The law of July 5th, 1985 , known as Loi Badinter creates a special diet of compensation for the victims of traffic accident.

It aims to facilitate and accelerate the compensation for the victims of these types of accidents, by protecting them particularly. Nevertheless, she is regularly criticized by the doctrines like founding inequalities between the victims.

Towards the law of July 5th, 1985

The Assurance of the motorists is made compulsory by the law of February 27th, 1958, now codified with the article of the Code of the insurances. The law thus ensures the victims of traffic accidents which their damage will be fully compensated, the risk of insolvency of the debtor of an obligation of repair being isolated.

Accidentology

Nevertheless, the number of accidents knows in the years 1970 records: the number of killed, over the blow or 30 days after their accident, because of the road accidents, was of: 16445. One consequently founded a policy of Traffic control, which made it possible to reduce the number of accidents appreciably. The number of killed thus established with: 6058 in 2003, is a reduction of 2,7.

A particularly incomprehensible jurisprudence

The democratization of the car correlatively involved a natural multiplication of the dispute carried in front of the jurisdictions, which applied to these accidents the mode of the Responsabilité because of the things. But jurisprudence groped as well as its positions appeared illogical, unequal and unjust.

The driver was thus, under the terms of the mode of liability for the things, completely exonerated of its responsibility if it brought back the proof of a Major force, external, unforeseeable and irresistible event. It had been decided that were not external with the driver the rupture of Frein S, the bursting of Pneu S or the detachment of a kneecap of direction, whereas the motor vehicle traffic implies the trinomial one driver, vehicle, road . Being the unforeseeable character of the major force, the Jurisprudence was extremely hesitant. An oil tablecloth on the road could be, according to the circumstances, foreseeable or not, while water puddle pools, even in times of rain, had been considered to be unforeseeable; announced by the weather, it is not it any more. A Chien passing in front of a car is unforeseeable, while a Chat passing in front of a Scooter is not it. During this time, a stone projected by a tire can, or not, unforeseeable being. The same remark is true for the decisions relating to the insurmountable character of the major force: the decisions are connected without any overall logic.

The appreciation of the fault of the victim, other causes exemption of the driver, was discussed as much. Jurisprudence decides initially that the fault of the victim presenting the characters of the major force involves the complete exoneration of the driver. She said later that the fault of the victim which did not present these characters was partially exonératoire, even if the fact is not faulty.

The doctrines are very critical with respect to these decisions, and develop the idea that only a inexcusable fault of the victim , reprehensible and deliberately selected behavior , can exonerate the driver partially. Indeed, it appears abnormal that the victim supports a reduction of its allowance because of a fault of imprudence or negligence, whereas the debtor of the compensation is not the driver, but its insurance, the driver being obligatorily assured. For these authors, the sanction the faulty attitude of the victim does not have a preventive virtue: the prospect to receive a partial compensation is not likely to influence the behavior of a pressed, distracted or awkward person.

The Desmares stop, “provocation with the reform”

See also: Stop Desmares

The French Court of appeal returns in 1982 a decision, the Arrêt Desmares, in which it holds critical accounts doctrinal of its preceding jurisprudence.

Thus, it receives as causes exemption only the major force. Consequently, a victim, even faulty, will be fully compensated, except if the accident were made inevitable and unforeseeable by a cause external with the driver which because the accident. In fact, the legal discussions are reduced considerably, for the benefit of the victim of the traffic accident. By this jurisprudence, the Court of appeal develops a policy of the “whole or anything”.

However, the courts dealing with the substance of a case resist Desmares jurisprudence considerably, while the Second civil court persevered. This jurisprudence also presented an important risk of drift, so much so that the prosecuting attorney Charbonnier, in his conclusions, had invited the jurisdictions to moderate the allowance put at the load of the author of the damage, in the name of equity. Partisans and adversaries of this new jurisprudence met, therefore, to call upon the legislator then proposed a draft of a Loi on the traffic accidents, which caused a wide-ranging doctrinal debate, and made its way,

In 1981, a new commission was instituted, chaired by the first president of the Court of appeal Pierre Bellet. It made it possible to lead to the reform of 1985, by taking of account the projects of Mr. Tunc, while ensuring coherence between the right of the Civil responsibility and the Droit of the insurances.

