Cour d'Appel, Grenoble

The Court:

This appeal is brought by Paul and Garnier, as well as Le Continent, the company which insured them both, against a decision of the Tribunal de grande instance of Gap of 13 July 1961 holding all of them liable under articles 1382, 1383 and 1384(1) Code civil for the injuries suffered by Clavel in a hunting accident, with an interim payment of some 2,000 francs, subject to an expert medical report on the extent of his injuries;

Given that it emerges from the evidence that Clavel had to have his left eye removed after he was hit by a lead pellet from a gun fired either by Paul or by Garnier, both of whom, standing only a few metres apart, fired in quick succession at a hare sitting about thirty metres in front of them more or less in the direction of Clavel, whom they had seen; given that according to what the two huntsmen told the police after the accident it was probably Garnier’s gun that injured Clavel, seeing first that Clavel did not fall to the ground until after Garnier had fired, Paul having fired already, and secondly that Clavel was more in Garnier’s sight-lines than Paul’s, but given nevertheless that this is merely a probability, seeing that the shots were fired so close together in time that even if Clavel had been hit by the first shot he might not have fallen till after the second, and further that, as was disclosed in the evidence, shot from both guns spread rather widely, and there might have been a riocochet, so that it cannot be excluded that it was by a pellet from Paul’s gun that Clavel was hit; given that in view of this uncertainty, which led the juge d’instruction to dismiss the prosecution, it is impossible to hold either Garnier or Paul personally liable;

Given that in holding that the two huntsmen were collectively liable under article 1382 the tribunal was in error, as there was no common fault in the way they were hunting, and though they were both at fault, indeed Garnier more than Paul, in firing so close to Clavel, so that any ricochet, if there was one, could not count as a cas fortuit, yet these were separate individual faults only one of which, since Clavel was hit by a single pellet, could be the cause of the injury;

Given that the tribunal was also in error in holding both Paul and Garnier liable under article 1384(1) when contrary to what it held, the two shots did not produce a single cone of pellets since Garnier, who fired only when he had seen that Paul’s shot had failed to kill the hare, was firing from a different position and in a different direction;

Given that while it is impossible to hold either Paul or Garnier personally liable, though it is certain that liability attaches to one or other of them, either as gardien of the pellet or as being at fault in firing when the victim was so close, the victim has a direct action against Le Continent which insured them both, an action well founded whichever of the two huntsmen was liable since it was certainly one or other of them; Given that Clavel’s claim against Paul and Garnier is unfounded but good against the firm Le Continent, that firm must be held liable for the harm suffered by Clavel in the accident, up to the lower limit of the policies issued by it to Paul and Garnier…

Subsequent Developments

Doctrine upheld. A decision of the Chambre Sociale dated 6 March 1980 (Bull. No. 236) is slightly similar to the position adopted by the Court of Appeal of Paris: “Where an employee, who had been the victim of an accident at work, dies as a result of respiratory failure occurring during an operation carried out under general anaesthetic a few hours after the accident, his death must be considered as being in the course of his profession, since the respiratory incident, which was the direct cause of the death, happened during the surgical operation necessitated by the injuries and cannot therefore be detached from the accident itself; in this respect it matters little that these consequences may have been provoked or aggravated by a medical fault, which, being indistinguishable from the treatment, has no effect on the chain of causality which exists between the accident, the treatment of the injuries and the death which followed upon such treatment”.

Similarly, a decision of the Criminal Chamber dated 10 April 1973 (Bull. No.185), confirmed by a decision dated 12 April 1994 (Bull.No.147) holds that “a victim’s right to indemnification cannot be reduced by reason of a pathological predisposition if the abnormality arising therefrom was revealed or provoked only by reason of the wrong-doing itself”. Again, (Crim., 14 February 1996, Bull. No. 78) “Neither the former Article 319 nor the new Article 221-6 of the Penal Code require that there should exist a direct and immediate chain of causality between the fault of the accused and the death of the victim; it is sufficient that the existence of a chain of causality be certain. Consequently, the Court quashes a judgement which, holding that there existed between the accident and the death of the victim only an “indirect chain” by reason of prior damage, which had nothing to do with the accident, dismissed the intervening parties (“parties civiles”) who claimed indemnification for the death of the victim”. A recent decision handed down by the Second Civil Chamber (10 June 1999, Bull. No. 116), also holds that “The right of a victim to obtain indemnification for bodily injury cannot be reduced by reason of a pathological predisposition if the abnormality arising therefrom has been provoked or revealed only by the event causing the damage”.

But above all, the Second Civil Chamber, for its part, had already made known its position, by a decision dated 13 January 1982 (Bull. No. 9). The interest of this decision is that it deals precisely with a case of “delirium tremens”: the victim of an accident, according to the findings of the lower court, did not die in his state of alcoholic impregnation. The application for review criticised this decision for not having taken this alcoholism into account in order to conclude that the latter was, at least partially, the cause of the death, and argued further “that the state of chronic drunkenness of the victim flowed from a voluntary and faulty way of behaving”, as a result of which, according to the application for review, the victim, “by continuing to abandon himself to excessive drinking” had “accepted the risks inherent in his intemperate fault and had thus participated in the production of the damage”. The application for review is rejected on the grounds that “If a decision finds that the traumatism following an accident was the element which set off mortal complications which would not have arisen without such accident, and adds that the accident was thus the only cause of the accident, the argument based upon the pathological predisposition of the victim is irrelevant”. This analysis is approved by Messrs. Roland, Starck and Boyer (“Responsabilité Dilictuelle, op.cit., 1996). Concerning predisposition of the victim “the traditional theory is that there is no reason to take into account any predisposition of the victim if the pre-existing state was revealed only by the accident. No doubt, this was one of the causes of the damage, but since it is not a cause based on fault, the victim must not be deprived of indemnification. (….) the predisposition of the victim, which cannot be held against him as a fault, and which incontestably helped to produce the damage, is not taken into account as an element which should bring about only partial liability for the accident”.