un précédent célèbre sur le trust
Knight v. Knight 1840, Lord Langdale :
As a general rule, it has been laid down, that when property is given absolutely to any person, and the same person is, by the giver who has power to command, recommended, or entreated, or wished, to dispose of that property in favour of another, the recommendation, entreaty, or wish shall be held to create a trust. First, if the words are so used, that upon the whole, they ought to be construed as imperative ; Secondly, if the subject of the recommendation or wish be certain ; and, Thirdly, if the objects or persons intended to have the benefit of the recommendation or wish be also certain. In simple cases there is no difficulty in the application of the rule thus stated.
If a testator gives £1000 to A. B., desiring, wishing, recommending, or hoping that A. B. will, at his death, give the same sum or any certain part of it to C. D., it is considered that C. D. is an object of the testator’s bounty, and A. B. is a trustee for him. No question arises upon the intention of the testator, upon the sum or subject intended to be given, or upon the person or object of the wish.
So, if a testator gives the residue of his estate, after certain purposes are answered, to A. B., recommending A. B., after his death, to give it to his own relations, or such of his own relations as he shall think most deserving, or as he shall choose, it has been considered that the residue of the property, though a subject to be ascertained, and that the relations to be selected, though persons or objects to be ascertained, are nevertheless so clearly and certainly ascertainable—so capable of being made certain, that the rule is applicable to such cases.
On the other hand, if the giver accompanies his expression of wish, or request by other words, from which it is to be collected, that he did not intend the wish to be imperative : or if it appears from the context that the first taker was intended to have a discretionary power to withdraw any part of the subject from the object of the wish or request : or if the objects are not such as may be ascertained with sufficient certainty, it has been held that no trust is created. Thus the words “free and unfettered,” accompanying the strongest expression of request, were held to prevent the words of the request being imperative. Any words by which it. is expressed or from which it may be implied, that the first taker may apply any part of the subject to his own use, are held to prevent the subject of the gift from being considered certain ; and a vague description of the object, that is, a description by which the giver neither clearly defines the object himself nor names a distinct class out of which the first taker is to select, or which leaves it doubtful what interest the object or class of objects is to take, will prevent the objects from being certain within the meaning of the rule ; and in such cases we are told (2 Ves. jun. 632, 633) that the question “never turns upon the grammatical import of words—they may be imperative, but not necessarily so ; the subject-matter, the situation of the parties, and the probable intent must be considered.” And (10 Ves. 536) “wherever the subject, to be administered as trust property, and the objects, for whose benefit it is to be administered, are to be found in a will, not expressly creating a trust, the indefinite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the Court as evidence, that the mind of the testator was not to create a trust ; and the difficulty, that would be imposed upon the Court to say what should be so applied, or to what objects, has been the foundation of the argument, that no trust was intended ;” or, as Lord Eldon expresses it in another case (Turn. & Russ. 159), “Where a trust is to be raised characterised by certainty, the very difficulty of doing it is an argument which goes, to a certain extent, towards inducing the Court to say, it is not sufficiently clear what the testator intended.”
I must admit, that in the endeavour to apply these rules and principles to the present case, I have found very great difficulty ; that in the repeated consideration which I have given to the subject, I have found myself, at different times, inclined to adopt different conclusions ; and that the result to which I have finally arrived has been attended with much doubt and hesitation.
The testator, at the date of his will, was entitled in fee to a large real estate, and absolutely entitled to a very considerable personal estate. Of the largest part of the real estate he had been tenant in tail, under the dispositions made by his grandfather Richard Knight ; he had suffered recoveries, whereby he became entitled to the same estate in fee ; and the question is, whether by the will he meant to impose on his brother, Thomas Andrew Knight, the trust or duty of making such a settlement as is alleged by the Plaintiffs ; or such a settlement upon some of the male descendants of the grandfather as would, under the will of Thomas Andrew Knight, give a right to the Defendant, Thomas Knight of Pap Castle ; or did he mean that his brother was to have over the estate the same power which he himself had acquired and enjoyed ; and which by his will he exercised for the purpose of transmitting the estate to the next male heir of his grandfather, and which he wished his successors to use in the same manner for the further transmission of the estates in the same line. And I am of opinion, though, I admit, after great doubt and hesitation, that the testator did not intend to impose an imperative trust on his successor, and that his will ought not to be construed to have that effect.
As he who had made himself absolute owner of the property had conceived himself bound in honour to transmit it to the male line of his grandfather, so he wished the same sentiment to govern his successors. He was pleased to speak of the honour and integrity of his family, and he expressed his trust or reliance on the justice of his successors ; but it does not appear to me that he intended to subject them, as trustees, to the power of this Court, so that they were to be compelled to do the same thing which he states he trusted their own sense of justice would induce them to do. It is a common observation in all such cases, that the testator might, if he had intended it, have created an express trust ; but the authorities shew that if there be sufficient certainty, and nothing in the context of the will to oppose the conclusion, the trust may and must be implied ; and the question is, whether there is a trust by implication.
He gave all his estates, real and personal (except as therein mentioned), to his brother, or to the next descendant in the direct male line of his grandfather, who should be living at the time of his death. The gift is in terms which make the devisee the absolute owner, and give him the power of disposing of the whole property (with such exceptions as are mentioned) as he pleases. The exceptions, deductions, or reservations consist of certain gifts for charitable and other purposes ; and he constitutes his devisee sole executor and trustee to carry his will into execution, “confiding in the approved honour and integrity of his family to take no advantage of any technical inaccuracies ;” and the context appears to me to shew, that these words relate to the reservations which he had made out of the general devise and bequest to his brother or the next descendant in the direct male line of his grandfather. The expressions used in his great bequest to the British Museum, afford additional evidence of his wish to maintain the distinction of his family in the same line ; but I think that the question in the cause depends on the effect to be given to the last sentence in the will. Having given all his estates, real aud personal, to his successor, that is, the next male descendant, and having given a few legacies, he says, “I trust to the liberality of my successors to reward any others of my old servants and tenants according to their deserts, and to their justice in continuing the estates in the male succession, according to the will of the founder of the family, my above-named grandfather Richard Knight.”
In this passage there is no doubt of the wish, or of the line of succession, in which the testator desired the estates (whatever he meant by that term) to devolve or be transmitted.
