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D.1996, 610 Case Association pour la gestion du poste de transfusion sanguine v. Mme X.
09 July 1996
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Professor B. S. Markesinis

Cour de cassation:

Given that Mme X was infected by the HIV virus when receiving transfusions of blood and frozen plasma in May 1983 and November 1986, these products having been supplied by the Association pour la gestion du poste de transfusion sanguine du Havre (the Association); that Mme X¿¿¿ made a claim before the Fonds d'indemnisation des transfuses et h?ophiles infected with HIV (the Fonds) and the Fonds offered her on 6 July 1992 the sum of 1,646,000 francs ¿¿¿in satisfaction of the entirety of the harm specifically due to the contamination¿¿¿, defined in the offer of the Fonds itself as ¿¿¿personal harm of a non-economic nature covering the whole of the disturbance in the conditions of life resulting from the infection including the development of AIDS itself¿¿¿; that Mme X, having accepted this offer on 30 July 1992, then sued the Association and a clinic in the civil courts, claiming damages for her moral damage (allowance being given for the sum received from the Fonds) and also for her economic harm, since her health no longer enables her to continue working as a nurse; that Mme X having died during the litigation her claim is being pursued by her husband;

On the sole ground of application for review, all three limbs: Given that the Association criticises the court of appeal (Rouen, 26 January 1994) for holding it liable for breach of its obligation to provide blood products free from any defect when, on the one hand, the inherent defect in the blood had the character of an external cause, of force majeure, and on the other hand the court omitted to take into account the failure of the public authorities to inform the public of the existence of contaminated parcels of blood, and that, finally, the harm was not foreseeable, so that the court below violated articles 1147, 1148 and 1150 Code civil;

But given that bodies supplying blood for transfusion are bound to supply the users with products free from defect and that they cannot exonerate themselves from this safety obligation except by proving some external cause; that the inherent defect in the blood, even if it was undetectable, did not constitute a cause which exonerated them, any more than the failure of the public authorities to give adequate information; that thus the complaints are baseless;

But on the three last limbs of the application: In view of article 47 of the Law of 31 December 1991 (no. 91-1406), article 1147 Code civil and article 31 New Code of Civil Procedure:

Given that the court of appeal granted the claim of Mme X as to her moral harm on the ground that article 47 of the Law of 31 December 1991 did not bar it; that it evaluated this harm at 1,800,000 francs, and having ascertained that Mme X had received the sum of 1,646,000 francs from the Fonds for the same head of damage held the Association liable to her for the difference, namely 154,000 francs;

But given that a victim who has accepted an offer of indemnity which under article 47(3) of the Law of 31 December 1991 amounts to compensation for the whole of the harm specifically due to the infection has no interest in seeking a further indemnity for the same head of loss; that the court of appeal, having held that the moral damage for which she was seeking compensation was specifically due to the infection, failed to draw the correct legal conclusions from its own findings; ¿¿¿

For these reasons QUASHES and ANNULS the decision only in so far as it allowed the claim for moral harm and awarded 154,000 francs under that head of damage….

Subsequent Developments

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

Civ 9 July 1996: The liability of a supplier of blood is understood strictly and the defence based on the risk of development as defined by the Directive - which was not applied - is inoperative insofar as this Directive is optional and not obligatory for the member states. Asserting the non-compulsory character of the Directive where the concept of the risk of development is concerned, and consequently the right for member states to introduce, or not, into their internal legislation an exemption for the risk of development, is irrelevant today in view of the transposition of this Directive into French law by the Law of the 19 May 1998. However, on the question of the risk of development itself, a risk which the Cour de cassation did not recognise as exempting from liability in its judgments of the 9 July 1996, accepting on the contrary the liability of the suppliers of contaminated blood on account of realisation of this risk (the internal defect in the product, even if it was undetectable at the moment of the transfusion, involved liability on the supplier's part), there is a debate amongst legal writers today about whether to maintain this case law which seems now to be contrary to article 1386-11-4 of the Code civil (exemption of the producer from liability when "the state of scientific and technical knowledge at the moment when he put the product into circulation did not allow the detection of the existence of the defect"). It will be noted nevertheless that the European Court of Justice (judgment of the 29 May 1997) followed by a judgment of the Toulouse court of appeal of the 22 February 2000 plainly introduces this condition of exemption: the standard of knowledge to which reference is made should in particular be the most advanced possible; the impossibility of detecting the defect in question must therefore take on an absolute character to exonerate the supplier effectively.

Translation by Raymond Youngs