Health and the environment: group action for personal injury and environmental damage

Medicines with devastating side-effects affecting thousands of patients, defective medical prostheses implanted in large numbers of people, industrial pollution contaminating the soil and affecting the health or property of local residents over a wide area... Massive damage to public health or the environment poses considerable legal challenges. For victims, establishing the causal link, accurately assessing the damage and obtaining individual compensation can be like an obstacle course, often unequal to those responsible - pharmaceutical laboratories, industrialists, etc.

Aware of these major challenges, the French legislature has provided for specific group actions in the fields of public health and the environment. Although they share the common objective of facilitating compensation for damage suffered by a large number of people, these two actions have distinct characteristics and procedures, adapted (or attempting to be adapted) to the particular nature of the damage in question. This article explains the conditions and operation of these two essential collective protection tools.

Group action in the field of public health

Introduced by the law on the modernisation of our healthcare system of 26 January 2016, the "health" group action is specifically aimed at compensating for personal injury caused by certain health products. It was largely motivated by past health scandals, such as the Mediator scandal, which had highlighted the difficulties of compensating victims.

Who is affected?

• The victims: The action is open to "health system users (article L. 1143-2 of the French Public Health Code - CSP). This concept is not precisely defined by law. It obviously encompasses patients, but also more broadly any individual using the healthcare system (for example, a pregnant woman using a product during her pregnancy). Case law will have to clarify the exact contours, particularly for users of cosmetic products, contact lenses or people having cosmetic surgery. Legal entities are excluded. As with any group action, the victims must be in a "similar or identical situation.
• The person in charge: The action must aim to a single producer, supplier or service provider using one of the health products concerned (article L. 1143-2 CSP). The term "producer" covers the manufacturer, "supplier" may include distributors, and "service provider" refers to the professionals or establishments using the product (doctors, hospitals, pharmacists, etc.). It seems impossible to act against several parties jointly in the same health action.
• Applicants: Only approved healthcare user associations (at national or regional level, in accordance with article L. 1114-1 of the CSP) may initiate this action. The list of these associations is public. The text explicitly excludes associations whose ancillary activity is the marketing of the health products in question, in order to avoid conflicts of interest.

What event triggers the action?

The action is based on a breach the producer, supplier or service provider its legal or contractual obligations.

• The breach : The term "breach" is used, as in other group actions. Does it have to be a proven fault? The question arises because some health liability regimes, such as that for defective products (articles 1245 et seq. of the Civil Code), are no-fault liability regimes. If the group action were to require proof of fault, this would create a complex divergence with ordinary product liability law. The interpretation remains open, but it would be logical for the group action to also cover cases of no-fault liability.
• Obligations breached : These may be obligations arising from the law (in the broadest sense: laws, regulations, European law, etc.) or from the contract between the professional and the user (for example, a care contract). Legal obligations may include the duty to provide information, the safety obligation, marketing authorisation rules, etc.
• The product in question : This is a very specific condition: the breach must be related to one of the a list of health products in article L. 5311-1, II of the French Public Health Code. The list is long and varied: medicinal products (including magistral preparations, narcotics, etc.), contraceptive products, medical devices (prostheses, implants, etc.), in vitro diagnostic devices, blood products, organs, tissues, cells, cosmetic products, tattoo products, certain medical software, etc. If the damage is caused by a product or act of care that is not listed, this specific group action cannot be used.

What damage can be repaired?

That's what makes this action so special: it "can only relate to compensation for damage resulting from personal injury suffered by users of the healthcare system". (article L. 1143-2, al. 3 CSP).

• Exclusively personal injury: Unlike the consumer claim (which is limited to material damage), the health claim targets damage to a person's physical integrity. Purely material damage (for example, the cost of purchasing ineffective but not dangerous medication) or purely moral damage not linked to physical injury are excluded.
• All the consequences of bodily injury: If the initial damage is bodily, then all damages resulting from it, whether pecuniary or non-pecuniary, may be compensated. This includes :
  • Financial losses: out-of-pocket healthcare expenses, loss of professional income, costs of assistance by a third party, etc.
  • Non-patrimonial damages: pain and suffering (pretium doloris), functional impairment (permanent or temporary), cosmetic damage, loss of amenity, sexual harm, etc. Anxiety-related damage resulting from exposure to a risk, without proven bodily injury, may be more difficult to include in this category.
• Individual damages : The aim of the action is to compensate each victim for the harm they have suffered, even if the assessment may be complicated by the diversity of individual situations in the case of personal injury.

What are the specifics of the procedure?

The health group action, although integrated into the general framework of the J21 Act, has some notable procedural differences:

• No prior formal notice : The approved association may refer the matter directly to the Court of Justice without prior formal notice to the person responsible (article L. 1143-2, para. 4 CSP).
• Immediate application: The Act applies to actions brought after its entry into force (28 January 2016), even if the operative event (the product-related breach) occurred before that date, subject to the statute of limitations. This is an important difference from other J21 actions.
• Individual assessment of damages : The French Public Health Code (article L. 1143-11) explicitly requires that compensation for harm be provided within the framework of the individual procedure of reparation provided for by the J21 law (articles 69 to 71). The "collective" liquidation procedure (global negotiation by the association) does not therefore apply to healthcare.
• Specific mediation encouraged: The Public Health Code devotes several articles (L. 1143-6 to L. 1143-10) to a specific mediation procedure, which may be proposed by the judge with the agreement of the parties. A mediator (chosen from a specific list), possibly assisted by a commission, may propose an amicable compensation agreement. This amicable approach is clearly encouraged for this type of complex and sensitive dispute.