Contemplating his successors, and, as it would seem, all his successors without limit in that line, he says, that he trusts to their liberality for one purpose, and to their justice for another. So far as he trusts to their liberality to reward any of his old servants or tenants, according to their deserts, he cannot be understood to have intended to create an imperative trust. Notwithstanding the use made of the word “trust,” an indefinite discretion was, in that respect, left with the successors ; and it is difficult to suppose, that having in this sentence used the word “trust” in a sense consistent with an indefinite discretion in the person trusted, he should, in the same sentence, use the word “trust” in a sense wholly inconsistent with such discretion ;—in a sense which imposed an absolute obligation to resort to the most refined subtleties of the law for the purpose of executing a trust in such a manner as to preserve, by compulsion, the succession to the estate in the same line for the longest time possible. Admitting the wishes of the testator, which seem to me sufficiently expressed, I have found an insuperable difficulty in coming to a satisfactory conclusion that he did not intend to rely on the honour, integrity, or justice of his family or successors for the performance of his wishes, but did intend to impose upon his successors an obligation to be enforced by legal sanction : and the impression arising from the last words in the will appears to me to be increased by a consideration of the preceding parts. He gave absolute estates ; as to the gifts to other persons, he confides in the approved honour and integrity of his family that no advantage will be taken of technical inaccuracies to defeat them ; and as to the succession of the estates intended to pass in the line he had chosen, he trusts to their justice. It seems to me, as if he had said, “you see my sense of what is due to the founder of the family ; under his will, I have inherited the estates which his industry and abilities acquired, and of which he had, therefore, the best right to dispose. I have, by my own act, made myself absolute master of the estates, but I think it just to continue the succession in the same manner : this I do by my will, and I trust to your justice to do the like.” If this were his meaning, it is consistent with an intention that each successor should take from his immediate predecessor, by gift proceeding from a sense of justice, or by descent from the same motive, an absolute interest in the estates ; and that the continuance in the line designated should be provided for in that way.
I think, therefore, that there is great reason to doubt the intention to create an imperative trust : and looking to the subject to which his wishes were directed—observing the absolute gift of all his estates, real and personal, with certain exceptions ; and that, in the last clause, he has not used the words “my said estate,” or any words clearly and certainly indicating all that he had given to those whom he has called his successors, but had simply used the words, “the estates,” leaving it be matter of by no means easy construction, whether he intended under that expression to include the personal estate as well as the real ; and it not being certain, having regard to the subsequent reference to the will of his grandfather, whether he meant to include more than the estates of his grandfather, to which he had himself succeeded ; and observing that some part of the personal estate, at least, was subjected to the liberality of his successors, I think that there is reason to doubt whether the subject is sufficiently certain for a trust of this nature.
The objects do appear to me to be indicated with sufficient certainty, and it seems to me clear in what order he wished them to take. But, unless they were to take successively as absolute owners, I cannot discover what estates they were intended to take. I have not been able to persuade myself that the testator meant to tie down his successor to make such a settlement as is proposed by the Plaintiffs, and nothing less would give the Plaintiffs any right to ask for a decree of this Court in their favour ; and if I might be permitted to adapt the words of Lord Rosslyn, in the case of Meggison and Moore (2 Yes. jun. 633), to the circumstances of this case, I should say, that “if I were imperatively to declare that the successors designated by the will should take only for life and their issue in strict settlement, I should do a thing most foreign to the testator’s intention. His successor might have done what is suggested. The testator intimated a wish to him, and gave sufficient power ; but I cannot say that he has left it to the Court of Chancery to accomplish his wishes.”
On the whole, I am under the necessity of saying, that for the creation of a trust, which ought to be characterised by certainty, there is not sufficient clearness to make it certain that the words of trust were intended to be imperative, or to make it certain what was precisely the subject intended to be affected, or to make it certain what were the interests to be enjoyed by the objects.
It appears to me, therefore, that the Plaintiffs have not made out any title, and that the bill ought to be dismissed.
LA FIDUCIE, UNE INSTITUTION QUI RENFORCERAIT L’ATTRACTIVITÉ DU DROIT FRANÇAIS
Rapport du sénateur de Richemont, 2006
Si l’usage du trust s’est notablement développé, tel est également le cas de la fiducie, désormais introduite dans de nombreux Etats de tradition civiliste.
1. La généralisation du trust anglo-saxon et l’essor de la fiducie dans les pays de tradition civiliste
L’institution du trust anglo-saxon s’est considérablement développée ces dernières années. L’Ecosse, le Lichtenchtein, l’Afrique du sud, l’Ethiopie, Israël, Porto-Rico, le Japon, la Fédération de Russie, la Chine et l’Uruguay se sont ainsi dotés, plus ou moins récemment, de mécanismes identiques ou similaires au trust anglais ou nord-américain.
Sa version « civiliste », la fiducie, a également connu un développement récent.
Au Luxembourg, le règlement grand-ducal du 19 juillet 1983 relatif aux contrats fiduciaires des établissements de crédit a institué, pour la première fois, le contrat fiduciaire, par lequel « une personne, le fiduciant, convient avec un établissement de crédit, le fiduciaire, que le fiduciaire sera rendu titulaire des droits patrimoniaux, l’actif fiduciaire, mais que l’exercice de ces droits patrimoniaux sera limité par des obligations, le passif fiduciaire, déterminées par le contrat fiduciaire »20(*).
Abrogée récemment, cette disposition a été partiellement reprise par la loi du 27 juillet 2003 relative au trust et aux contrats de fiducie, dont l’article 5 dispose qu’un contrat fiduciaire est le contrat « par lequel une personne, le fiduciant, convient avec une autre personne, le fiduciaire, que celui-ci, sous les obligations déterminées par les parties, devient propriétaire de biens formant un patrimoine fiduciaire. »
Le droit québécois, de nature civiliste, fait également place à la fiducie. Les articles 1260 et suivants du code civil du Québec prévoient ainsi cette institution juridique résultant « d’un acte par lequel une personne, le constituant, transfère de son patrimoine à un autre patrimoine qu’il constitue, des biens qu’il affecte à une fin particulière et qu’un fiduciaire s’oblige, par le fait de son acceptation, à détenir et à administrer ».
