How is ‘fault’ assessed under French Law?
By Michael Hagan, Senior Solicitor & Katherine Deal, QC
In a recent case pursued by Fletchers, our client was an English national, who had suffered serious injuries as a result of a road traffic collision in France. The circumstances of the case gave rise to an interesting question; How is ‘fault’ assessed under French Road traffic Law? (known as ‘Loi Badinter’.)
Our client was injured whilst on holiday in France. He was riding his motorcycle along a country road when there was a collision between his motorcycle and a large French registered lorry. Due to his injuries, he had no recollection of the accident or the build up to it. There were no independent witnesses. This mean that the only the account of the incident was from the lorry driver. The driver said he saw our client riding toward him on the wrong side of the road, neither braking nor swerving.
As a result, accident reconstruction evidence was commissioned by both parties. It found that the most likely cause was that our client was riding on the wrong side of the road and as he came around a bend, he collided head-on with the lorry. Forensic evidence suggested the lorry driver applied his brakes to avoid the collision and tried to pull over to the right-hand side. However, further evidence showed he was only able to move a little to his right.
Complications to pursuing a Claim
If the claim had been subject to the laws of England & Wales, our client’s case wouldn’t have met the threshold for CFA funding.
However, French law starts from a position in which all victims of road traffic accidents are, in principle, entitled to be compensated This was the case with our client because all he needed to show was that he was injured in a road traffic collision, and that the lorry was ‘involved’ in the accident, in order to bring a claim against the driver.
The Court of Cassation (France’s highest Court) have previously said a vehicle shall be considered to be ‘involved’ in an accident if it participates ‘in any way whatsoever’. In a famous case In 2014, the Court of Cassation found that a parked car, which was struck by a falling kite surfer was ‘involved’ for the purposes of French law.
The wide application of ‘involvement’ provides a presumptive right of compensation to anyone involved in a road traffic collision involving other vehicles. Therefore even if you as a driver are at fault for an accident, you can sometimes recover compensation from the insurer of the other vehicles involved, even if they were innocent parties.
However, French law limits this right by including exceptions which say faults committed by a victim can be used against them to limit or exclude his presumptive right to compensation.
When carrying out this analysis you look at the driver victim’s conduct in isolation, in other words his cause cannot be aided by pointing to faults made by the other driver(s); it is not (as in Spain) a question of exclusive fault, it is about evaluating the responsibility of the driver victim for his own misfortune
How is the nature of fault assessed?
As the accident reconstruction evidence became clearer (and showed without sensible wiggle room that our client had been on the wrong side of the road) a question remained: is it a subjective or an objective test?
If approached subjectively, there was nothing to show any intentional assumption of risk from our client who was unlikely to have deliberately driven into a cement lorry. . Yet, if approached objectively, he drove into head on collision, without any justification or possible explanation for his actions. Although he braked right before impact, it was far too late.
For our client we obtained French law advice from a French lawyer who advised that the court would likely not fully remove his right to compensation but would in fact just reduce it. This was because, by driving on the wrong side of the road he had only committed ‘one’ fault and there had been ‘’no intentional assumption of risk’’, he was not for example, speeding, or carrying out a dangerous overtaking manoeuvre. The French lawyer’s view was that it appeared likely that, from our client’s perspective, at the time of the collision he was not subjectively doing anything wrong i.e. he didn’t appreciate he was on the wrong side of the road at the time.
In support of his view the French lawyer cited a French Court of Appeal case from 2019 in which The Court approved a decision not to extinguish the right to compensation on the grounds that ‘this fault, which did not reflect intentionally dangerous or hazardous conduct and was not particularly serious’.
However, there is also considerable force in the counter argument especially when one looks at the wording (in English translation below) of Articles 3 & 4 of Loi Badinter which concern, respectively, the potential liability of non-driver & driver victims
The victims, are compensated for the damage resulting from the attacks on their person that they have suffered, without their own fault being able to be invoked against them, except for their inexcusable fault if it was the sole cause of the accident.
A fault committed by the vehicle’s driver shall bring about a reduction or exclusion of his right to compensation.
The definitions make a r distinction between ‘inexcusable fault’ in the context of non-drivers and ‘fault’ in the context of drivers, suggesting driver victims’ conduct is more likely to be assessed objectively.
Overall, both subjectivity and objectivity seem to be important factors when evaluating the ‘blameworthiness’ of the victim driver claiming compensation under French law, but the system allows for compensation to be recovered in situations which, if English law applied, claimant’s would not be able to succeed.
Our case was settled just over a week before a high court trial, with both sides appreciating the substantial litigation risks posed to each of them, therefore a decision was not made in court. However, this remains an interesting and arguable point that does not appear to have been finally settled in French law.