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S. 1943. I. 106
Léo v. Etablissements Milliat frères
07 May 1943
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Professor Basil Markesinis

Cour de cassation, Chambre sociale

The Court:

Given that Anna Léo, a thirteen year old Italian citizen, was permanently disabled on 20 July 1936 through handling heavy cases in the Etablissements Milliat where she was employed, and that Gennaro Léo, her father, acting as legal administrator of his daughter, claimed damages from the firm on the basis of article 1382 and 1383 Code civil, the alleged faults consisting first in giving this little girl such a task to do and secondly in employing her in breach of the mandatory law prohibiting the employment of foreigners with no identity card; Given that prior to giving judgment on the merits, the Court of Appeal ordered an expert to report on whether the task imposed was beyond the strength of the child or was carried out in unsatisfactory conditions implying a fault on the part of the employer, but dismissed the second contention, and is now criticised for holding that, contrary to the view of the judges at first instance, the fact of breaching the law prohibiting the employment of a foreigner with no identity card was not enough to justify applying article 1382 Code civil, seeing that such fault was not a cause of the injury, although the injury could not have occurred but for that fault;

But given that the fact that young Miss Léo was present in the factory pursuant to a contract which was unlawful could not in this case constitute a fault on the part of the factory-owners unless her presence was the cause of the accident rather than merely the occasion of it; that in truth the mere presence of the child, as a foreigner employed in breach of the legislation to protect French nationals but old enough to be employed quite lawfully, did not expose her to any greater risk than any other worker or endanger her by having to do work beyond her strength; from which it follows that the well-reasoned and coherent decision of the Court of Appeal is justified in law and does not violate any of the texts cited;

For these reasons DISMISSES the application for review.

Subsequent Developments

Doctrine upheld ? (no confirmatory or contrary decision). The court of Cassation does not seem to have rules on this question since the date of this decision. Patrice Jourdain (Jurisclasseur “Resposabilité Civile et Assurances”, Fasc. 160”), adopting the analysis developed in the 1943 volume of Sirey, seems to accept that this doctrine be upheld, and develops the following argument: "In order to engender liability, the origin of damage must involve a defect, an anomaly: human fault; abnormal working of a thing. For it is this “defect” which must “explain” the damage. This means that it is the fault or the abnormal working of the thing, dissociated from the actual event in the course of which it occurred, which must be the necessary cause of the damage. Applied to liability arising out of human fault, this analysis amounts to a requirement that the very existence of fault, that is to say, the irregularity of the action or the illicit nature of the behaviour of the author of the damage, be the cause of damage. It is then possible to understand the reasons why certain decisions refuse to find the existence of a chain of causality when the harmful event (“fait dommageable”) is in fact undeniably causal. Thus, it has been held that the fact that an employer engaged a foreign workwoman in breach of the laws on foreign workers is not the cause of damage arising out of an accident in the workplace. (Soc., 7 May 1943). Clearly the engagement is a necessary in whose absence the damage could not have occurred; but what has to be asked is whether the fault – the irregularity of the engagement-, the only root of liability, is a necessary condition of the damage. It is clear that this is not so; for, without the irregularity, the damage would have occurred: if the worker had been French, or in conformity with the law, he would still have suffered the damage. Similarly, there is no chain of causality between the illegal sale of firecrackers by a hardware store to a child (in breach of a municipal order) and the fire caused by their abnormal use (being thrown into the ventilator of a factory): it was not proved that, had the firecrackers been sold legally, they would not have been used for the same purposes (Civ.1, 8 April 1986)”.