La loi n° 520 du 6 juin 1993 relative au développement du marché financier et des contrats fiduciaires a introduit en droit libanais le contrat fiduciaire, défini comme « l’acte par lequel une personne physique ou morale appelée le fiduciant, confie à une personne appelée le fiduciaire, le droit de gérer et de disposer pour une durée déterminée, de droits ou de biens mobiliers, dénommés les avoirs fiduciaires. »
En dernier lieu, l’Italie a introduit, par la loi n° 51 du 23 février 2006, la fiducie dans son droit interne. L’article 2645 ter du code civil italien prévoit en effet la possibilité de créer, pour une durée maximale de quatre-vingt dix ans ou jusqu’au décès du bénéficiaire, un patrimoine séparé du patrimoine d’une personne juridique déterminée, soumis à des conditions de « destination ». Ce dispositif nouveau permet de dépasser les possibilités jusqu’alors offertes par l’article 1344 du code civil italien qui, tout en permettant le negozio fiduciario, n’admettait pas l’autonomie totale du patrimoine d’affectation.
2. La nécessité d’introduire formellement la fiducie afin d’éviter que, pour des opérations purement françaises, des droits étrangers soient utilisés
Dans ce contexte, il est donc important de doter notre droit d’une institution souple qui serait de nature à renforcer l’attractivité de notre législation.
En effet, on constate depuis plusieurs années que certaines opérations financières d’envergure échappent au droit français alors même qu’elles concernent des sociétés ou groupes de sociétés de nationalité française. En l’absence de mécanisme fiduciaire à large champ d’application en droit français, certaines sociétés françaises ont recours à des trusts étrangers, ce qui implique des transferts de fonds de la France vers l’étranger qui génèrent eux-mêmes une ou plusieurs activités économiques ou financières hors de nos frontières.
Il faut ainsi rappeler que, dans le milieu des années 1980, la société Peugeot, n’ayant pu mener à bien, sur la base du droit français, une opération de « defeasance » de ses actifs douteux, a dû se tourner vers le droit américain.
Quelques exemples d’utilisations possibles de la fiducie « à la française » pour les entreprises
- Création de structures permettant de garantir des engagements futurs, tels que des engagements de retraite ou des engagements financiers liés à la dépollution de sites industriels.
- Mise en place d’opérations d’épargne salariale : certains droits étrangers ne connaissant pas les systèmes de fonds communs de placement d’entreprise (FCPE), la fiducie peut constituer un instrument permettant d’assurer de telles opérations dans le cadre d’un actionnariat direct.
- Création d’une structure ad hoc de gestion de participations au sein de groupes de sociétés : pourrait être ainsi évitée la constitution d’une société holding, plus lourde qu’une fiducie instituée contractuellement.
- Création d’une structure de gestion dans le cadre d’un rapprochement d’entreprises : dans le cadre d’opérations de concentration, dans l’attente de la décision de l’autorité publique, la société acquise pourrait être gérée dans le cadre d’une fiducie, afin que cette gestion s’effectue de manière indépendante du nouvel actionnaire.
- Création d’une structure de defeasance : une entreprise transfère à un fiduciaire un ensemble de dettes et d’actifs, le fiduciaire étant chargé du service de la dette. L’entreprise peut alors se concentrer sur son activité économique et son redressement.
- Création d’une structure permettant d’isoler un ensemble d’actifs à titre de sûreté.
Par ailleurs, dans le cadre de sa récente restructuration, le groupe Alstom a été conduit à créer un trust anglo-saxon. Plus récemment, afin de mettre en place le jeu « Euromillions », la société La Française des jeux a dû s’allier à d’autres entreprises de jeux européennes dans le cadre d’un trust implanté au Royaume-Uni, faute d’un instrument juridique comparable en France.
L’institution d’un régime de fiducie pourrait donc être une réponse au choix fait par des entités juridiques françaises de soumettre certaines de leurs activités à des droits étrangers qui présentent plus de souplesse en termes de montages juridiques. La fiducie « à la française » pourrait par ailleurs permettre d’attirer des entités étrangères sur le sol français et ce, d’autant plus que la France n’a toujours pas, à ce jour, ratifié la convention de La Haye du 1er juillet 1985 relative à la loi applicable au trust et à sa reconnaissance21(*).
Lors d’un séminaire relatif à « l’attractivité du territoire », réuni sous la présidence de notre excellent collègue Jean-Pierre Raffarin, alors premier ministre, le 7 février 2005, le Gouvernement a d’ailleurs souhaité relancer l’introduction d’un tel instrument en droit français.
Mais cette demande est, avant tout, celle des praticiens. Les représentants des entreprises, des banques, des assurances ainsi que des cabinets d’avocats d’affaires ont plaidé, lors des auditions menées par votre rapporteur, pour l’introduction d’un mécanisme juridique souple et efficace, permettant de concurrencer l’institution anglo-saxonne du trust.
textes sur les contrats
Summary of Carlill v. Carbolic Smoke Ball Co.  Q.B. 256 (C.A.)
Facts Carbolic Smoke Ball Co. (D) manufactured and sold The Carbolic Smoke Ball. The company placed ads in various newspapers offering a reward of 100 pounds to any person who used the smoke ball three times per day as directed and contracted influenza, colds, or any other disease. After seeing the ad Carlill (P) purchased a ball and used it as directed. Carlill contracted influenza and made a claim for the reward. Carbolic Smoke Ball refused to pay and Carlill sued for damages arising from breach of contract. Judgment for 100 pounds was entered for Carlill and Carbolic Smoke Ball appealed. Issue • Does one who makes a unilateral offer for the sale of goods by means of an advertisement impliedly waive notification of acceptance, if his purpose is to sell as much product as possible ? Holding and Rule (Lindley) • Yes. One who makes a unilateral offer for the sale of goods by means of an advertisement impliedly waives notification of acceptance if his purpose is to sell as much product as possible. The court held that a person who makes an offer may decline to require notice of acceptance if he or she wishes. One who makes an offer dispenses with the requirement of notice of acceptance if the form of the offer shows that notice of acceptance is not required. To accept an offer, a person need only follow the indicated method of acceptance. If the offeror either expressly or impliedly intimates in his offer that it will be sufficient to act without giving notice of acceptance, performance is sufficient acceptance without notification. The court held that an advertisement is considered to be an offer when it specifies the quantity of persons who are eligible to accept its terms. If such an advertisement requires performance, the offeree is not required to give notice of his performance. The court addressed the issue of whether the ad was intended to be a promise or whether it was merely “puffing”. The court pointed to Carbolic Smoke Ball’s claim in the advertisement that it had deposited 1000 pounds with Alliance Bank, which the court decided was intended to demonstrate the company’s sincerity in paying the reward. Concurring (Bowen) Notification of acceptance is required under our law. The person who makes the offer may dispense with notice to himself if he thinks it desirable to do so. He may expressly or impliedly create any method of acceptance for his offer. An offeree need only follow the method indicated for acceptance. The requirement of notice of acceptance to the offeror must be determined by an objective reasonable person standard. In the advertisement case, it seems to me that an inference may be drawn from the transaction itself that a person is not to notify his acceptance of the offer before he performs the condition, but that if he performs the condition notification is dispensed with. We must look to the essence of the transaction and what the offeror is bargaining for under the circumstances. Under these facts, the defendant impliedly indicated that it did not require notification of acceptance of the offer. Disposition Appeal dismissed.
