claim against the former;

But given that first, the presumption that contamination was due to the blood transfusion applies whoever is responsible for the harm it causes and secondly that it followed from the finding that the transfusion had been necessitated by the accident for which M. Mortelette was liable that EFS could sue him for a contribution towards the damages it had to pay for the harm due to the contamination, the court of appeal violated the texts cited above.

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