Question juridique clé
Whether the surgeon was liable only for 30% of the damage because of the claimant's constitutional predisposition.
Solution extraite
The cantonal court could equitably attribute only 30% of the damage to the surgeon, since the pre-existing condition was a concomitant cause of the loss.
Motifs extraits
On the expert evidence, the claimant's pre-existing defects and degenerative conditions meant the same damage would likely have occurred even without the operation; therefore the predisposition had to be considered at the stage of damage assessment rather than as a separate reduction under Art. 44 CO.