PRECAUTIONARY PRINCIPLE and CIVIL LAW
Judge Christian Byk , Court of appeal, Paris and Secretary general,
International Association of Law, Ethics and Science
The precautionary principle finds its origin in international law and in the field
of the environment but he quickly invested national law and expanded its scope
to health issues, as shown by the health crisis that occurred in France since the
1980s. What is the room left to civil law? The reality of a certain 'dialogue'
brings a denial to those who saw the marriage of water and fire (I). In fact, civil
law uses the concept of precaution in consideration of the question of liability
because the precaution has become an element of assessment of the conditions
of liability and its effects (II).
I The rapid adoption of the precautionary principle in civil law
cases
A The marriage of fire and water?
What are the differences that exist between precautionary principle and civil
liability? What consequences can have the adoption of the precautionary
principle in the law of responsibility?
Logics which are apparently contradictory
The precautionary principle anticipates the risk while civil liability regulates its
consequences. It is therefore aimed more at collective risk. Its direct recipients
are primarily public authorities while civil liability is primarily aimed at
individual damages falling under the responsibility of private individuals.
The precautionary principle mobilizes new concepts: the existence of risk of
serious or irreversible damage, the lack of absolute scientific certainty, the
requirement to take precautionary measures. Conversely, in civil liability, only
future and certain damage may be compensated.
In fact, the precautionary principle applies not only to public authorities. It also
influences the law of civil liability but this influence does not lead to radical
changes.
B Factors of integration of the precautionary principle in civil law
1) Caution
As early as 1862, the highest French Court stated that, in the exercise of each
profession, "it is general rules of common sense and caution to which everyone
must obey above all".
Then, the duty of caution was clearly associated with the risks arising from the
development of the railway .But it has flourished in 1936 in medical liability
jurisprudence when the Supreme Court ruled that the duty of care required the
doctor to give the patient «conscientious and attentive care which should be
compliant with acquired medical knowledge. »
But caution, which implies to organize his conduct to take into account known
risks, differs markedly from precaution, which confronts the doctor (or any other
actor) at the risk of uncertainty.
2) The logic of precaution as an extension of the principle of prevention to
uncertain risks
It is for the Court to ensure a fair balance between vigilance ahead of uncertainty
and the need not to give too much importance to the measures of prudence. This
invitation is a reminder of the following guiding principles: moderation and
proportionality. Furthermore, by applying a safety requirement to health
products, the judge applied them the precautionary principle.
But, in the absence of a duty of security, do civil liability rules allow to
implement the precautionary principle?
II The influence of the concept of precaution on the fundamental
characters of civil liability
Not only civil law judge does not ignore the importance of the precautionary
principle but he uses it to show that liability may address new issues. The
fundamental characters of civil liability are thus revisited with regard to the
concept of precaution and this influence affects also the consequences of civil
liability and the rules of procedure.
A The evolution of the characters of civil liability
First, the judge is not locked within the constitutional limits. Article 5 of the
Charter of the environment concerns only the public authorities but, through
civil liability, the precautionary principle also applies to private individuals.
1) The damage
The jurisprudence allows compensation for future injury. But what about the
potential damage, understood as a future injury which is uncertain?
a) The known risks
-The first case relates to financing preventive measures of achievement or
aggravation of the damage. In any event, the certainty of the damage is
maintained and the risk must be real, imminent and serious and prevention
needed to prevent the occurrence of the damage.
-In the second case, the compensation will aim to repair economic damage
(impairment in value of a property exposed at risk, for example) or moral (the
injury of anguish). This is recognized for harm caused by the contamination of a
virus, the inhalation of dusts of asbestos or defective cardiac sensors. It is the
same in the neighborhood disturbances (the neighbor of a golf course is forced
to live under the threat of projections of golf balls).
b) The unknown risks
The Court of cassation 2011 report asks the question: can we extend the
applicable jurisprudence concerning imminent damage to any potential
damages?
- The potential damages
A decision by May 15, 2008, of the Court of cassation shall compensate damage
potential, "which already carries all the conditions of its realization" but the
distinction of the potential damage to the virtual damage, which alone would be
hypothetical, is not always easy.
-The hypothetical damages -
This applies to GMOs, nanotechnology, mobile telephony and health products.
. The reminder of the certainty of the damage requirement
The use of civil liability is facing an obstacle due to the absence of known
damages, existing or future because, in one of the few cases where the
application of the precautionary principle has been invoked, the Court of
cassation ruled that it there in no liability in the absence of known damage.