The spirit of the reform of 1985

Following disorder Desmares stop in 1982, and with the consensus which is established since 1981 on the need for a law to create a special diet of compensation, the Gouvernement Fabius, and its Ministre for justice Robert Badinter, deposits a Bill at the office of the National Assembly.

Two readings were advanced.

For some, the law of July 5th, 1985 comes to be grafted with the common right of repair, with the manner of a legislative correction of the Desmares stop, being satisfied to regulate the causes of exemption. The base of the right to repair, on the other hand, would remain article 1384, subparagraph first, of the Civil code. According to this design, the right to repair is committed only in so far as the conditions of the common right are observed, in particular being the causal link between a fault and the dommageOn research minus a person in charge that the debtor of an obligation of compensation, which is the insurance company of a driver.

Conditions

The conditions for application of the law are posed by its article first:

The provisions of this chapter apply, even when they are transported under the terms of a contract, with the victims of an traffic accident in which a terrestrial engine vehicle like its trailers or semitrailers is implied, except for the railroads and of the trams circulating on ways which are clean for them.

If the conditions for application of the law are met, it only applies, and the recourse to the common right (mode of Responsabilité because of the things, based on articles 1384 and following of the Civil code French, is not possible any more.

An traffic accident

The traffic accident is a unforeseeable occurrence and unforeseeable in which is implied which a vehicle was put in circulation by its driver. The vehicle can then be on a public or deprived highway, moving or parking.

A terrestrial engine vehicle

An implication of the vehicle

According to the law of 1985, the victim has a right to repair since a vehicle is " impliqué" in the accident. But how to appreciate this concept of implication? It was initially thought that it had to be compared to the concept of causal link. This assimilation was quickly given up by jurisprudence (V. Raffi, Implication and causality in the law of July 5th, 1985, D.1994, chr.158.). The concept of implication is indeed much broader and more flexible than that of causality. The implication can thus be retained where causality was excluded. Today there is a subdivided analysis of the concept of implication:

- in one the 1st time, let us attach to the concept of implication in the accident:

Jurisprudence had initially made a distinction between the vehicles and vehicle parkings. Indeed, for jurisprudence, so that there was implication of a vehicle parking, it was necessary that this last had a disturbing role for circulation even if this parking were regular taking into consideration administrative rule of parking. A contrario, if the parking were not disturbing for circulation, there could not be implication, even if this parking were irregular. But this position was criticized by estimating that since there had been contact, the vehicle was to be implied. The Court of appeal then reconsidered its jurisprudence by operating a reversal in a stop of the Second Civil court of January 25th, 1995 per which it states: " in the accident any vehicle is necessarily implied which was run up against, that it is with the stop or in mouvement." I.e. the distinction between moving traffic and vehicle parking becomes null and void, even nondisturbing, the vehicle can be parked implied. The only criterion which remains is thus that of the intervention in the accident: . Since there was shock, the vehicle is necessarily implied even if it circulated or stationed in a completely normal way. It is the case of the collisions between two vehicles but also of the pile-ups. . But a vehicle can also be implied without there being shock. Indeed, it is enough that the presence of the vehicle played a part in the realization of the accident so that this one is implied there. Thus for example, the vehicle is implied which has surprised a motorcylcist what caused his fall or the vehicle preventing that which doubles it to be folded back thus causing a collision with a car coming opposite. The absence of shock thus complicates the task of the victim which must prove the determining role of the vehicle in the supervening of the accident. This proof is easily allowed by jurisprudence. He is thus admitted the implication of a vehicle which projects fine gravels on a pavement causing the later fall of a pedestrian.

