Risks and uncertainties of scientific innovations in French liability law: between radical departure and continuity.

• Author: Verges, Etienne
• Position: Technological Innovation and Civil Responsibility

The author investigates changes in French liability law that have occurred since the end of the nineteenth century as a result of innovation in science and technology and, in particular, of the risks and uncertainties attached to this phenomenon. This text explores the extent to which scientific and technological innovation has influenced legal innovation in the field of civil liability. The author seeks to address whether science- and technology-based legal developments resulted in radical departures from the general principles of civil liability, or rather take place within a continued evolution of the law. This study demonstrates that the impact of scientific and technological innovation on liability is ambivalent; changes in the French law of civil liability have constituted both a radical departure and a continuity of orthodox practice.

L'objectif de cette etude est de mesurer l'influence des sciences et technologies sur les evolutions du droit de la responsabilite en France depuis la premiere revolution industrielle jusqu'a nos jours. Cet article etudie comment le droit de la responsabilite a reagi face aux nouveaux problemes poses par les sciences et les technologies. Plus precisement, il s'interroge sur le fait de savoir si les innovations scientifiques ont provoque des ruptures radicales dans le droit de la responsabilite ou si celui-ci a pu s'adapter en appliquant ses principes generaux a des problemes nouveaux. L'etude montre que les deux phenomenes peuvent etre observes (rupture et continuite).

Introduction I. The Factual Bases of Liability (faits generateurs) A. Continuity and Radical Departure in die Application of the General Principles of Civil Liability 1. Changes to the General Principles of Civil Liability in Response to Innovation a. Fault-based Liability b. Liability for Damage Caused by Things in One's Charge 2. Adjustment of the General Principles of Civil Liability to the Specific Features of Scientific and Technological Innnovation a. Changes to Gross Negligence b. Separation of Custody of the Dung B. Departure in the Development of Special Liability Systems 1. Nuclear Energy 2. Space Activities 3. Medical Activities 4. Environmental Damage II. Injury for which Compensation Can Be Claimed A. New Types of Injury 904 B. Injury Forming an Exception to the General Principles of Civil Liability III. Causal Link 909 Conclusion Introduction

A fundamental feature of the fields of science and technology is innovation. (1) Innovation generates the unknown, and creates risky situations and uncertainty. These risks and uncertainties have caused some of the most significant changes in French civil liability law since the end of the nineteenth century. (2) The central question consequently becomes, to what extent does this innovation in science and technology create new developments in French liability law? More precisely, the purpose of this paper is to determine whether changes in the law of civil liability influenced by scientific innovations have translated into radical departures from general principles of civil liability (3) or, rather, have formed part of a continued evolution of these general principles. (4)

To answer this question, this article will analyze French liability law from a historical perspective, presenting an overview of this area of law. It will begin from the first pre-eminent case resulting from a technological accident (the Teffaine ruling of 1896) and will finish with the most recent rulings handed down in the areas of medical and environmental disputes. From a methodological perspective, this article will not scrutinize each legal mechanism in great detail. Rather, it will review a select group of momentous laws and precedents chosen for their significance and importance. In this way, it will be possible to present an overview of the subject in a comprehensive manner. (5) Taking as a baseline these notable examples, this article will show that technological and scientific innovation has not always led to legal revolutions. (6) The influence of science and tech nology on French civil liability has resulted in both disruption and continuity in the system.

This observation may seem paradoxical, but it is illustrated in one of the most famous rulings of French civil liability--the Teffaine decision. This ruling was the first important legal innovation in the area of liability law. (7) In this case, the explosion of a steam machine on a towboat killed a mechanic. The Cour de cassation attributed the cause of the accident to a "structural defect". The trial and appeal courts found that a faulty welding joint had caused the explosion. This case illustrates the link between technological advancement and uncertainty, as it was not possible to prove that the accident had been caused by unintentional fault.

