Badinter Law Application in Road Accidents

Extract

[...] Finally, the fault of the driver who contributed to the realization of his prejudice does not exclude systematically their right to indemnification. The mixed chamber of the Court of Cassation is pedagogical here. It sets a principle, an exception and gives guidelines on the assessment of fault. The solution is acceptable. It has been taken up subsequently, in particular in the judgment rendered by the second civil chamber of the Court of Cassation on November (appeal 11-25.489). The assessment of this fault of the victim driver has evolved towards a better indemnification. [...]

[...] It is therefore an in concreto assessment. III. ? Cass. Civ 2ème February 2000 The present judgment deals with the notion of involvement in the context of the Badinter law. It sets a very general principle: 'Is involved, in the sense of this text (the law of 5 July 1985), any vehicle that has intervened, in any way, in the occurrence of the accident'. Merryl HERVIEU, associate professor, will go so far as to say 'the important thing is to participate'. [...]

[...] This combination refers to the complexity of the law for the ordinary litigant. With these omnipresent norms, the law is no longer clear and intelligible. Whatever the case, on this point, the judges make a very strict application of the Badinter Law. VI. ? Cass. Chambre mixte March 1997 The mixed chamber of the Court of Cassation had to settle the difficulty of the ricochet victims. It ruled, through a principle, that when several vehicles are involved, each driver has the right to compensation for damages suffered directly or by ricochet: that is the principle. [...]

[...] The supreme judges went in the same direction: No longer has the quality of driver the scooterist who falls from his vehicle before being hit by another terrestrial vehicle with engine. This solution has the consequence of restricting the application of the Badinter Law of 5 July 1985 to only drivers of a motorized land vehicle. The scooter is a motorized land vehicle. However, the moment considered is that of the impact. At that moment, the victim has become a 'pedestrian' and not a driver. The victim therefore has every interest in being hit while still being within their motorized vehicle. This is a jurisprudence based on 'chance'. [...]

[...] It has often been repeated and has been part of the constant jurisprudence (example: Court of Cassation, 2nd Civil Chamber December 2023, 22-18.480). This solution has the effect of protecting non-driving victims of road accidents. In fact, the judges impose the demonstration of the voluntary nature of the fault in order to retain the inexcusable fault of the victim. This fault is therefore exclusive of her right to compensation. Note that the fault must be 'of exceptional gravity'. These elements have the consequence of a residual consideration of the inexcusable nature of the victim's fault. V. ? [...]