Challenges of Establishing Causality in Civil Liability Law: A Case Study

There is no shortage of writings to highlight the difficulties raised by the identification of causality in civil liability law (see e.g., C. Quézel-Ambrunaz, Definition of causality in French law: causality in European civil liability law. Causality in European civil liability lawEuropean Research Group on Civil Liability and Insurance [GRERCA], March 2010, p. 341). The present case provides a new example of the difficulties likely to emerge in the assessment of causality, the Court of Cassation considering that the court of appeal previously seized had doubly violated the rules governing the establishment of the causal link.

In this case, a woman is suffering from infertility. Two possible causes are identified: infection and exposure to distilbene. The experts who were consulted were unable to determine the certain cause of the damage, estimating that there was a 40% chance that it was linked to exposure to distilbene.

Before the Court of Appeal, the person thus affected as well as two of her relatives, including her husband, requested compensation for their damages. In particular, the pharmaceutical company that produced distilbene was asked to compensate for the damage resulting directly from infertility, but also, for the direct victim alone, from the damage caused by anxiety linked to its exposure, in uteroto distillbene with regard to the possible consequences of this exposure.

In either case, the court of appeal refused to recognize the liability of the pharmaceutical company, finding that it had not been demonstrated that exposure to distilbene was the cause of the damage. The Court of Cassation doubly disapproves of the Court of Appeal.

An inevitable reversal in the field of anxiety damage

To refuse to order the pharmaceutical company to pay compensation for…