CHAPTER SIX 6.2. LIABILITY FOR ACCIDENTS 6.2.1. ROAD TRAFFIC ACCIDENTS 6.2.1.A. FRENCH LAW 1 Cass. civ. 2e, 5 January 1994 Caisse mutuelle d assurance et de prévoyance v. Caneiro 6.F.17. TRAFFIC ACCIDENT Shredder Even if the plaintiff s injury is due to the operation of a piece of machinery that is attached to a vehicle, it can constitute a traffic accident if the vehicle was in motion. Facts: As the plaintiff was walking along the street, he was hit by a piece of wood that flew out of a shredder (attached to a tractor) which employees of the defendant city were using to clear branches from a nearby field. The plaintiff sued the defendant city on the basis of the Loi Badinter. At issue was whether the accident constituted a traffic accident for the purposes of Article 1 of the Act of 5 July 1985. Held: The court of first instance and the court of appeal dismissed the claim. The Cour de cassation quashed the judgment of the court of appeal and remitted the case for further consideration. Judgment: The court of appeal held the defendant liable on the basis of Art. 1384(1) C.civ., on the basis that the accident to which plaintiff had fallen victim was not a traffic accident within the meaning of the Loi Badinter. The court of appeal stated that that Act would only have been applicable if the shredder towed behind a tractor were circulating in the traffic (en circulation) at the time of the accident. That was not the case, so the court of appeal, since this machine was used for the clearance of a plot of land; it was not on the public highway and was not used for the transportation of things or people. In so finding, without establishing whether at the moment of the accident the shredder was or was not in motion, the court of appeal did not give legal basis to its decision. Notes 1 Bull.civ. 1994.II.1. 592/1
6.F.17. (1) The notion of traffic accident delineates the material scope of application of the Loi Badinter: to the extent that the latter is perceived as more generous to the victim than other regimes which would otherwise apply (Article 1382-3 or 1384(1) C.civ.), traffic accident is likely to be interpreted broadly, as the annotated case shows. (2) A first issue arises in connection with the term accident. It seems to be interpreted under French law so as to exclude events which have been brought about through the deliberate conduct of the wrongdoer (eg driving towards a hitchhiker so as 2 3 to scare him ), even though writers would rather exclude only intentional conduct. (3) A second issue, dealt with in the annotated case, relates to the term traffic. In the annotated case, the injury was caused by a piece of wood flying out of a shredder, an accident which at first sight would not seem to qualify as a traffic accident. Nonetheless, the Cour de cassation quashed the decision of the court of appeal dismissing the claim under the Loi Badinter. The decision of the Cour de cassation must be seen in the light of its case law under the Loi Badinter. 4 It is difficult to define traffic (circulation) with the help of hard and fast criteria. It cannot be said that movement is decisive, since parked vehicles can also be involved in 5 traffic. Similarly, there is no basis for restricting traffic to public grounds, as opposed 6 to private grounds; the Loi Badinter also applies to motor vehicle accidents occurring on private car parks, fields or even ski slopes. 7 Certain vehicles, however, double as work instruments, as in the annotated case, where a shredder was attached to a tractor. The shredder/tractor combination was mobile, so that it could participate in traffic, but at the same time it could perform other functions unrelated to traffic (shredding branches). The approach of the Cour de cassation was then as follows: if the vehicle was in motion at the time of the accident, 8 then the accident is a traffic accident; if the vehicle was stationary, the relevant question 2 As in Cass. crim., 6 February 1992, Resp. civ. et ass. 1992.207. 3 See Viney and Jourdain, Conditions at 1105-8, para. 979-80; Le Tourneau and Cadiet at 907, para. 3792-3. 4 See the discussion in Viney and Jourdain, Conditions at 1108-13, para. 981-4; Le Tourneau and Cadiet at 907-8, para. 3794-5. 5 Cass. civ. 2e, 22 November 1995, Bull.civ. 1995.II.286. 6 The Act 93-121 of 27 January 1993, JO, 30 January 1993, D 1993.Lég.199 provides that employees can also rely on the Loi Badinter against their employers, even if those employees obtain compensation for work accidents under the Code de la sécurité sociale. It is interesting to note, however, that the provision applies only to accidents that occured on a road open to public traffic. This limitation is somewhat unfortunate: Viney and Jourdain, Conditions at 1113-6, para. 985-6; Le Tourneau and Cadiet at 909-10, para. 3798-800. 7 See for instance Cass. civ. 2e, 5 March 1986, Bull.civ. 1986.II.28 (field) and Grenoble, 9 February 1987, D 1987.Jur.245 (ski slope). 8 See for instance Cass. civ. 2e, 10 May 1991, Bull.civ. 1991.II.137 (combine harvester in a field), Cass. civ. 2e, 25 May 1994, Bull.civ. 1994.II.132 (forklift moving down a slope). 592/2
