Cour de Cassation, Third Civil Chamber, (pourvois no. 03-20.068 and 03-20.991)  Bull.civ. 2005.III. no. 136 p. 123
22 June 2005
Translated by:
Tony Weir
Professor B. S. Markesinis

The principle that one must avoid creating abnormal disturbances in one’s vicinity entitles the victims of such disturbances to sue not only the owner of the neighbouring building from which the nuisance emanates and also the builders who caused it, since the latter can be treated as neighbours for the time being.

The owner of the building from which the nuisance emanates is subrogated to the rights of his neighbours once he has paid them, and can claim a full indemnity from the building contractors who caused the nuisance, they being strictly liable to him regardless of fault on their part.

Given, according to the judgment under attack (Paris, 25 September 2003), that  when the George V hotel proceeded to a total renovation of the hotel, Duminvest having the “management of the project” and the main contractor being Bouygues Bâtiment, the building operations caused a  nuisance to the neighbouring hotels, the Queen Elisabeth and the Prince de Galles, operated by the Marquis Hotels, for which they claimed damages;

On the first ground of complaint:

Given that Duminvest criticises the judgment for holding it liable to the Queen Elisabeth Hotel and Marquis Hotels when according to the complainant the strict liability arising from the principle that no one may cause excessive trouble to his neighbours applies only when claimant and defendant are in a stable relationship of neighbourhood, which is not the case when builders are temporarily renovating a building at the instance of its owner, so that in holding that neighbours could sue not only the owner of the building but also the builders who caused the nuisance without having to show that the latter were at fault the court below violated the principle mentioned above, along with articles 544 and 1382 Code civil;

But given that the court of appeal was right to hold that the principle prohibiting excessive disturbance in a neighbourhood applies not only to the owner of the building whence the nuisance emanates but also to his building contractors  who for the duration of the building works are temporarily neighbours of the parties affected,
the complaint is unjustified;

On the other complaints:

Given that on the basis of an expert report which the complainants have failed to refute,  the court of appeal found that the losses caused were abnormal – the loss of business  of the Hotel Prince de Galles, though relatively slight in percentage terms being significant in actual amount, and the loss of profits of the Hotel Queen Elisabeth due to reduced occupancy amounting to 11 and 34%; given that the court was not bound, when considering the obligations of the main contractor towards the site-owner, to ask which elements of the nuisance, if any,  might be attributable to sub-contractors, that its decision on the amount of the damage, based on the proved loss of profits but less than the amount claimed, is unappealable, and that it was entitled without infringing the principle of the separation of powers to hold that the serious inconvenience suffered by the neighbouring hotels rendered liable not only the George V hotel but also the firm retained to execute the works;

this complaint is unfounded;

Given that Duminvest and Bouygues criticise the judgment below for requiring them to indemnify the George V for the sums George V had to pay the owners of the neighbouring properties, whereas, according to the complainants,

1. Unless the site-owner who  initiates the building works and is responsible for the ensuing inconveniences can prove that the builders were in breach of their contract with him in such a manner as to relieve him of liability either wholly or in part, it is he who must ultimately bear the cost of compensating the victims even if the builders themselves are held liable to the neighbours, so in allowing the site-owner to have recourse against the builders “without needing to establish any fault on their part” the court below violated article 1145 Code civil;

2. In the absence of any finding that there was any special agreement between the site-owner and the builders that the latter would hold the former harmless in respect of any liability for nuisance due to the works, the decision of the court below lacked legal basis in the light of articles 1134 and 1792 ff. Code civil;

3. It follows from the rule that when several parties are liable in solidum none of them can claim from any of the others any more than the part for which that party is liable, that a judge faced with a claim between parties liable in solidum must decide the extent of each party’s contribution to the harm, taking account of the seriousness of their misconduct and the extent to which it contributed to the harm, failing which the division should be equal; here, in deciding that the George V Hotel could claim a full indemnity from others liable with it in solidum on the irrelevant basis that it was subrogated to the victim’s strict liability claim the court below violated article 1214 Code civil;

4. Although the pleadings of Duminvest and the two hotels made it crystal clear that the site-owner was fully aware of the risks of a nuisance being created, the court of appeal misconstrued these pleadings and maintained, in violation of article 1134 Code civil, that no such argument had been made;

5. Although the experts’ report stated that owing to its very structure the Hotel George V was a kind of drum which magnified noise and spread it to the walls and floors of neighbouring properties,  that “as a result of preliminary tests this situation was perfectly well known to those involved in the renovation before the work really started”,  that “in order to minimise the inconvenience to the neighbours for eighteen months the site-owner would have had to accept and bear the cost of significant extra works (insulating the party walls)”, and that “the site-owner, refusing to accept the necessity of such extra works, opined that it was for the building contractor to try, despite his reduced freedom of manoeuvre,  to minimise the nuisance”, these clear and precise terms of the report were misconstrued by the court of appeal in violation of article 1134 Code civil when it held that it did not follow from the experts’ report that the site-owner was fully aware of the risks of nuisance and yet required the work to be carried on;

6. Since subrogation does not permit one codebtor to claim a full indemnity from another unless he shows that he was liable for that other and not just along with him, and since a building contractor is not strictly liable to the site-owner if the work abnormally affects the neighbours, it was for the site-owner to show that it was only because of faults committed by the building contractors that he was liable to his neighbours; here the court below violated articles 1251(3) and 1315 Code civil by dispensing the site-owner from the need to show that in compensating the neighbours he was liable for the building contractors and not just in addition to them, first by accepting the site-owner’s right to a full indemnity from the building contractors  and then by rejecting the latter’s recourse against the site-owner on the ground that any such claim must show that the site-owner, fully informed of the risks and consequences of causing a nuisance, expressly  intended to relieve the building contractors of all responsibility in that respect;

7. Furthermore, in holding that it was for the builders to show that it was the express intention of the site-owner, in full awareness of the risk of creating a nuisance and its consequences, to relieve them of liability, the court  violated articles 544, 1147, 1382 ff. as well as 1792 ff. Code civil by erroneously imposing on the contractors a presumption of liability towards the site-owner for damage done to the neighbours by the works;

But given that having held that the Hotel George V had paid its neighbours the damages for which it was held liable by the court of first instance and found that neither the contracts nor the correspondence between the parties nor the experts’ report showed that the site-owner had intended in full awareness of the risks of nuisance to exempt the building contractors from liability while causing them to proceed with the works, the court was entitled, without misconstruing any of the documents, to hold that as subrogee of the victims the Hotel George V was entitled to a complete indemnity from the building contractors  who were liable to the site-owner whether or not they were at fault;

From which it follows that this complaint is unjustified, and

For these reasons dismisses all the complaints.

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