Case:
Bull. Civ. I, no. 158, p. 104 Case Mme X. v. Centre régional de transfusion sanguine
Date:
28 April 1998
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:

Given that when Mme X … became HIV positive she originally attributed this to blood transfusions which she was given during her confinement and sued the Fonds d’indemnisation des transfusés et hémophiles contaminés, which rejected her claim for want of proof that such transfusions had taken place; that Mme X then obtained through the judge in chambers an expert report which finally proved that she had indeed been contaminated by plasma given to her when a cyst was being removed; that she then brought an action against the Centre régional de transfusion sanguine de Bordeaux which supplied the infected plasma and its insurer;

In view of article 47 of the Law of 31 December 1991, no. 91-1406:

Given that the judgment under attack dismissed the claim of Mme X. for damages for the harm resulting from her being contaminated on the ground that after the Fonds had been seised of a claim no claim in respect of the same harm could be brought in the civil courts;

Given that in so holding when article 47 of the law of 31 December 1991 does not debar those whose claim for an indemnity has been rejected by the Fonds from bringing a claim before the civil courts, the court below misapplied the text cited above;

On the second ground of appeal:

In view of articles 1147 and 1384(1) Code civil, interpreted in the light of the Council Directive no. 85-374 of 24 July 1985;

Given that a producer is liable both to primary and secondary victims for the damage due to a defect in its product whether or not there is any contractual link between them;

Given that when the husband and children of Mme X. sought reparation before the court of appeal for the moral harm they suffered as a result of their wife and mother being infected the court in the judgment under attack, while holding that Mme X had indeed been infected by HIV during a transfusion of frozen plasma supplied by the Centre régional de transfusion sanguine de Bordeaux which offered no proof of any external cause which could exonerate them, dismissed the claims on the ground that the claimants had not shown that the centre was guilty of any fault which had caused their harm;

Given that in so holding the court of appeal misapplied the texts cited above; …For these reasons

QUASHES and ANNULS … the decision of 23 July 1996 by the Court of Appeal of Bordeaux, DECLARES that the Centre is liable for the harm suffered by all the claimants, and remands the case to the Court of Appeal of Toulouse, but only for the purpose of ascertaining the quantum of damages.

This note on subsequent developments reflects the legal situation as of October 2004.

Civ 1, 28 April 1998 : The immediate victim of a contaminated blood transfusion is not estopped from making a civil claim by applying to the compensation fund. In the light of the Directive (not effective), the supplier of contaminated blood is strictly liable towards secondary victims, as it is in relation to the immediate recipients of its products. The admissibility of an action by contaminated victims before the courts administering the droit commun if the victims' claim is rejected by the Compensation Fund seems established in its principle. In this judgment the court states the principles of indemnification of the victims of transfusions: the institution of the Fund does not prohibit victims who refuse its offer from pursuing their action before the courts administering the droit commun (Civ 1, 9 July 1996 Bull nos 304 and 305, 27 May 1997, Bull no 175), but this claim will have to be limited to those headings of detriment not having already given rise to indemnification by the Fund (Assemblee pleniere, 6 June 1997, Bull no 8, Civ 2, 14 January 1998, Bull no 16). However, a judgment of the 6 June 2000 (Civ 1, Bull no 179), following a judgment of the European Court of Human Rights of the 30 October 1998, recognised the action of the victims against the third party responsible and its insurer in spite of indemnification by the Fund where the offers of indemnification involved were formulated at a date when the victims could not assess the offer which was made to them at its true value. As far as concerns the liability of the manufacturer towards immediate victims and victims by ricochet, without distinguishing on the basis of whether they are contracting parties or third parties, the present judgment anticipates the Law of the 19 May 1998 relating to liability for defective products, introducing into French law the Directive of the 25 July 1985 which lays down the principle of a liability of the producer as of right. Moreover this Law has not fundamentally altered positive law, the Cour de cassation having applied the 1985 Directive anticipatively, thereby abrogating, since a judgment of the 17 January 1995, the non-concurrence of the two schemes of liability so far as concerns the liability of manufacturers. It is this solution - from now on provided for by article 1386-1 of the Code civil - which the present judgment reaffirms.

Translation by Raymond Youngs

 

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