Environmental group action

Also resulting from the J21 Act of 2016, the environmental group action aims to compensate certain losses resulting from environmental damage. It is governed mainly by article L. 142-3-1 of the French Environment Code and is based on the common procedural framework set out in the J21 Act.

Who is affected?

• The victims: Unlike other actions, this one is open to "several people without distinction, including natural and legal persons (companies, other associations, local authorities, etc.) that suffer a loss that can be made good in this way. They must be placed in a "similar situation.
• The person in charge: The action must be brought against "the same personIt is the person, whether natural or legal, who is responsible for the environmental damage. Here again, the text seems to exclude actions against several parties jointly responsible.
• Applicants: Two types of approved associations can take action (article L. 142-3-1, IV):
  • The approved environmental protection associations at national or local level (in accordance with article L. 141-1 of the Environment Code).
  • The approved associations whose articles of association include the defence of victims of personal injury or the defence of the economic interests of their members. This category includes consumer associations and associations of accident victims, whose approval is recognised or defined by articles R. 142-10 and R. 142-11 of the Environment Code. The idea is to enable associations that do not specialise in the environment to take action if their members suffer the consequences (physical or material) of environmental damage.

What event triggers the action?

The action is based on a breach of a person its legal or contractual obligationshaving caused damage in the areas listed in article L. 142-2 of the French Environment Code.

• The breach : As in the case of the health action, it is questionable whether fault is required. Article L. 142-2 refers to a "infringement of legislative provisions relating to...". which might suggest that an illegality must be established. If this is the case, it would exclude no-fault liability regimes (e.g. abnormal neighbourhood disturbances? liability for things done?). The scope of the "breach" requirement remains uncertain here.
• Obligations breached : They may be legal (environmental laws and regulations, but also potentially the Civil Code, etc.) or contractual (although this is rarer in environmental matters).
• Damage in the areas listed: The event giving rise to the claim must have caused damage in one of the areas listed in article L. 142-2: protection of nature and the environment, improvement of the quality of life, protection of water, air, soil, sites and landscapes, town planning, maritime fishing, pollution and nuisance control, nuclear safety and radiation protection, etc. This list is exhaustive.
• "Common cause" and "failure of the same kind" : These terms, taken from article 62 of the J21 law, imply that the losses of the various victims must result from a single operative event (e.g. the same pollution, the same industrial incident).

What damage can be repaired?

This is a particularly controversial and ambiguous point for this action. Article L. 142-3-1, III of the Environment Code stipulates that the action "may seek [...] compensation for damages bodily injury and property damage resulting from damage to the environment"..

• Initial damage to the environment : The cause must be damage to one of the environmental areas listed.
• Consequential bodily injury AND property damage: Only the consequences of this environmental damage on people (personal injury) or their property (property damage) are explicitly covered for compensation. individual.
• What about other losses?
  • Le moral damage (suffering, anxiety, etc.) linked to personal injury or material damage caused by pollution? The letter of the text does not mention this, unlike the personal data action. The interpretation is uncertain.
  • Le pure ecological damage (damage to the environment in itself, regardless of the consequences for people or property) be compensated via this group action? Article 1246 of the Civil Code recognises this harm and allows certain entities (including approved associations) to claim compensation. However, by its very nature, the group action is aimed at damage that individuals. The ambiguous reference from L. 142-3-1 to L. 142-2 (which mentions "collective interests") creates confusion. It is more likely that compensation for pure ecological damage should be provided through a separate action (possibly cumulative?). The question remains open.

Action for injunction possible

As in the case of discrimination, environmental group action can also target the termination of the breach (article L. 142-3-1, III C. envir. and article 62 loi J21), to stop the pollution or nuisance.

What are the specifics of the procedure?

Environmental action follows the common framework of the J21 law, but with some points of attention:

• Prior formal notice MANDATORY : A formal notice must be sent to the person responsible, and the action can only be brought after 4 months (article 64 of the J21 law).
• Deferred application : Action is only possible in respect of the events giving rise to it (breaches) after 20 November 2016.
• Repair procedure : The "J21 ordinary law" regime applies. The judge may therefore opt for the collective liquidation proceedings (global negotiation) or the individual procedure.
• TJ competence.

When faced with health or environmental damage affecting a large number of people, group action can offer a solution. These procedures are complex and specific, with widely varying conditions of access and redress. Our firm can help you analyse your situation and defend your rights.

Sources

• Public Health Code (Articles L1143-1 to L1143-13, R1143-1 et seq., L5311-1)
• Environment Code (Articles L141-1, L142-2, L142-3-1, R142-10 et seq.)
• Law 2016-41 of 26 January 2016 on the modernisation of our healthcare system
• Law no. 2016-1547 of 18 November 2016 on the modernisation of the justice system for the 21st century (Articles 60, 62 et seq.)
• Code of Civil Procedure (Articles 849 et seq.)
• Civil Code (Articles 1245 et seq., 1246 et seq.)