Case:
D. 1964, 733 Veuve Estève v. Guenier Subsequent developments
Date:
25 November 1964
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Cour de cassation

The Court:

Given that, according to the findings in the judgment under attack, Guenier, having been found guilty of the involuntary manslaughter of Ludovic Estève and fined, was held civilly liable only as to half because the victim’s imprudence had contributed to his death;

Given that the Court of Appeal is criticised for thus apportioning liability in the suit brought by Mme Vallée, widow of Ludovic Estève, suing as partie civile in respect of her own material and moral harm as well as that of her minor son Philippe Este whose tutor she is, whereas, according to her contention, in a case like the present where the representatives of the victim bring a civil suit in their own name, founding on their own entitlement to compensation for the damage they themselves have suffered by reason of the damaging act, they cannot be met by a division of liability resulting from the fault of the victim, seeing that the accused who contributed to the harm is liable for the whole of the harm, division of liability applying only as between those severally liable and affecting neither the nature nor the extent of their liability towards third parties;

But given that where the accused and the victim are both at fault the measure of damages must be determined according to the proportion of responsibility determined by the judges, and that accordingly the Court of Appeal was right to hold that Guenier was liable to the Mme Vallée only to the extent of his own responsibility;

For these reasons, DISMISSES the application for review.

Doctrine upheld: See Jurisclasseur “Civil Liability and Insurance” Fasc. 162 and 123: If a person suffers indirect harm originating in the harm directly suffered by the principal injured party, the question arises whether a fault of the latter which contributed to the accident will provoke a reduction of the damages due to the secondary injured party. In other words, can the defendant take advantage of the fault of the principal injured party to obtain partial relief by pleading such fault as against parties suffering harm only indirectly? Case law has, on this question, evolved with difficulty. After a long period during which fault by the principal injured party was held not to be capable of being pleaded as against secondary injured parties, the Court of Cassation had decided in favour of such fault being capable of being so pleaded (since Crim, 28 July 1933). It later changed its doctrine to holding the contrary (Crim, 31 March 1960, Civ.2 30 Nov. 1963). The resistance of the lower courts to this doctrine provoked a decision of All the Chambers of the Court of Cassation which, on 25 November 1964, effected a new change of doctrine by allowing the fault of the principle injured party so to be pleaded. In 1978, however, the Second Chamber reacted with hostility against this doctrine, by finding for the entire liability of the defendant, after having held that that the fault of the latter can not be pleaded as against the secondary injured parties (Civ.2, 7 Jan. and 25 Oct. 1978). But several lower courts continued, after these decisions, to limit damages for indirect loss, and followed faithfully the principle that such fault cannot be pleaded. Finally, by two decisions of 19 June 1981, the Full Court of the Court of Cassation confirmed the decision of All the Chambers of 1964, but with different reasoning from that set out later by the Court of Cassation. The principle laid down in 1964 by all the Chambers is therefore maintained: a fault committed by the principle injured party can be pleaded as against the secondary injured parties. But the justification for this principle is no longer the absence of liability of the principle injured party and the lack of a remedy for the defendant. The reason why the fault can be pleaded is no longer to be found in the area of cause and effect, but rather in that of the loss. The doctrine can be explained by the special nature of indirect loss which the Court of Cassation wishes to put on all fours with loss caused directly. The decisions of the Full Court have been later confirmed by different Chambers of the Court of Cassation, including the Second Civil Chamber. Even if the ground covered by this doctrine was for a time limited by the Desmares line of cases, which refused any sharing of liability with the principal injured party if the defendant was held liable pursuant to art. 1384, para. 1, and 1385 of the Civil Code, there is no limitation today, since this line of cases was abandoned in 1987. Any fault by the principal injured party impinges upon the right to damages of those claiming under him.

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