Lat Law of 5 July 1985, known as the Badinter law, wanted to improve compensation for victims of road accidents who do not drive a car: pedestrians, cyclists, children, the elderly, etc.
Its article 3 states, in fact: “The victims, except the drivers of motorized land vehicles, are compensated for the damage resulting from the personal injuries they have suffered, without their own fault being able to be brought against them except for their inexcusable fault if it was the sole cause of the accident. “
It is very rare for the courts to accept the existence of an “inexcusable fault”, as this recent example shows: on the evening of December 29, 2015, Mr.me A, dressed in dark, is walking on a departmental road, when she is fatally hit by a car. The following investigation shows that she was under the influence of alcohol and drugs and that, a few minutes earlier, she had tried to throw herself under another vehicle.
No fault was found against the driver, Mme B. M’s familyme A nevertheless continues the driver, accusing her of a lack of control, as well as her insurer, in order to be compensated for her “ prejudice of affection “.
Drunk and barefoot
The high court of Albi (Tarn) dismisses it, after having noted “The inexcusable fault From the victim, but she appeals. His lawyer argues that ‘sonly, willful misconduct, exceptionally serious, exposing its perpetrator without valid reason to a danger of which he should have been aware, can exonerate the driver of his responsibility “.
He recalls that “The Court of Cassation only accepts the exclusion of the right to compensation strictly, and in particularly serious cases such as the victim of having stretched out at night in the middle of a busy traffic lane with no ‘lighting “.
On February 18, 2021, the Toulouse Court of Appeal overturn the judgment : ” Yes [Mme A] walked barefoot, dressed in black, on a departmental road without public lighting and where the speed was authorized at 90 km / h, she was not traveling () in the middle of the road, but on the left side in relation to its direction of travel, then facing vehicles arriving in the opposite direction, but above all, it was then under the influence of a very high blood alcohol level of 2.77 gr / liter in the blood, associated with significant traces of cannabis and an antidepressant, so that it is not established that she was then aware of the danger to which she was exposing herself. “
The court orders the insurer to pay 14,000 euros to M’s motherme A and 6,000 euros to each of two of his brothers.
Reverse traffic
The following case pits a cyclist, who rolls in the wrong direction, one evening, in a street in Nanterre (Hauts-de-Seine), and the police who hit him, causing him to fracture his right arm.
In the absence of an amicable agreement on the amount of his compensation, the cyclist, Mr. X, assigns the State judicial agent. The Versailles Court of Appeal confirmed, on January 14, 2021, that its “ misconduct “ cannot be called“Inexcusable », Taking into account the precautions he has taken to be visible (reflective vest, headlights on). She also judges that this fault is not the “ exclusive cause “ of the accident: the driver should have checked whether a vehicle was coming from his right, before entering the street. The court confirms the “ full right “ of Mr. X to compensation.
The Court of Cassation regularly recalls that it is necessary “Characterize »The existence of an inexcusable fault, as the following example recalls. On October 14, 2012, around half past midnight, Clément, 16, and Xavier, 17, were cycling on a departmental road when they were hit by a car. Clément, thrown forty meters away, dies. Xavier is injured. Areas Dommage, the driver’s insurer, summons the parents of the two minors, to ask that they are not entitled to any compensation, because of the “ inexcusable fault, the sole cause of the accident That the latter would have committed.
The Montpellier Court of Appeal, which rules on January 16, 2018, admits the existence of such a fault: it judges that young boys have, “ voluntarily, at night, decided to take the departmental road, instead of the cycle path, to return faster, while their bicycles were devoid of any lighting (), and that, given their respective ages, they were aware of the danger ”.
Xavier and Clément’s parents appealed to the Supreme Court. They explain that the inexcusable fault “ requires the victim’s absence of a valid reason to expose himself to danger “. However, they argue in particular, the two teenagers had chosen to take the departmental road “ to avoid the dangers presented by the unlit cycle path, rutted and strewn with obstacles ”, and “ by tuning to the headlights [des voitures] sufficient visibility capacity for their drivers “.
The Court of Cassation admits, on March 28, 2019 (n ° 18-14.125), that the elements noted by the Court of Appeal “Characterize »Not the existence of inexcusable fault. It quashes the judgment and sends the parties back to the Nîmes Court of Appeal.