The Indian Contract Act, 1872, 2d
d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise
Uniform Commercial Code (USA)
U.C.C. - ARTICLE 2 - SALES ..PART 3. GENERAL OBLIGATION AND CONSTRUCTION OF CONTRACT § 2-301. General Obligations of Parties. The obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in accordance with the contract. § 2-302. Unconscionable contract or Clause. (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.
Summary of Krell v. Henry, 2 K.B. 740 (1903)
Facts Henry (D) contracted to use Krell’s (P) flat in London to view the coronation procession of King Edward VII. Under the terms of the contract Henry was granted use of the flat for two days in exchange for 75 pounds, but the contract did not mention the purpose of Henry’s use. Henry refused to honor the agreement after the King became ill and the coronation was postponed. Krell sued for the balance due under the contract and Henry countersued for the return of his deposit. The lower court cited Taylor v. Caldwell and entered judgment for Henry on the grounds that the coronation was an implied condition in the contract. Krell appealed. Issue Under what circumstances will a party be excused from performance when an unforeseen supervening event occurs ? Holding and Rule Performance will be excused when the purpose of a contract is frustrated by an unforeseeable supervening event and the purpose was within the contemplation of both parties when the contract was executed. A contract’s purpose may be inferred from surrounding circumstances. Where a contract indicates that the parties knew that it could not be fulfilled unless some particular specified thing continued to exist, such that the parties must have contemplated the continued existence of that thing as the foundation of the performance ; then in the absence of an express or implied warranty that the thing shall continue to exist, the contract is subject to implied condition that performance will be excused if that thing ceases to exist without fault of either party. The principle also applies where a certain condition or state of things that is essential to performance must continue to exist ; in this case, the occurrence of the coronation during the time in which Henry was to have use of the flat. The condition or state of things need not be expressly specified. It is sufficient if that condition or state of things clearly appears by extrinsic evidence to have been assumed by the parties to be the foundation or basis of the contract, and the event which causes the impossibility is of such that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made. Necessary inferences drawn from the contract and surrounding circumstances need to be examined to determine if the contract has in fact become impossible to perform. The purpose for the high rent of the room on those particular dates during the daytime was to view the coronation. The court held that without the coronation, there was no purpose to this contract. Disposition :Judgment for defendant Henry affirmed.
BGB (Code civil allemand)
§ 138 • 1. Tout acte juridique qui contrevient aux bonnes mœurs, est nul. • 2 En particulier, est nul tout acte juridique par lequel quelqu’un, en utilisant la contrainte, l’inexpérience, l’état de nécessité ou la faiblesse de volonté d’autrui, se fait, à lui-même ou à un tiers, promettre ou garantir un avantage pécunier contre une prestation, en déséquilibre flagrant avec la prestation. • § 242 : Le débiteur est tenu de fournir la prestation comme l’exige la bonne foi eu égard aux usages admis en affaires. UK Sale of Goods Act, 1979, 14, Implied terms about quality or fitness. (1) Except as provided by this section and section 15 below and subject to any other enactment, there is no implied about the quality or fitness for any particular purpose of goods supplied under a contract of sale. Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality. For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
HOUSE OF LORDS Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Hoffmann Lord Hutton Lord Rodger of Earlsferry OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE FAIRCHILD (SUING ON HER OWN BEHALF AND ON BEHALF OF THE ESTATE OF AND DEPENDANTS OF ARTHUR ERIC FAIRCHILD (DECEASED)) (APPELLANT) v GLENHAVEN FUNERAL SERVICES LIMITED AND OTHERS (RESPONDENTS) FOX (SUING AS WIDOW AND ADMINISTRATRIX OF THOMAS FOX (DECEASED)) (FC) (APPELLANT) v SPOUSAL (MIDLANDS) LIMITED (RESPONDENTS) MATTHEWS (FC) (APPELLANT) v. ASSOCIATED PORTLAND CEMENT MANUFACTURERS (1978) LIMITED AND OTHERS (RESPONDENTS) ORAL JUDGMENT : 16 MAY 2002 REASONS : 20 JUNE 2002  UKHL 22 LORD BINGHAM OF CORNHILL My Lords, 1. On 16 May 2002 it was announced that these three appeals would be allowed. I now give my reasons for reaching that decision. 2. The essential question underlying the appeals may be accurately expressed in this way. If (1) C was employed at different times and for differing periods by both A and B, and (2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A and B were in breach of that duty in relation to C during the periods of C’s employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and (4) C is found to be suffering from a mesothelioma, and (5) any cause of C’s mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but (6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together, is C entitled to recover damages against either A or B or against both A and B ? To this question (not formulated in these terms) the Court of Appeal (Brooke, Latham and Kay LJJ), in a reserved judgment of the court reported at  1 WLR 1052, gave a negative answer. It did so because, applying the conventional "but for" test of tortious liability, it could not be held that C had proved against A that his mesothelioma would probably not have occurred but for the breach of duty by A, nor against B that his mesothelioma would probably not have occurred but for the breach of duty by B, nor against A and B that his mesothelioma would probably not have occurred but for the breach of duty by both A and B together. So C failed against both A and B. The crucial issue on appeal is whether, in the special circumstances of such a case, principle, authority or policy requires or justifies a modified approach to proof of causation. 