is whether the vehicle was being used for the purpose of transport or for some other 9 purpose at that time. Accordingly, in the annotated case, since the court of appeal had not made a determination as to whether the tractor was in motion at the time of the accident, no conclusion could be reached. It follows that the accident that occurred in the annotated case would qualify as a traffic accident if the tractor (and the shredder) was in motion. Cass. civ. 2e, 20 January 1993 Morizet v. Cathelin 10 6.F.18. INVOLVEMENT IN THE ACCIDENT Surprised pedestrian falls over If the victim did not come in contact with the motor vehicle in the course of the accident, the victim must show that the presence of the motor vehicle was a necessary condition for the occurrence of the accident in order for that vehicle to be involved (impliqué) in the accident. Facts: The plaintiff was crossing the street absent-mindedly, when to her surprise she saw the defendant s car, which appeared to be moving backwards towards her. In fact, the car was coming to a stop. The plaintiff instantly moved back, and she fell in the process, injuring herself. She did not come in contact with the car. She sued the defendant on the basis of the Loi Badinter. At issue was whether the defendant s car was involved (impliqué) in the accident within the meaning of Article 1 of the Loi Badinter. Held: The court of first instance and the court of appeal dismissed the claim. The Cour de cassation quashed the decision of the court of appeal and remitted the case back for further consideration. Judgment: In order to reject the claim, the judgment declares that since it could not be proved that the vehicle driven by the defendant played an active role [in the accident], it could not be held to have been involved in the accident. Yet the court of appeal also noted that a witness had seen the plaintiff cross the road 9 For cases where the vehicle was used for a purpose other than transport at the time of the accident: Cass. civ. 2e, 13 January 1988, Bull.civ. 1988.II.12 (injury caused while forklift was lifting material); Cass. civ. 2e, 9 June 1993, Bull.civ. 1993.II.198 (injury caused by the tipper of a lorry); Cass. civ. 2e, 5 November 1998, D 1999.Jur.256 (injury caused by the opening of the back door of a parked truck) and for cases where the vehicle was used for transport purposes: Cass. civ. 2e, 26 March 1997, Bull.civ. 1997.II.90 (injury caused while unloading a trailer, on the ground that unloading cannot be separated from the transport function) and Cass. civ. 2e, 19 November 1998, JCP 1999.II.10113 (injury caused when an excavator slipped while it was being used). 10 Bull.civ. 1993.II.19. 592/3
6.F.18. without looking in the direction of the car which was reversing. Since the plaintiff believed the car to be stationary, she moved back and then fell onto the highway. It results from these findings that the automobile was involved in the accident. In rejecting the claim, the court of appeal therefore infringed [Art. 1 of the Loi Badinter]. Notes (1) One of the innovations of the Loi Badinter remains this requirement that the motor vehicle be involved (impliqué) in the accident. The original idea was for involvement (implication) to replace causation, so as to make it easier for the victim to establish a link between his or her injury and the motor vehicle of the driver or gardien sought to be made liable; as it turned out, French courts experienced considerable difficulties in abandoning reasoning based on the concept of causation. 11 (2) The case law on involvement, as it was evolving, bore some resemblance to the case law on the fait de la chose under Article 1384(1) C.civ., but by now it has unfolded into a distinct body of rules. The key variable is whether the motor vehicle came in contact with the victim. In cases of contact, it necessarily follows from the very fact of contact that the motor vehicle was involved in the accident, irrespective of whether the vehicle was in movement or not, as the Cour de cassation has come to recognize. 