Cour de Cassation, Assemblee pleniere, (pourvoi no. 04-18.902)
14 April 2006
Translated by:
Tony Weir
Professor B. S. Markesinis

Given that according to the judgment under attack (Paris, 29 June 2004) the body of Corinne Brugiroux was found lifeless on the track beside the platform in a Paris underground station, that a homicide inquiry concluded that the accident occurred unnoticed on the departure of a train and that no witness had come forward, and that the decedent’s widower, M. Brugiroux, now sought damages from RATP, suing as representative of his two minor children as well as in his own right;

Given that M. Brugiroux complains of the dismissal of his claim on the ground that whereas under article 1384(1) Code civil the fault of the victim affords the guardian of a thing a complete defence only if it amounts to a case of force majeure, the court was in flagrant breach of the provisions of that article in concluding that the fall of the victim was explicable only as a deliberate act on her part, in her obvious state of distress, and amounted to a case of force majeure;

But given that while fault on the part of the victim must amount to force majeure if it is to afford the guardian a complete defence, this requirement is satisfied if at the time of the accident it was both unforeseeable and unpreventable, and that in finding that the fall of Corinne Bougiroux must be attributed to her deliberate act, unforeseeable in as much as no employee of RATP could have suspected her intention to throw herself on to the track, that there had been no breach of the safety regulations imposed on RATP which could not be blamed for doing the impossible of preventing access to persons actively seeking the harm to which they deliberately exposed themselves, the court of appeal was perfectly entitled to hold that the fault of the victim here provided RATP with a complete defence;

From which it follows that the complaint is groundless;

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