3. It is common ground that in each of the three cases under appeal conditions numbered (1) to (5) above effectively obtained. During his working life the late Mr Fairchild worked for an employer (whose successor was wrongly identified as the first-named defendant) who carried out sub-contract work for the Leeds City Council in the early 1960s and may have built packing cases for the transportation of industrial ovens lined with asbestos… In these circumstances Mr Fox was exposed to large amounts of asbestos dust, often for many hours each day. He was described by a witness as being covered in dust from head to foot. No measures were taken to protect him from such exposure. From 1955-1989 he worked as a docker/holdsman in the Liverpool Docks. Until the late 1960s or early 1970s asbestos fibre was imported into Liverpool Docks in sacks. Mr Fox told his wife that he was regularly involved in moving asbestos cargo and that asbestos was regularly released into his breathing area. The work of handling asbestos cargoes would have exposed Mr Fox to substantial amounts of dust and it is unlikely that any measures would have been taken to protect him from such exposure. But there is no evidence of when and for how long and how frequently Mr Fox handled cargoes containing asbestos, nor of what cargoes he handled, nor of the identity of his employers when he was engaged in handling asbestos. Spousal do not dispute that they were in breach of duty in exposing Mr Fox to substantial amounts of asbestos dust in the course of his employment by them. In 1995 he developed symptoms of mesothelioma and he died on 24 April 1996 at the age of 63. It is accepted that his condition was caused by exposure to asbestos dust. After his death his widow brought these proceedings against Spousal. Her claim was dismissed by Judge Mackay, sitting as a judge of the Queen’s Bench Division in Liverpool on 27 March 2001. Her appeal against that decision was dismissed by the Court of Appeal in the judgment already referred to. She challenges that decision on appeal to the House… It has been recognised for very many years, at any rate since the "Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry" by Merewether and Price in 1930 and the making of the Asbestos Industry Regulations 1931, that it is injurious to inhale significant quantities of asbestos dust. At first, attention was focused on the risk of contracting asbestosis and other pulmonary diseases. It is a characteristic of asbestosis that the disease, once initiated, will be influenced by the total amount of dust thereafter inhaled. Thus in the case of asbestosis the following situation may arise. C may contract asbestosis as a result of exposure to asbestos dust while employed by A, but without such exposure involving any breach of duty by A. C may then work for B, and again inhale quantities of asbestos dust which will have the effect of aggravating his asbestosis. If this later exposure does involve a breach of duty by B, C will have no claim against A but will have a claim against B. B will not escape liability by contending that his breach of duty is not shown to have had any causative effect. 8. In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements : the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for the breach he would not have suffered the damage. 9. The issue in these appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it. The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. Are these such cases ? A and B owed C a duty to protect C against a risk of a particular and very serious kind. They failed to perform that duty. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. If the mechanical application of generally accepted rules leads to such a result, there must be room to question the appropriateness of such an approach in such a case. 10. In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 508, Mason CJ, sitting in the High Court of Australia, did not "accept that the ’but for’ (causa sine qua non) test ever was or now should become the exclusive test of causation in negligence cases" and (at p 516) he added :
• "The ’but for’ test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff’s injury. The application of the test ’gives the result, contrary to common sense, that neither is a cause’ : Winfield and Jolowicz on Tort, 13th ed (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff’s injury : see, e.g., Chapman v Hearse, Baker v Willoughby  AC 467 ; McGhee v National Coal Board ; M’Kew (to which I shall shortly refer in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations." 11. In Snell v Farrell  2 SCR 311 at 320, Sopinka J, delivering the judgment of the Supreme Court of Canada, said :
• "The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexities of proof, the probable victim of tortious conduct will be deprived of relief. This concern is strongest in circumstances in which, on the basis of some percentage of statistical probability, the plaintiff is the likely victim of the combined tortious conduct of a number of defendants, but cannot prove causation against a specific defendant or defendants on the basis of particularized evidence in accordance with traditional principles. The challenge to the traditional approach has manifested itself in cases dealing with non-traumatic injuries such as man-made diseases resulting from the widespread diffusion of chemical products, including product liability cases in which a product which can cause injury is widely manufactured and marketed by a large number of corporations." McLachlin J, extra-judicially ("Negligence Law - Proving the Connection", in Torts Tomorrow, A Tribute to John Fleming, ed Mullany and Linden, LBC Information Services 1998, at p 16), has voiced a similar concern :
• "Tort law is about compensating those who are wrongfully injured. But even more fundamentally, it is about recognising and righting wrongful conduct by one person or a group of persons that harms others. If tort law becomes incapable of recognising important wrongs, and hence incapable of righting them, victims will be left with a sense of grievance and the public will be left with a feeling that justice is not what it should be. Some perceive that this may be occurring due to our rules of causation.
