PEOPIL EDINBURGH RTA CONFERENCE 5 & 6 October Bruno PARIS Avocat a la Cour PARIS - FRANCE

Transcription

1 PEOPIL EDINBURGH RTA CONFERENCE 5 & 6 October 2007 Bruno PARIS Avocat a la Cour PARIS - FRANCE

2 INTRODUCTION FACTS & FIGURES (French Ministry of Transports) 84,525 RTAs ,309 RTAs ,318 killed ,709 killed ,076 injured ,125 injured 2006

3 INTRODUCTION FACTS & FIGURES (French Ministry of Justice) ,609 convictions for unvoluntary manslaughter including 374 involving drinking and driving. 15,044 convictions for injuries

4 INTRODUCTION FACTS & FIGURES (Insurance industry) ,000 events

5 INTRODUCTION FACTS & FIGURES (Ministry of Transport) 2006 The number of French vehicles on the road is in excess of 36,000,000. Not including foreign vehicles

6 GENESIS OF THE 1985 ACT «LOI BADINTER» Before the 1985 act, RTAs were regulated by section 1384 of the civil Code. But : - number of victims, - unsatisfactory conditions of compensation, - duration of the proceedings! In 1982, the French Supreme Court for civil (Cour de Cassation), in a attempt to improve the fate of victims, gave a decision in a «Desmares «case that was trying to place the blame on the «guardian»or«custodian» of the vehicle without any other possibility to escape liability than «force majeure «.

7 GENESIS OF THE 1985 ACT «LOI BADINTER» The 1985 Act was very influenced by the 1968 Vienna Convention which edicted a general principle of duty of care and prudence towards the weakest and most vulnerable users of the road : pedestrians, cyclists but also children and the elderly. This is exactly what the 1985 act does : a specific regime for passengers, pedestrians and cyclists plus a regime of extra protection for the ones under 16 y.o. and over 75 y.o. and for the disabled. Such regime provides that such persons have a «right to compensation» i.e. they are fully compensated except where their negligence was inexcusable and was the exclusive cause of the accident.

8 GENESIS OF THE 1985 ACT «LOI BADINTER» The 1985 Act did introduce a notion of exception to the strict rule of equality between all victims. Drivers of motor vehicles were going to have a separate type of liability in which their own fault or negligence could reduce or suppress their compensation.

9 1. The dispositions of the present chapter apply to the victims of traffic accidents in which a motor vehicle or its trailer is involved, even if the victims are being carried pursuant to a contract; they do not apply to trains or trams which run on their own tracks. 2. Neither force majeure nor the act of a third party provide the driver or custodian of a motor vehicle with any defence against victims, including drivers. Translated by: Tony Weir Copyright: Professor Basil Markesinis

10 3. (1) Victims other than drivers of motor vehicles are indemnified for the harm resulting from personal injury regardless of their own fault, unless it was inexcusable and constituted the sole cause of the damage. (2) If such victims are less than sixteen or mote than seventy years old or, whatever their age, have been held to be permanently disabled or incapacitated to at least eighty per cent, they are entitled in all cases to full damages for their personal injuries; (3) However, no damages are due in such cases if the victim deliberately incurred the harm suffered. Translated by: Tony Weir Copyright: Professor Basil Markesinis

11 4. The fault of the driver of a motor vehicle can limit or exclude his claim for damages. Translated by: Tony Weir Copyright: Professor Basil Markesinis

12 GENERAL PRINCIPLES When does the law apply? A MOTOR VEHICLE INVOLVED AN ACCIDENT (deliberate actions excluded) A TRAFFIC ACCIDENT

13 GENERAL PRINCIPLES / NEGLIGENT DRIVERS WHEN SEVERAL VEHICLES ARE INVOLVED, EACH DRIVER IS COMPENSATED, EXCEPT IF HE COMMITED A NEGLIGENCE CONTRIBUTING TO HIS OWN DAMAGES.

14 NEGLIGENT DRIVERS : BREACH OF SAFETY RULES No safety belt : This is a negligence that contributed to the injuries. Cass Crim. 17/06/92 No safety belt : Absence of influence on the injuries received. Cass Civ 2 20/11/01

15 NEGLIGENT DRIVERS : BREACH OF SAFETY RULES No safety helmet : Negligence Cass Crim. 03/09/92 No safety helmet : Absence of influence on the injuries received : injured on legs and lower part of the body Cass Civ 2 04/07/02

16 NEGLIGENT DRIVERS : BREACH OF SAFETY RULES Excessive speed : Negligence : the excessive speed is the only explanation for the accident. Paris 17 A 28/06/04 Excessive speed : No negligence ; speed contributed to the accident and to the injuries but the accident is due to the other driver being in tne wrong lane. Cass Crim 20/03/02

17 NEGLIGENT DRIVERS : BREACH OF SAFETY RULES Drinking & driving : Negligence : 1.66 mg / l Compensation reduced Paris 14/02/05 Drinking & driving : No negligence : no relationship between driving over the legal limit for alcohol and the accident Cass Civ 2 27/09/01

18 NEGLIGENT DRIVERS There was a disagreement between the Criminal section and the Civil section of the French supreme court : Criminal section : the fault must be the direct cause of the accident. Civil section : when the fault reveals either a misdemeanor or has consequences on the damages, then the driver s compensation is reduced or refused. The driver is a risk to the others.

19 NEGLIGENT DRIVERS : BREACH OF SAFETY RULES Ass Plen. Decision of 06/04/07 «there was no link between the alcohol consumed and the damages» The negligence of the driver must have a part in the accident. There is an obvious research of more protection for drivers.

20 A BETTER PROTECTION FOR DRIVERS? There is some hope for negligent drivers : - the CATALA reform group (Sept. 2005) suggested to change the law and to indemnify drivers except in case of wilful negligence. - the Supreme Court in its 2005 report recommended that all drivers be compensated except in the case of an «inexcusable» fault.

21 A BETTER PROTECTION FOR DRIVERS? A CHANGE IN THE LAW IS EXPECTED Despite the opposition of the insurance industry who considers that the protection of drivers would be more efficient through compulsory insurance (over 25% of drivers are killed or injured without third parties). (Rapport FFSA 2006).

22 THANK YOU FOR YOUR ATTENTION!