- in the second time, let us interest in the concept of implication in the damage:

IT is not always obvious to know if the victim were wounded by the accident in question in particular in the event of accidents in chain. This is why it is necessary, so that the responsibility for the driver is committed, that the damage is ascribable with the accident in which the vehicle was implied. To support the victim, original intention of the law Badinter, jurisprudence posed a simple presumption: the implication in the accident makes suppose the imputability of the damage resulting from the known as accident. It is to the guard of the vehicle that it falls to reverse this proof. For example, that which runs up against a vehicle whose passenger had already been ejected by a first shock exonerates himself by this proof towards this victim.

The victim of an accident

Conditions not selected

The law Badinter of July 5th, 1985 does not make the traditional, expensive distinction with our French legal system, between the public individuals and people. Since a law of December 31st, 1957, the terrestrial accidents of engine vehicles concern the administrative jurisdictions not as one would have been tempted to think it, but of the judicial courts observing the rules of the civil law. It thus results from it that the law of 1985 applies indifferently that the vehicle belongs to a private individual or the Administration and that the driver is deprived or civil servant. (Civ 2nd, February 13rd, 1991, two stops, Bull.civ., II, n°52) The law of 1985 does not distinguish either according to whether one is in a case of contractual liability or a case for criminal responsibility. The article 1st specifies that the law applies even if the victim is transported under the terms of a contract. I.e. the passengers of a taxi or a bus for example, cannot see their rights restricted by the stipulations of the contract of carriage. By extension, the rules of any contract, whatever it is, must be isolated. Thus those of the work contract if an employer is victim of an accident caused by his employee (Civ.2e, March 6th, 1991, Bull.civ., II, n°70), or those of a leasing agreement of vehicle with driver.

Causes of exemption

To avoid déresponsabiliser the citizens in their ensuring an automatic repair, the legislator instituted a complex mode of exemption partial or total according to the faults of the victim:

Major force or fact of a third

According to article 2 of the law of July 5th, 1985, the victims, including the drivers, cannot see themselves opposing the major force or the fact of a third by the driver or the guard of a vehicle mentioned to article 1. I.e. an even unforeseeable and irresistible fact external, therefore constitutive of the major force, is never exonératoire. Let us take several possible situations: - the case where the victim is not a driver and requires repair of the driver or of the guard of the implied vehicle, ex: a pedestrian is reversed by a car. In this case, the driver will be able to never exonerate its responsibility by calling upon the major force. - the case where the victim is a driver and exerts its rights against an other driver, ex: two motorists strike themselves. In this case, one applies to the letter article 2 with knowing that none the drivers will be able to be exonerated by calling upon a fortuitous occurence. - the case where the victim is a driver and exerts its rights against a non-conductor, ex: a motorist acts of responsibility against a cyclist who because a damage with the vehicle, in this situation, the law Badinter can in no way of applying. Indeed, this law has vocation to apply only to the cases where the defendant with the action is a driver. The victim will be able to only act on the base of the common right i.e. on the 1384 al article 1st of the civil code, and the author of the damage will be able to exonerate himself by bringing back the proof of the major force or the fact of a third.

Fault of the victim

Only the fault of the victim can be exonératoire. But the fault of the victim has an incidence different according to the combination from several criteria: nature of the damage, quality of the victim and nature of its possible fault. - in the event of material damage undergone by the victim, the fault of this one always causes to limit or exclude its compensation, without needing to distinguish according to nature the fault or the age from the victim (art 5 law July 5th, 1985). But the law remains dumb on the appreciation of the degree of exemption. The Court of appeal, after having tried to pose criteria of distinction between the complete exoneration and the partial exemption, left leave to the courts dealing with the substance of a case the sovereign capacity choose between exclusion or simple limitation of responsibility.