• In recent years, a conflation of factors have caused lawyers, scholars and courts to question anew whether the way tort law has traditionally defined the necessary relationship between tortious acts and injuries is the right way to define it, or at least the only way. This questioning has happened in the United States and in England and has surfaced in Australia. And it is happening in Canada. Why is this happening ? Why are courts now asking questions that for decades, indeed centuries, did not pose themselves, or if they did, were of no great urgency ? I would suggest that it is because too often the traditional ’but-for’, all-or-nothing, test denies recovery where our instinctive sense of justice - of what is the right result for the situation - tells us the victim should obtain some compensation." • 13. I do not therefore consider that the House is acting contrary to principle in reviewing the applicability of the conventional test of causation to cases such as the present. Indeed, it would seem to me contrary to principle to insist on application of a rule which appeared, if it did, to yield unfair results. And I think it salutary to bear in mind Lord Mansfield’s aphorism in Blatch v Archer (1774) 1 Cowp 63 at 65, quoted with approval by the Supreme Court of Canada in Snell v Farrell (above) :
Pure Economic Loss
The Court of Appeal, consisting of Lord Denning MR, Edmund-Davies LJ and Lawton LJ delivered a majority judgment (Edmund-Davies LJ dissenting), that the Spartan Steel could only recover the damages to their furnaces, the metal they had to discard and the profit lost on the discarded metal. They could not recover the profits lost due to the factory not being operational for 15 hours. Their main reasoning for this was that while the damage to the metal was "physical damage" and the lost profits on the metal was "directly consequential" upon it, the profits lost due to the blackout constituted "pure economic loss". Although the majority seemed to agree that Martin & Co Ltd owed the Spartan Steel a duty of care and the damage was not too remote since it was foreseeable, they declined to allow the recovery of pure economic loss for policy reasons outlined by Lord Denning in his leading judgment : • Statutory utility providers are never liable for damages caused by their negligence. • A blackout is a common hazard and a risk which everyone can be expected to tolerate from time to time. • If claims for pure economic loss in such cases were allowed, it might lead to countless claims, some of which may be spurious (the "floodgates" argument). • It would be unfair to place the entire weight of many comparatively small losses upon the shoulders of one person in such cases. • The law does not leave the claimant without remedy by allowing him to recover the economic losses that are directly consequential upon physical damage. “ The plaintiffs claim all those sums as damages against the contractors for negligence. No evidence was given at the trial : because the defendants admitted that they had been negligent. The contest was solely on the amount of damages. The defendants take their stand on the recent decision in this court of SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd  1 QB 337. They admit that they are liable for the £368 physical damages. They did not greatly dispute that they are also liable for the £400 loss of profit on the first melt, because that was truly consequential on the physical damages and thus covered by SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd. But they deny that they are liable for the £1,767 for the other four melts. They say that was economic loss for which they are not liable. Felix J rejected their contention and held them liable for all the loss. The defendants appeal to this court. Mr. Christopher Bathurst, for the plaintiffs, raised a point which was not discussed in SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd. He contended that there was a principle of English law relating to "parasitic damages." By this he meant that there are some heads of damage which, if they stood alone, would not be recoverable : but, nevertheless, if they can be annexed to some other legitimate claim for damages, may yet be recoverable. They are said to be "parasitic" because, like a parasite, in biology, they cannot exist on their own, but depend on others for their life and nourishment. Applying this principle he contended that, even if the economic loss (£1,767) on these four melts, standing alone, would not be recoverable, nevertheless by being attached to the other claim it can be added to it, and recovered as a "parasite" to it. Mr. Bathurst sought to establish this principle by reference to the books. He cited a case where the owner of an old house was entitled to ancient lights for some small old windows. He pulled down the old house and put up a new house with big new windows. The defendants afterwards put up a building which obstructed the big new windows. The plaintiff was held entitled to be compensated for the loss of light through the whole space of the big new windows and not merely through the little space of the small old windows : see In re London, Tilbury & Southend Railway Co and Trustees of Gower’s Walk Schools (1889) 24 QBD 326 . That decision was considered in Horton v Colwyn Bay and Colwyn Urban District Council  1 K.B. 327 , and Buckley L.J. drew from it a general proposition which he stated to be, at p. 341 : "... if an actionable wrong has been done to the claimant he is entitled to recover all the damage resulting from that wrong, and none the less because he would have had no right of action for some part of the damage if the wrong had not also created a damage which was actionable." In a similar case relating to ancient lights, a similar result was reached : see Griffith v Richard Clay & Sons Ltd  2 Ch 291. Mr Bathurst drew our attention to a number of other cases in which, he said, the same principle was applied, although it was not expressly stated in them. I do not like this doctrine of "parasitic damages." I do not like the very word "parasite." A "parasite" is one who is a useless hanger-on sucking the substance out of others. "Parasitic" is the adjective derived from it. It is a term of abuse. It is an opprobrious epithet. The phrase "parasitic damages" conveys to my mind the idea of damages which ought not in justice to be awarded, but which somehow or other have been allowed to get through by hanging on to others. If such be the concept underlying the doctrine, then the sooner it is got rid of the better. It has never been used in any case up till now. It has only appeared hitherto in the textbooks. I hope it will disappear from them after this case. I do not believe there is any such doctrine. The cases on ancient lights stand in a category by themselves and are to be explained in this way : if a house has ancient lights which are threatened by a new building, the owner, if he moves promptly, may obtain an injunction to restrain the erection of the new building. The court, however, may refuse an injunction and award him damages in lieu of an injunction : see Leeds Industrial Cooperative Society Ltd v Slack  AC 851 . These damages would be, in effect buying a right to put up the new building. If the owner, however, delays and allows the new building to go up without making any objection - so that he cannot seek an injunction - I do not think he should recover damages for his big new windows (for which he has no right). He ought only to recover damages for the small old windows (for which he has a right). None of the other cases gives any difficulty. In all of them there was some good reason for adding on the extra damages - not because they were improper, but because they flowed naturally and directly from the wrong done and could reasonably have been foreseen as a consequence of it. I reject, therefore, Mr. Bathurst’s argument based on "parasitic" damages. Mr. Bathurst submitted in the alternative that the views expressed by Winn L.J. and me in SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd  1 QB 337 were wrong. He said that if there was any limitation on the recovery of economic loss, it was to be found by restricting the sphere of duty, and not by limiting the type of damages recoverable. In this present case, he said, the defendants admittedly were under a duty to the plaintiffs and had broken it. The damages by way of economic loss were foreseeable, and, therefore, they should be recoverable. He cited several statements from the books in support of his submissions, including some by myself. At bottom I think the question of recovering economic loss is one of policy. Whenever the courts draw a line to mark out the bounds of duty, they do it as matter of policy so as to limit the responsibility of the defendant. Whenever the courts set bounds to the damages recoverable - saying that they are, or are not, too remote - they do it as matter of policy so as to limit the liability of the defendant. In many of the cases where economic loss has been held not to be recoverable, it has been put on the ground that the defendant was under no duty to the plaintiff. Thus where a person is injured in a road accident by the negligence of another, the negligent driver owes a duty to the injured man himself, but he owes no duty to the servant of the injured man - see Best v Samuel Fox & Co Ltd  AC 716, 731 : nor to the master of the injured man - Inland Revenue Commissioners v Hambrook  2 QB 641 , 660 : nor to anyone else who suffers loss because he had a contract with the injured man - see Simpson & Co v Thomson (1877) 3 App Cas 279, 289 : nor indeed to anyone who only suffers economic loss on account of