Country:
France
Court:
Cour de Cassation, 2 civ., 20 Nov 2003; Consorts Gourlain contre SA SEITA, pourvoi n° 01-17.977, Bull. civ. II, n° 355; JCP 2004.II.10004; Dalloz 2003.2902, conclusions Kessous, note Grynbaum.
Topics:
Tobacco
Causal link
Articles:
Facts:
Mr Gourlain smoked two packs of non-filter Gauloises cigarettes per day from the age of 13 onwards. In 1988, he was diagnosed as suffering from lung cancer, but continued to smoke. In 1995, he suffered from cancers of the lung and tongue. He died during the legal proceedings on 7 January 1999.
In 1996, Mr Gourlain, and his next-of-kin, launched a damages action against the Société d'Exploitation Industrielle des Tabacs et Allumettes (Seita), the former tobacco monopoly on the grounds of tort liability.
In a decision handed down on 8 December 1999, the First Instance Court of Montargis held the Seita liable for the damage suffered by Mr Gourlain. It held that the defendant had indeed committed a fault in failing to warn Mr Gourlain (in the period prior to obligatory health warnings in 1976) of the potential health risks, resulting in the fact that the claimant had "lost the chance to take a decision likely to prevent this risk, i.e. the decision not to start smoking."
Following an appeal by the Seita, the Orleans Court of Appeal overturned the Montargis decision on 10 September 2001. The CA held that, before 1976, Seita which was then a public entity under the supervision of the French Ministry of Finance, could not be blamed for a failure to provide warning and information at a time when the French public authorities (health and finance) disagreed on whether such a warning was necessary.
Decision:
The Cour de cassation upheld the decision of the Court of Appeal, dismissing the claims made against the Seita.
On the grounds of Article 1382 of the French Civil Code, the Cour de Cassation upheld the Court of Appeal's decision that Seita had not been in breach of an obligation to provide information to smokers for the period before 1976. The Seita could not be blamed for a failure to take steps which fell to the French governmental authorities, different Ministries of which were divided on the issue of the modalities and need to provide such information.
As for the period from 1976 onwards, subsequent to which health warnings were obligatory, the Cour de Cassation also dismissed the claimants' allegations that the defendant had failed to follow to the letter the obligations to apply health warnings and had sought to minimise the dangers of smoking.
It was held that Mr Gourlain could not have been unaware of the harmful effects of tobacco, due not only the health warnings but also due to extensive information provided by the media. He was the sole person to be able to take the decision to continue or quit smoking. Although health warnings might have influenced a new smoker or someone thinking about taking up smoking, it is improbable that Mr Gourlain, who continued to smoke after being diagnosed with lung cancer in 1988, would have changed his behaviour on the basis of health warnings, if they had been rigorously in accordance with the law.
According to the Court it had not been shown that any of the faults attributed to the Seita after 1976, had played any role in the smoking habit formed by Richard Gourlain over a period of years. There was thus no proven causal link between the allegations concerning information provided to smokers and loss sustained by Mr Gourlain.
On the grounds of Article 1384 of the French Civil Code, the Cour de Cassation also upheld the Court of Appeal of Orleans's decision, ruling that the theory of French law distinguishing between the garde du comportement and garde de la structure (see overview on France for further discussion of this) is limited to products which have their own "internal dynamism" and are dangerous, which was not the case of cigarettes.
Comments:
This is the first tobacco-related damages health claim to be heard by the French Cour de Cassation. Although there are a still number of outstanding individual claims before the lower courts, the decision of the Cour de Cassation makes it very difficult for any claimants to succeed in the future.
In its decision, the Cour de Cassation emphasised the individual responsibility of the smoker. This aspect was developed in more detail by the Avocat Général Kessous, in his conclusions in this case which were followed by the Cour de Cassation. He stated that "the principal lesson to draw from the Court of Appeal decision, as well as the [decision] I ask you deliver, is that in the complexity of modern life, where the living conditions imposed upon us can affect out ability to make sound judgments and decisions, there are still some areas where personal liability and freewill exist."
As a consequence of their failure to gain damages before the civil courts, the Gourlain family announced recently that they were planning to bring a claim against the French State, for its failure to take necessary action for the provision of information regarding health risks.
It should be noted that aside from the individual claims, there is still a parallel case being brought by the health insurer Caisse Primaire d' Assurance Maladie (CPAM) against a number of cigarette manufacturers and tobacco producers based on the failure to provide adequate information to smokers. The Tribunal de Grande Instance de Saint-Nazaire rejected the claim in a decision on 29 September 2003. An appeal has been lodged.