12 In cases where no contact has taken place, involvement must be proved by the victim. In the annotated case, for instance, the victim showed that, even though there was no contact, she fell because she had moved back in the belief that the motor vehicle of the defendant was backing towards her. Accordingly, the presence of the motor vehicle was at least a conditio sine qua non of her fall, since but for the vehicle it would not have occurred. In the absence of contact, therefore, the involvement of the motor vehicle means that the presence or behaviour of the vehicle must have been a necessary condition ( but for test) of the accident. 13 (3) An interesting problem occurs if only one vehicle is involved in the accident (for instance, if there 14 was a collision with a pillar). If that vehicle was driven by the keeper (gardien), then the Loi Badinter cannot apply, since the keeper/driver would be claiming against himself or herself. This is one of the crucial differences between a system of third-party or liability insurance, as in the Loi Badinter, and one of first-party or damage insurance. If the vehicle was not driven by the keeper (gardien), the keeper can claim under the Loi Badinter against the driver for personal injury (if the keeper himself or herself was 11 See Le Tourneau and Cadiet at 912-3, para. 3807-8; Viney and Jourdain, Conditions at 1120-23, para. 991-3. On the remaining role of causation, see the next document, 6.F.19. 12 Viney and Jourdain, Conditions at 1123-5, para. 995-6; Le Tourneau and Cadiet at 913-4, para. 3811-3. 13 See Viney and Jourdain, Conditions at 1126-8, para. 997-8; Le Tourneau and Cadiet at 914-5, para. 3814-5. This corresponds to the equivalency theory of causation, which still occupies a pre-eminent place in French law: see infra, Chapter IV, 4.1.3., Introductory Note under e) to i). 14 See Viney and Jourdain, Conditions at 1140-2, para. 1009; Le Tourneau and Cadiet at 921, para. 3839. 592/4
on board as a passenger) and for property damage. Conversely, in that situation, the driver can also claim against the keeper. 15 Cass. civ. 2e, 19 February 1997 Die Bundesknappschaft v. Sté Rhône-Loire consultant 6.F.19. CAUSAL LINK BETWEEN ACCIDENT AND INJURY Cardiac arrest following accident The injury is presumed to result from the accident (at least where the injury occurred shortly after the accident), unless the defendant proves otherwise. Facts: The plaintiff s husband was involved in a car accident with the defendant, in which he suffered a slight leg injury. Shortly after the accident, he died as a result of a cardiac arrest. The plaintiff sued the defendant pursuant to the Loi Badinter. At issue was whether the cardiac arrest had been caused by the accident. Held: The court of appeal dismissed the claim. The Cour de cassation quashed the decision of the court of appeal and remitted the case for further consideration. Judgment: The driver of a motor vehicle involved in a traffic accident can only escape from his or her obligation to compensate the victim if he or she establishes that this accident was not connected with the damage. In rejecting the claim of the plaintiff, the court of appeal stated that it rests on the plaintiff to prove that the cardiac arrest which her husband suffered after the collision constitutes an element of the damage linked to the accident. Moreover, the court stated that an occurrence of emotional stress after an accident does not necessarily cause a cardiac arrest. It resulted from the findings of the court of appeal that the stress provoked by the collision could conceivably have played a role in the death. In ruling as it did, the court of appeal therefore infringed [Art 1 of the Loi Badinter and Art. 1315 C.civ.]. Notes 16 (1) As mentioned before, one of the key changes brought about by the Loi Badinter was the replacement of the classical causation test with the requirement that the motor vehicle be involved (impliqué) in the accident. The accident was then supposed to work as a causal black box : as long as the victim proved that the vehicle fed into the accident (involvement), the driver or gardien of the vehicle would be liable for the injury feeding out of the accident. 15 Bull.civ. 1997.II.41. 16 Supra, 2.F.18., Note (1). 592/5