the accident : see Kirkham v Boughey  2 Q.B. 338 , 341. Likewise, when property is damaged by the negligence of another, the negligent tortfeasor owes a duty to the owner or possessor of the chattel, but not to one who suffers loss only because he had a contract entitling him to use the chattel or giving him a right to receive it at some later date : see Elliott Steam Tug Co Ltd v Shipping Controller  1 KB 127, 139 and Margarine Union GmbH v Cambay Prince Steamship Co Ltd  1 QB 219, 251-252. In other cases, however, the defendant seems clearly to have been under a duty to the plaintiff, but the economic loss has not been recovered because it is too remote. Take the illustration given by Blackburn J in Cattle v Stockton Waterworks Co (1875) LR 10 QB 453, 457, when water escapes from a reservoir and floods a coal mine where many men are working. Those who had their tools or clothes destroyed could recover : but those who only lost their wages could not. Similarly, when the defendants’ ship negligently sank a ship which was being towed by a tug, the owner of the tug lost his remuneration, but he could not recover it from the negligent ship : though the same duty (of navigation with reasonable care) was owed to both tug and tow : see Société Anonyme de Remorquage à Hélice v Bennetts  1 KB 243, 248. In such cases if the plaintiff or his property had been physically injured, he would have recovered : but, as he only suffered economic loss, he is held not entitled to recover. This is, I should think, because the loss is regarded by the law as too remote : see King v Phillips  1 Q.B. 429 , 439-440. On the other hand, in the cases where economic loss by itself has been held to be recoverable, it is plain that there was a duty to the plaintiff and the loss was not too remote. Such as when one ship negligently runs down another ship, and damages it, with the result that the cargo has to be discharged and reloaded. The negligent ship was already under a duty to the cargo owners : and they can recover the cost of discharging and reloading it, as it is not too remote : see Morrison Steamship Co Ltd v Greystoke Castle (Cargo Owners)  AC 265. Likewise, when a banker negligently gives a reference to one who acts on it, the duty is plain and the damage is not too remote : see Hedley Byrne & Co Ltd v Heller & Partners Ltd  AC 465. The more I think about these cases, the more difficult I find it to put each into its proper pigeon-hole. Sometimes I say : "There was no duty." In others I say : "The damage was too remote." So much so that I think the time has come to discard those tests which have proved so elusive. It seems to me better to consider the particular relationship in hand, and see whether or not, as a matter of policy, economic loss should be recoverable, or not. Thus in Weller & Co v Foot and Mouth Disease Research Institute  1 QB 569 it was plain that the loss suffered by the auctioneers was not recoverable, no matter whether it is put on the ground that there was no duty or that the damage was too remote. Again in Electrochrome Ltd v Welsh Plastics Ltd  2 All ER 205, it is plain that the economic loss suffered by the plaintiffs’ factory (due to the damage to the fire hydrant) was not recoverable, whether because there was no duty or that it was too remote. So I turn to the relationship in the present case. It is of common occurrence. The parties concerned are : the electricity board who are under a statutory duty to maintain supplies of electricity in their district ; the inhabitants of the district, including this factory, who are entitled by statute to a continuous supply of electricity for their use ; and the contractors who dig up the road. Similar relationships occur with other statutory bodies, such as gas and water undertakings. The cable may be damaged by the negligence of the statutory undertaker, or by the negligence of the contractor, or by accident without any negligence by anyone : and the power may have to be cut off whilst the cable is repaired. Or the power may be cut off owing to a short-circuit in the power house : and so forth. If the cutting off of the supply causes economic loss to the consumers, should it as matter of policy be recoverable ? and against whom ? The first consideration is the position of the statutory undertakers. If the board do not keep up the voltage or pressure of electricity, gas or waterer, likewise, if they shut it off for repairs - and thereby cause economic loss to their consumers, they are not liable in damages, not even if the cause of it is due to their own negligence. The only remedy (which is hardly ever pursued) is to prosecute the board before the magistrates. Such is the result of many cases, starting with a water board - Atkinson v Newcastle & Gateshead Waterworks Co (1877) 2 Ex.D. 441 ; going on to a gas board - Clegg, Parkinson & Co v Earby Gas Co  1 Q.B. 592 ; and then to an electricity company - Stevens v Aldershot Gas, Water & District Lighting Co Ltd best reported in (1932) 31 LGR 48 ; also in 102 LJKB 12. In those cases the courts, looking at the legislative enactments, held that Parliament did not intend to expose the board to liability for damages to the inhabitants en masse : see what Lord Cairns L.C. said in Atkinson v Newcastle & Gateshead Waterworks Co, 2 Ex.D. 441 , 445 and Wills J. in Clegg, Parkinson & Co v Earby Gas Co  1 QB 592, 595. In those cases there was indirect damage to the plaintiffs, but it was not recoverable. There is another group of cases which go to show that, if the board, by their negligence in the conduct of their supply, cause direct physical damage or injury to person or property, they are liable : see Milnes v Huddersfield Corporation (1886) 11 App.Cas. 511 , 530 by Lord Blackburn ; Midwood & Co Ltd v Manchester Corporation  2 KB 597 ; Heard v Brymbo Steel Co Ltd  K.B. 692 and Hartley v Mayoh & Co  1 QB 383. But one thing is clear : the statutory undertakers have never been held liable for economic loss only. If such be the policy of the legislature in regard to electricity boards, it would seem right for the common law to adopt a similar policy in regard to contractors. If the electricity boards are not liable for economic loss due to negligence which results in the cutting off the supply, nor should a contractor be liable. The second consideration is the nature of the hazard, namely, the cutting of the supply of electricity. This is a hazard which we all run. It may be due to a short circuit, to a flash of lightning, to a tree falling on the wires, to an accidental cutting of the cable, or even to the negligence of someone or other. and when it does happen, it affects a multitude of persons : not as a rule by way of physical damage to them or their property, but by putting them to inconvenience, and sometimes to economic loss. The supply is usually restored in a few hours, so the economic loss is not very large. Such a hazard is regarded by most people as a thing they must put up with - without seeking compensation from anyone. Some there are who instal a stand-by system. Others seek refuge by taking out an insurance policy against breakdown in the supply. But most people are content to take the risk on themselves. When the supply is cut off, they do not go running round to their solicitor. They do not try to find out whether it was anyone’s fault. They just put up with it. They try to make up the economic loss by doing more work next day. This is a healthy attitude which the law should encourage. The third consideration is this : if claims for economic loss were permitted for this particular hazard, there would be no end of claims. Some might be genuine, but many might be inflated, or even false. A machine might not have been in use anyway, but it would be easy to put it down to the cut in supply. It would be well-nigh impossible to check the claims. If there was economic loss on one day, did the claimant do his best to mitigate it by working harder next day ? and so forth. Rather than expose claimants to such temptation and defendants to such hard labour - on comparatively small claims - it is better to disallow economic loss altogether, at any rate when it stands alone, independent of any physical damage. The fourth consideration is that, in such a hazard as this, the risk of economic loss should be suffered by the whole community who suffer the losses - usually many but comparatively small losses - rather than on the one pair of shoulders, that is, on the contractor on whom the total of them, all added together, might be very heavy. The fifth consideration is that the law provides for deserving cases. If the defendant is guilty of negligence which cuts off the electricity supply and causes actual physical damage to person or property, that physical damage can be recovered : see Baker v. Crow Carrying Co. Ltd. (unreported) February 1, 1960 ; Bar Library Transcript No. 45, referred to by Buckley LJ in SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd.  1 QB 337, 356 ; and also any economic loss truly consequential on the material damage : see British Celanese Ltd v AH Hunt (Capacitors) Ltd  1 WLR 959 and SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd  1 QB 337. Such cases will be comparatively few. They will be readily capable of proof and will be easily checked. They should be and are admitted. These considerations lead me to the conclusion that the plaintiffs should recover for the physical damage to the one melt (£368), and the loss of profit on that melt consequent thereon (£400) : but not for the loss of profit on the four melts (£1,767), because that was economic loss independent of the physical damage. I would, therefore, allow the appeal and reduce the damages to £768.