To understand the significance of this decision, it is important to note that at the time of the Teffaine ruling, the notion of fault constituted both the legal and philosophical foundation of civil liability. The French Code civil, promulgated in 1804, established a general principle of liability for fault. This regime corresponds to a moralistic philosophy of liability. (8) This general principle is maintained in the current Code civil at article 1382. In conjunction with this general principle, article 1384 of the Code civil contains several specific regimes of liability. In Teffaine, the Cour de cassation used paragraph 1 (9) of article 1384 to create a new strict liability regime. This decision represents both a departure from and continuity with the general principles of civil liability. The departure is caused by the creation of a strict liability regime (10) that deviates from the general principle of fault-based liability found in article 1382 of the Code civil. However, the new legal rule created in Teffaine took its source from a forgotten paragraph of the Code civil. In relying on the Code, the Cour de cassation gave this new regime a certain degree of continuity.

Following the Teffaine decision, major legislative developments dealt with liability associated with science and technology. French legislation created various liability regimes in a wide variety of fields: aircraft operators (1924), damage caused by cable cars (1941), compulsory vaccination (1964), nuclear energy (1965 and 1968), hydrocarbon pollution (1977), highway accidents (1985), biomedical research (1988), defective products (1998), medical liability (2002), genetically modified organisms (2008), environmental liability (2008), and nuclear testing (2010). (11) The development of special statutes was marked by an increased number of strict liability cases, the appearance of new types of injury, and the recourse to presumptions of causality; each of these features will be explored below.

Since the 1980s, France has witnessed new trends in liability under the influence of a number of health and environmental controversies that provoked a public reaction: contaminated blood (HIV and hepatitis C, which involved suppliers and national solidarity), diethylstilboestrol (DES, which involved producers), asbestos (which involved employers, state, custodians of the thing, and national solidarity), growth hormone (which involved producers), nosocomial infections (which involved health institutions and national solidarity), multiple sclerosis related to vaccination against hepatitis B (which involved producers), waves (relay antennas/high tension electric lines, which involved GSM operators or electricity producer), oil spills (Erika case 2012, which involved producer and charter company), and industrial accidents (AZF Toulouse plant case 2012, which involved the operator).

Some of these cases were decided under the general principles of civil liability. For others, the courts relied on special liability regimes. The commonality between these decisions is that they created changes in civil liability rules, whether they concern the factual bases of liability (faits generateurs--see Part I below), the injury (Part II), or the chain of causation (Part III).

1. The Factual Bases of Liability (faits generateur

   Since the development of a general principle of strict liability at the turn of the twentieth century, classic civil liability as it applies to scientific and technological innovation has included two distinct systems: liability for "one's own actions" (fault-based liability) (12) and liability "for injury caused by things in one's charge" (strict liability). (13) An analysis of the jurisprudence demonstrates the dual phenomenon of continuity with and radical departure from general principles of civil liability (see Subsection A, below). Conversely, specific legislation has developed in one direction--that of an increase in strict liability regimes (see Subsection B, below).

   1. Continuity and Radical Departure in the Application of the General Principles of Civil Liability

      1. Changes to the General Principles of Civil Liability in Response to Innovation

         1. Fault-based Liability

            Liability for one's own actions (fault-based liability) is the principal regime of French civil law, originating in the 1804 Code civil. Even though this code was conceived in the nineteenth century, it is still adaptable to the specific features of scientific and technological innovation. In this field dominated by risk, the duties of vigilance are wide and varied. Scientists must be aware of the risks and must act to limit negative outcomes. The requirement for scientific vigilance within the fault-based regime is illustrated by two major rulings handed down by the Cour de cassation in 2006 in the Distilbene decision. (14) In France, until the 1970s, the industrial firm UCB Pharma produced a drug (Distilbene) to prevent premature births and spontaneous abortions. However, the use of this drug by pregnant women was proven to cause cancer in their female offspring later in life. Two decisions of the Cour de cassation determined...