6.F.19. (2) However, sometimes, as in the annotated case, it may not be so clear that the injury of the victim really resulted from the accident. As the second civil chamber of the Cour de cassation stated, the injury of the victim is presumed to flow from the accident; it is up to the defendant to show that the injury had another cause. It must be noted, however, that that presumption is not very strong: the criminal chamber does not 17 recognize it, and in some other cases where the injury had occurred some time after the accident, the second civil chamber hald that it was for the victim to prove causation 18 between the accident and the injury. Accordingly, the traditional causation assessment has surfaced again in the course of applying the Loi Badinter, as concerns the link between the accident and the injury, a development with which authors generally agree. 19 (3) A more debatable reintroduction of causation has also taken place, however, in cases of complex accidents involving many cars in a series of collisions. In such cases it may be difficult to resist the temptation to break down the complex accident into a number of smaller accidents. In a few cases, for example, the second civil chamber of the Cour de cassation has exonerated a defendant who has proved that, of all the vehicles involved in a series of impacts, his vehicle had not caused the injury (the victim had 20 already been injured). In one instance, the criminal chamber has even gone so far as to state that, in a complex accident, it must be established that the vehicle was involved 21 in the damage. Writers have generally criticized these decisions, which run against the black box approach of the Loi Badinter described above, by requiring the establishment of a direct causal link between the motor vehicle and the injury to the 22 victim. Some commentators on the annotated case expressed the hope that it would 23 mark a departure from that line of case law concerning complex accidents. Recent cases indicate that the Cour de cassation still has not reached a firm position regarding complex accidents. 24 17 Cass. crim., 13 June 1991, Bull.crim. 1991.250. 18 See among others Cass. civ. 2e, 16 January 1991, Bull.civ. 1991.II.16; Cass. civ. 2e, 16 March 1994, Bull.civ. 1994.II.90; Cass. civ. 2e, 24 January 1996, Bull.civ. 1996.II.15. 19 See Viney and Jourdain, Conditions at 1128-9, 1132-3, para. 999, 1001; Le Tourneau and Cadiet at 915-6, para. 3818. 20 Cass. civ. 2e, 28 June 1989, Gaz.Pal. 1989.Jur.898; Cass.civ. 2e, 25 March 1991, Bull.civ. 1991.II.96; Cass.civ. 2e, 3 March 1993, Bull.civ. 1993.II.82. 21 Cass. crim., 13 June 1991, Bull.crim. 1991.250. 22 See Viney and Jourdain, Conditions at 1129-32, para. 1000; Le Tourneau and Cadiet at 916, para. 3819. 23 See C. Radé, Comment at D 1997.Jur.384. Contra: P. Brun, Comment at JCP 1998.II.10005, and Viney and Jourdain, Conditions at 1132, note 180. 24 See Cass. civ. 2e, 24 June 1998, Bull.civ. 1998.II.205 and Cass. civ. 2e, 5 November 1998, JCP 1999.II.10084. 592/6
Cass. Ass. plén., 10 November 1995 Larher v. Sté Harscoat 25 6.F.20. INEXCUSABLE FAULT In the middle of the street at night A person commits an inexcusable fault when his or her conduct is exceptionally grave and intentional, so as to expose him or her to a danger of which he or she should have been aware. Facts: The plaintiff, who wore dark clothes, was standing in the middle of the street during a rainy night, trying to hitch a lift. He was hit by a car which had itself been hit by a van belonging to the defendant. The plaintiff sued the defendant pursuant to the Loi Badinter. At issue was whether the conduct of the plaintiff constituted an inexcusable fault (faute inexcusable) within the meaning of Article 3(1) of the Act of 5 July 1985. Held: A first court of appeal dismissed the claim. In a first decision in the case, the second civil chamber of the Cour de cassation quashed the decision of the court of appeal and remitted the case for final determination. A second court of appeal refused to follow the Cour de cassation and dismissed the claim anew. The case was brought before the Assemblée plénière (Plenary Assembly) of the Cour de cassation, which quashed the decision of the court of appeal and remitted it for further determination. Judgment: Within the meaning of [Article 3(1) of the Loi Badinter], an inexcusable fault is an intentional fault of exceptional gravity, whereby a person exposes himself or herself, without good reason, to a danger of which he or she should have been aware... In order to hold that the plaintiff committed an inexcusable fault, the court of appeal found that he crossed the road and remained more or less in the middle of it, in order to stop a vehicle so as to be taken on to his home; on that basis, the court concluded that the conduct of the plaintiff was intentional. The court of appeal went on to find that the plaintiff was outside of a populated area, on an unlit road, at a time of heavy traffic, dressed in dark clothes, at night and in rainy weather; on that basis, the court concluded that the conduct of the plaintiff was