Extrait du rapport Sargos sur l’affaire Perruche
49 .On doit enfin insister sur le fait que, contrairement à une allégation inexacte avancée par certains, ce n’est pas la naissance et la vie même de l’enfant qui constituent le préjudice dont il est demandé réparation. Le préjudice réparable est au contraire exclusivement celui qui résulte du handicap qui va faire peser sur l’enfant pendant toute son existence des souffrances, charges, contraintes, privations et coûts de toute nature. N’est-il pas dés lors pas plus cohérent en droit et en équité de lui allouer personnellement la réparation de ce préjudice plutôt que d’user du subterfuge d’une augmentation artificielle de l"indemnisation des parents ?
A cet égard, il est d’ailleurs possible de relever dans certains pays une évolution sur le terrain de l’action dite en "Wrongful life" (c’est à dire l’action engagée par ou pour l’enfant en réparation de son propre préjudice, l’action en "Wrongful birth" ne concernant que le préjudice de la mère et/ou du père ).
Certes, l’arrêt McKay v . Essex area health authority, rendu en 1982 par la juridiction suprême du Royaume Uni, prohibe une telle action, mais la situation de ce pays n’est pas significative car c’est une loi de 1976 - encore que sa portée soit contestée par certains - qui fait obstacle à l’action de l’enfant. De même ne sont pas significatives les décisions de cours et tribunaux d’Etats des U.S.A. qui ont une législation interdisant ce type d’action.
Mais, à notre connaissance, il n’y a pas de décision de juridictions suprêmes étrangères équivalentes à la Cour de cassation qui rejette ou accepte par principe une telle action en " wrongful life" . Par contre des décisions de Cours de quelques Etats des U.S.A., certes minoritaires, admettent de réparer le préjudice de l’enfant consistant dans le coût, notamment médical, induit par son handicap. On évoquera ainsi l’arrêt de la Cour suprême du New Jersey (Procanik V .Cillo ), commenté par M. Markesinis dans son étude comparative susvisée (p 269) qui admet l’action de l’enfant handicapé pour le recouvrement des dépenses extraordinaires afférentes à son handicap. Il cite d’ailleurs un motif éclairant de cet arrêt : "We need not become preoccupied ...with... métaphysical considérations. Our decision to allow the recovery of extraordinaly médical expenses is not premised on the concept that non-life is preferable to an impaired life, but it is predicated on the needs of the living. We seek to respond to the call of the living for help in bearing burden of their affliction".
La Cour constitutionnelle fédérale d’Allemagne dans un arrêt du 12 novembre 1997, si elle pose comme principe que l’existence humaine ne peut être considérée comme un préjudice (point sur lequel il y d’ailleurs un consensus général que nous partageons), admet cependant que les coûts particuliers nécessités par l’alimentation de l’enfant handicapé donnaient droit à indemnisation.
Extrait des conclusions de l’avocat général Sainte-Rose dans l’affaire Perruche
Qu’on le veuille ou non, le préjudice de non-avortement n’est pas neutre. Il relève d’une logique d’élimination des "anormaux" qui heurte la conscience juridique.
On comprend pourquoi certaines juridictions ou législations étrangères s’opposent au principe même de l’action en wrongful life. Des éléments d’information que nous avons pu recueillir, il ressort que, dans leur grande majorité, les décisions de la justice américaine ont rejeté les revendications formées au nom de l’enfant, les juges refusant que l’on puisse se plaindre d’être né ou toute comparaison entre la vie même diminuée et l’inexistence, les incohérences de l’action étant également fustigées(58). Plusieurs Etats des Etats-Unis prohibent l’action de l’enfant.
La jurisprudence québécoise témoigne, elle aussi, de cette réserve : "Il est impossible, a estimé la cour d’appel, de comparer la situation de l’enfant après la naissance avec la situation dans laquelle il se serait trouvé s’il n’était pas né ; le seul énoncé du problème montre l’illogisme qui l’habite"(59).
Dans un arrêt MC Kay de 1977, la cour d’appel d’Angleterre a jugé que le procès pour "vie non désirée" est contraire à l’ordre public et constitue une violation de la règle de la primauté de la vie humaine. Ce type de procès est d’ailleurs interdit par une loi, le Congenital Disabilities (Civil Liability) Act. de 1976.
Statuant sur la responsabilité contractuelle du corps médical dans le domaine du diagnostic prénatal et anteconceptionnel, la Cour constitutionnelle de Karlsruhe a jugé, le 12 novembre 1997, qu’il y a lieu de distinguer entre l’existence humaine qui ne pouvant être considérée comme un préjudice est insusceptible d’un quelconque dédommagement et l’obligation d’entretien qui incombe aux parents de l’enfant handicapé.