Case:
Bull. Civ. II, n¿ 160, 90 Case Ouradi v. Gabet Subsequent Developments
Date:
20 July 1987
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:

In view of article 1385 Code civil;

In view of article 3 of Law no. 85-677 of 5 July 1985;

Given that a fault is "inexcusable" in the sense of this text only if, being voluntary and of exceptional gravity, it exposes the person guilty of it without any good reason to a danger of which he should have been aware;

Given, according to the judgment under attack, which upheld the judgment at first instance, that Gabet’s car struck Ouradi who was crossing the highway in a built-up area, and that Ouradi claimed damages from Gabet for his personal injuries, the Caisse primaire d'assurance maladie of Paris intervening;

Given that the judgment dismissed Ouradi’s claim on the ground that he was guilty of an inexcusable fault, inferred from the finding that the victim ran across the highway without taking any precautions whatever and flung himself against Gabet’s car, but that these findings do not disclose any inexcusable fault on the part of the victim, and that therefore the Court of Appeal has violated the text cited;

For these reasons QUASHES the decision below.

Doctrine upheld. See Jurisclasseur “Responsabilité Civile et Assurances”, Patrice Jourdain, Fasc. 120-2: “Today, inexcusable fault plays a more important role in our civil law after the entry into force of the Law of 5 July 1985 on traffic accidents. Article 3, para 1, lays down an exception to the availability of the right to indemnification for corporal damage suffered by certain victims if the latter have committed an inexcusable fault which is the exclusive cause of the damage (negligence (“faute simple”) or gross negligence (faute lourde”) would not suffice). Only an inexcusable fault on the part of the victim is taken into account (….). In a series of eleven decisions dated 20 July 1987 the Second Chamber of the Court of Cassation gave a definition of inexcusable fault on the part of a victim of a traffic accident as envisaged by Article 3 of the Law of 5 July 1985 (Civ.2, 20 July 1987, Bull. II, nos. 160 and 161). The only fault which is inexcusable within the meaning of this text is a voluntary fault of exceptional gravity which, without reason, exposes the person committing it to danger of which he should have been aware. This definition has been adopted by the Criminal Chamber (Crim., 4 November 1987, Bull. no 383) and has just been consecrated by the Assemblée Plénière of the Court of Cassation (Cass. Ass. Plén., 10 November 1995)”. See also Michel Alter, fasc. 470-2: “In the absence of any definition of gross negligence (“faute lourde”) in the Law of 1985, the Court of Cassation has stipulated that, in the case of Article 3 of the Law, inexcusable fault must be understood to be “voluntary fault of an exceptional gravity which exposes the person committing it to danger of which he ought to have been aware” (Civ.2, 20 July 1987, 11 decisions, Bull., II, Nos. 160 and 161). The same definition could be applied, it seems, to the case of a passenger who opens the door while in movement in order to descend from the vehicle. The fact remains that evaluating the inexcusable is in any event eminently subjective and difficult to apply in practice. It is just as awkward to deduce the awareness of danger implied by inexcusable fault. The evaluation must be effected “in abstracto”, by reference to the conduct of an average “circumspect and prudent” passenger, taking into account the concrete circumstances of each case. In any event, such a fault should be found to exist only exceptionally by reason of the harshness of its consequences which deprive the victim of any indemnification”.

Note: The later case law of the Court of Cassation, which has confirmed the doctrine, illustrates well the necessarily subjective nature of such an analysis, even if it can be noted that inexcusable fault is rarely held against a pedestrian injured in a traffic accident. Thus (Civ.2, 3 March 1993, Bull. No. 80), “inexcusable fault is not established where a pedestrian in a state of insobriety crosses a road by night outside a built-up area in a place where there is no visibility and without a valid reason”; and “it is not an inexcusable fault within the meaning of the Law of 5 July 1985 for a drunken pedestrian to squat down on the highway in a fog in the middle of the lane along which an automobile was proceeding” (Civ.2, 6 November, Bull. No. 240). On the other hand (and it can be seen here that the awareness of the danger being run seems to be primordial in the approach of the courts) “A pedestrian, victim of a traffic accident, commits an inexcusable fault when he ventures onto a motorway in breach of the provisions of the Highway Code and in spite of the warning which he had been given” (Civ.2, 8 January 1992, Bull. No. 1). Similarly, “Inexcusable fault is committed by a pedestrian, mortally injured by an automobile, who, knowing of the existence of a near-by pedestrian crossing, sets out to cross a busy major road, forbidden to pedestrians, at the entrance to a subterranean passageway, without looking to see if a vehicle was approaching from his right, but, on the contrary, leaning out to his left after having climbed over the protective barrier” (Civ.2, 23 June 1993, Bull. No. 217). Finally, “A judgement describes inexcusable fault by a pedestrian within the meaning of Article 3 of the Law of 5 July 1985 where it finds that the person in question, whose vehicle was immobilised by reason of a breakdown, at night on the emergency stopping lane of a motorway near to telephone apparatus, nevertheless installed himself, in the absence of any public lighting and any equipment to indicate his presence, on the highest speed lane which was totally forbidden to pedestrians, thus exposing himself to danger of which he should have been aware”. (Civ.2, 27 May 1999, Bull. No.99).

 

Back to top

This page last updated Thursday, 15-Dec-2005 09:05:51 CST. Copyright 2007. All rights reserved.