exceptionally grave. He entered into this course of action without good reason, for mere convenience. In remaining in the middle of the road, he exposed himself to a danger of which he should have been aware, having previously avoided being run over by a bus. Finally, the court found that his alcoholic intoxication was not such as to deprive him of all discernment. Those findings do not suffice to establish inexcusable fault, and the court of appeal therefore infringed [Art. 3(1) of the Loi Badinter]. [The Cour de cassation expanded on this point in dealing with an incidental argument.] In this case, in view of the findings of the court of appeal, the behaviour of the victim did not constitute a fault of exceptional gravity and thus it was not inexcusable; the victim could 25 Bull.Ass.plén. 1995.6. 592/7
6.F.20. have believed that he would be visible in the light from the headlamps of the vehicles which he wanted to stop in order to be taken home. Notes (1) It will be recalled that, in the case of victims who were not drivers, the defendant s only defence is the inexcusable fault (faute inexcusable) of the victim (or the 26 voluntary self-infliction of injury). The annotated case is included to show the extent to which the Cour de cassation restricts the scope of inexcusable fault, in order not to deprive victims of the benefit of the Loi Badinter. (2) The concept of inexcusable fault had already been used in the course of legislation concerning liability for work accidents and for transportation. 27 In a series of decisions on 20 July 1987, the second civil chamber of the Cour de cassation had indicated that it would follow the same definition of inexcusable fault 28 under the Loi Badinter. That position was confirmed by the Plenary Assembly of the Cour de cassation in the annotated case. An inexcusable fault thus comprises the following elements: 29 - objectively, the conduct of the victim must have been (i) exceptionally grave and (ii) without valid justification; and - subjectively, the victim must have acted (i) voluntarily and (ii) when he or she should have been aware of the danger. On its face, this test would seem exacting, but not impossible to meet. Indeed, the case law concerning work accidents and transportation shows that courts relatively often find that the victim committed an inexcusable fault. (3) In the realm of traffic accidents, however, the Cour de cassation has in practice 30 applied the above test very restrictively, as the annotated case clearly demonstrates. The behaviour of the victim was certainly very blameworthy (under the influence of alcohol and wearing dark clothes, he stood in the middle of an unlighted street at night, in rainy conditions), and yet the Cour de cassation declined to find that he had committed an inexcusable fault. In fact, Viney and Jourdain conclude from their survey that the Cour de cassation has found inexcusable fault only where pedestrians ventured onto motorways to which they did not have legal and physical access or where passengers 26 See supra, 6.F.16., Note (3). If the victim was less than 16 or more than 70 years old, or was more than 80% invalid, the defendant cannot invoke inexcusable fault as a defence (and is left with the voluntary infliction of injury as the sole defence). 27 See Viney and Jourdain, Conditions at 571-9, para. 613-6. 28 Cass. civ. 2e, 20 July 1987, Bull.civ. 1987.II.160 and 161. 29 See Viney and Jourdain, Conditions at 579-82 and 1150-4, para. 617-2 and 1021; Le Tourneau and Cadiet at 924-7, para. 3852-5. 30 See also the cases mentioned by Le Tourneau and Cadiet, ibid. and Viney and Jourdain, ibid. 592/8
jumped off a motor vehicle while it was in motion. 31 (4) In order for the non-driving victim to be deprived of his or her right to compensation, not only must the defendant show that the victim committed an inexcusable fault, but also that such fault was the exclusive cause of the accident (and not of the injury). Even if it may be thought that the criteria of foreign cause would apply (i.e. an event which was unforeseeable, irresistible and external to the defendant), 32 French case law has settled on an interpretation of exclusive cause according to which it suffices that the defendant was not at fault, so that the fault of the victim excludes any fault on the part of the defendant. 33 31 Viney and Jourdain, Conditions at 1153-4, para. 1021. 32 On foreign cause, see supra, Chapter III, 3.2.3. and Chapter IV, 4.1.3, Introductory Note under h) and 4.F.38.-39., Notes (1) to (3) thereunder. 33 See Viney and Jourdain, Conditions at 1155-7, para. 1023; Le Tourneau and Cadiet at 927, para. 3856. 592/9