- in the event of physical injury undergone by a driver, one then applies art 4 of the law. The fault of the conducting victim causes to limit or exclude the compensation for their damage. The effort of responsibilisation wanted by the legislator naturally turns to the drivers themselves, thus the provisions of art 4 are not applicable to the non-conductors, like the pedestrians, the cyclists. Jurisprudence had to define what is a driver, because the driver of a motor vehicle is truly conducting only lorqu' it has the orders of them. Thus jurisprudence could decide that a person remained conducting while at the same time its engine was stopped, but on the other hand it is not it any more if it gets out of her vehicle to change a wheel or to push her motor bike, or when it is pressed on the car. Even at the wheel it is not systematic that the person is described as driver if she does not order truly the vehicle, thus a pupil of driving school does not have the quality of driver in the event of damage. In case of doubt about the quality of the victim, the person in charge will may find it very beneficial to report the proof that at the time of the accident the victim had well the quality of driver in order to make play the provisions of art 4 aiming at exonerating or, at the very least, to limit the compensation due to the victim in the event of fault for the latter. Indeed the owner of a vehicle is not supposed to be conducting known as vehicle. Once one identified the quality of the victim (always in the event of physical injury because as one saw previously, in the event of material damage, the quality of the victim is not taken into account), it is advisable to see the applicable mode. Lorque one is in the presence of a victim-driver, its fault exonerates in whole or part the person in charge. But one needs for that the fault is certain, the simple fact that the victim could have avoided the accident does not constitute an unquestionable fault. That this fault has a causal link with the damage and not with the accident, thus the fact is needed then that the victim did not carry its safety belt is a fault in direct link with the damage because if it had normally put it, its damage would have been reduced. As in the case of material damage, the question of knowing if the exemption must be total or partial is abandoned with the sovereign appreciation of the courts dealing with the substance of a case.

- in the event of physical injury undergone by old non-conductors from 16 to 70 years, one applies art 3 al 1st law of 1985. This article makes the distiction according to the age of the non-conducting victim (cyclists, pedestrians, passengers…). When they are old from 16 to 70 years, they can be seen opposing only their inexcusable fault if and only if it estla causes exclusive accident. These two conditions of exemption are cumulative. Jurisprudence since 10 stops of July 20th, 1987, remained constant on its definition of the inexcusable fault: " only is inexcusable within the meaning of this text, the voluntary fault of an exceptional gravity exposing without valid reason its author to a danger of which it should have had conscience." Jurisprudence is shown very lenient with regard to the victims in the application which it makes of this concept. Indeed it qualifies excusable situations which would deserve the inexcusable qualification of fault. For example, the Court says that the fault made by a pedestrian is not inexcusable to cross the roadway in a state of intoxication the night except agglomeration, without visibility and reason….(stop of March 3rd, 1993). On the other hand inexcusable the fact for a pedestrian was considered to be of crossing while running a way to great circulation to the exit of a tunnel, at the most dangerous place where there was no visibility. Once the extremely difficult stage of the inexcusable qualification of fault, it is necessary still, so that the person in charge sees his limited responsibility, that this fault was the exclusive cause of the accident. It is thus for these victims that the law most radically improved repair, indeed the exception of the inexcusable fault is considered in a very restrictive way by jurisprudence.

- in the event of physical injury undergone by non-conductors of less than 16 years and displeased 70 years, one applies art 3 al 2 of the law of 1985. For these vulnerable people to which one compares the handicapped people to 80%, the legislator still reduced the cases of exonéraion of the implied driver. In this particular case, the person in charge is exonerated only on the assumption of an intentional fault of the victim vulnerable non-conductor, i.e. the latter sought voluntarily the damage. That aims in practice primarily the case of the suicide. Then when this condition of exemption (raricime in practice) is met, the exemption of the person in charge is total even if this made a fault will derniera.

Implementation of the right to repair

August 1st

A compromise procedure

Actions récursoires

the action recursoire is an action exerted by that which carried out an obligation of which another being held, against this last in order to obtain its judgment with what was carried out. to see article 1214 French civil code.

Random links:

Cardiocrinum | Louis Claude de Saulces de Freycinet | David Collenette | Francisco Bilbao | Ar-Rachid