 The judge and the mobile telephony
If several courts have admitted, on the basis of the abnormal neighborhood
disturbance, the existence of a legitimate fear resulting from a hypothetical
prejudice, this is not the opinion of the Court of cassation.
Its 2011 report notes: "the condition of certainty of harm tolerates a certain
hazard. If it is small, the action for compensation will not meet with the rule
excluding the hypothetical harm. This is the reason why we should probably
prefer the term of "imminent harm" to the notion of 'risk of harm '.
2) The fault
The Court of cassation nevertheless accepts to incorporate the precautionary
principle influence without mentioning it but when it is mentioned, it is to reject
its autonomy.
- The influence of the precautionary principle
It follows that someone may be more severely liable in certain circumstances.
* Obligation of safety
Appeared for the first time in 1911 in the contract of transport, it was applied to
the producers of defective products such as blood and extended to medical
equipment and the protection of the health of workers.
 Obligation of vigilance
Recognized by the Court of cassation in the case of the Distilbène, this
contractual obligation of vigilance could spread to other areas of law to
strengthen foreign activity of health safety obligations.
- Remaining within the framework of the rules of civil liability
The Court of cassation held always on the basis of breach of an obligation
whose shall constitute a fault. It took until 2010-2011 (case of the mineral water
spring and matter of the high-voltage line) to decide explicitly on the principle
but it was to reject applications appeals for lack of harm for the first case or
causation for the second (cf. infra).
3) The causal link
The Supreme Court reaffirmed the existence of a direct and certain causal link
but accepts that the existence of this link is demonstrated by presumptions.
a) Cases concerning the responsibility of the manufacturers of vaccines
against hepatitis B
By five decisions of May 22, 2008 relating to the vaccination against the virus
of hepatitis B, the Court of cassation has accepted the use of presumptions if
they are serious, precise and concordant.
b) The case of the high-voltage line
In this decision, the Court of cassation considered that "the Environmental
Charter and the precautionary principle did not challenged the rules according to
which it belongs to those seeking compensation for the damage... to establish
that the injury was the direct and certain consequence of the damage and that
this demonstration, without requiring
But the implementation of this reasoning led to reject in serial risks some cases
at the same time where we accept others, hence the discontent of some victims.
To remedy to this, it seems to us that the Court of cassation could benefit the
victim of a presumption of causation where, failing to show the direct and
certain injury, it shows a fault of caution borne by the defendant.
B Consequences of the precautionary principle on the conditions of an
activity
To prevent the achievement of damage or its aggravation due to illegal activity,
it comes to condemn its author to take the necessary measures for its prevention:
conducting works, to destroy a building or to close a facility. The question of the
mobile phone shows that the subject is controversial.
1) The opposed opinions of judges
In urgent procedure, a majority of decisions rejects the applications because the
imminence of the injury or the manifestly unlawful trouble conditions are not
met. But opposite decisions have been based on a "potential danger", a 'risk
which cannot be neglected' or «a legitimate fear of direct damage to health".
With respect to the trial judge, a paradox is clear: when the requests are
accepted, it is not on the ground of the precautionary principle but on the basis
of abnormal neighborhood disorder! The theory of abnormal neighborhood
disturbance and the theory of civil liability are consequently denatured by the
precautionary principle. Therefore, it would be preferable to establish a specific
preventive action.
2) Towards a specific preventive action?
Civil liability is aiming at repairing damage. Without excluding incidental
prevention function, it is not possible to consider it in the absence of damage.
But to establish a specific preventive action to implement the precautionary
principle, it would be enough to relax the conditions of civil liability. Its
requirements should focus on the risk and the damage (severe and irreversible).
Conclusion
In the light of this analysis, the precautionary principle is likely to have
consequences in law of civil liability. At a minimum, it renewed the eciation of
the operative event, the damage and the causal link. At maximum, it can become
a new principle of the law of civil liability, which will imply a preventive and
collective action. A second point of view considers that to admit that liability
could take place without damage would be a denaturation of civil liability.
However, by its dynamism, the precautionary principle is both a principle of
civil liability - an enhanced vigilance obligation - but also a principle of
procedure as it belongs to the one is responsible for this obligation of vigilance
to demonstrate that he has taken all measures to evaluate effective and
proportionate risk.