By two judgements rendered on 11 June 2009, the first civil chamber of the Supreme Judicial Court (Cour de Cassation) judged that the “legal security – invoked on the basis to the right of a fair trial – to contest the immediate application of a new legal solution following a case law change, does not imply the right to freeze case law provided that the petitioner is not prevented to access to a judge (not clear, can you restate?)
On 29 June 1999, the Supreme Court of Appeals changed its case law and decided that the doctor’s obligation would be henceforth a result obligation of security towards their patients
In these two trials, two patients had been contaminated by Hepatitis C during their anti-varicose treatment between 1981 and 1986. Tribunals and courts of appeal competent on these both litigations had acknowledged the doctor’s responsibility (cf. Cour of Appeal of Bordeaux, 5th Chamber, 15 March 2007 and 16 April 2008).
In his appeal to the Supreme Court, the doctor claimed that everyone is entitled to a fair and public hearing and therefore, by this rule application, any application of a new legal rule resulting from a modification of case law would disentitle such party from its right to a fair trial. In these instances, the doctor’s liability was, in the domain of nosocomial infections, limited to due care obligation until 28 June 1999. On 29 June 1999, the Supreme Court of Appeals changed its case law and decided that the doctor’s obligation would be henceforth a result obligation of security towards their patients.
The doctor argued that application of case law of 29 June 1999 for acts committed before this date disentitled doctors from a fair trial to the extent that it is reproached them for having not applied an obligation which, at the date of the facts, was inexistent.
The Supreme Judicial Court rejected his appeal. The legal security invoked by the doctor does not include the right to an unchangeable case law.