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Coris News November 2007

Welcome to this year's final edition of Coris News. This time we turn our attention to our nearest neighbours France.

For the majority of our insurer clients, France, as the main thoroughfare into the UK and continental Europe, is the location of the majority of claims received.

This edition focuses on the Badinter Law, 1985, as well as a few other interesting stories coming out of France.

RULES GOVERNING LIABILITY OF A DRIVER UNDER FRENCH LAW

The introduction in France of the law of 5th July 1985 (known as the Loi Badinter) revolutionised the handling of road traffic claims in that country.

As well as imposing on motor insurers a mandatory timetable within which to put forward settlement offers it also created various classes of privileged victims who (subject to very limited exceptions) became entitled, as of right, to compensation irrespective of traditional liability rules. These include pedestrians, cyclists and passengers.
The position of drivers of motorised vehicles under this regime has remained less clear cut and has evolved since the introduction of the Badinter law. The French Motor Insurers' Bureau (Bureau Central Français) issued last month a guidance note particularly aimed at assisting foreign insurers whose policyholders have been involved in accidents in France. Set out below (and with acknowledgements to the authors of that text) is a summary of the advice provided, contrasting the position prevailing before and after the introduction of the Badinter law.

Before 1985 the traditional rules applied

Before the law of 5th July 1985 was enacted, the rules governing the liability, following road traffic accidents, of drivers of land-based motorised vehicles were contained in the civil law provisions (regulated by Articles 1382 to 1384 of the French Civil Code).
A driver who intended to pursue a claim could establish liability against another driver based upon his or her fault, and on the basis of custody and control of a vehicle. The "custodian" could then seek to deny liability by demonstrating that the accident was due to an outside cause such as an Act of God, the act of the third party, or the victim's own negligence.
Many accidents were resolved by an apportionment of liability; the behaviour of the two parties involved was analysed, judged, and if it was considered that one of the drivers was 90% responsible for the occurrence of an accident the other party would be liable to the extent of 10%. A wrongful act, even minor, by one of the parties involved was sufficient to engage that party's liability unless a wrongful act by the other party could also be established. When the circumstances of an accident remained unclear this could also lead to a reciprocal requirement by each party to compensate the other in full (based on the application of Article 1384 of the French Civil Code).

The position following the introduction of the Badinter Law of 5th July 1985

The Badinter Law overturned the principles outlined above. However, before approaching the new legal framework it is necessary to understand the objectives of this legislation.
Firstly, the Badinter Law is an autonomous law, which applies only to victims of road traffic accidents in which a motorised land-borne vehicle is involved. Normal liability provisions are excluded.

Secondly, this is a law of compensation which has, as its basis, a belief that the risk of driving a motor vehicle should result in systematic compensation for the victim.

Thirdly, and most importantly, the Badinter Law is not a law dealing with liability. Its starting point is that a victim of a road traffic accident is normally to be entitled to compensation.

The position of the driver within the framework of the Badinter Law

Only a wrongful act committed by a driver reduces or excludes his or her entitlement to compensation.

Article 4 of the Badinter Law sets out the general principles "a wrongful act committed by the driver of a motorised land-based vehicle has the result of limiting or excluding compensation for the damage he or she suffers".

The conduct of the driver must be assessed in order to establish his or her entitlement to compensation and not the behaviour of any other party involved in an accident as applied under the Civil Code Provisions before 1985. It is only necessary therefore for the court to consider the driver's own behaviour and whether this reduces or excludes his or her right to compensation.

Since 1985 there has been a series of decisions of the French Supreme Court (Cour de Cassation) which have further clarified the application of the Loi Badinter to claims by drivers.

Initially it was determined that any fault committed by a driver who was the victim of a road traffic accident could result in his or her entitlement to compensation being reduced by reason of a wrongful act which had contributed to the damage, even though no driving fault as such had been committed. An example of this was where an injury had been rendered more serious by reason of the failure to wear a seatbelt.

Similarly in July 2002 a decision was handed down by the French Supreme Court that a driver's entitlement to compensation could be reduced by reason of being under the influence of alcohol even in circumstances where alcohol played no part in the occurrence of the accident.

A recent judgement however in April 2007 has reversed those decisions ruling that a driver victim has an entitlement to compensation in circumstances where, although above the legal alcohol limit, no causal link can be established between the level of alcohol and the damage suffered. A distinction is drawn therefore between breaking the law and driving badly.

The final position reached therefore is that a driver (and his insurers) will be obliged to compensate another driver against whom no negligent driving behaviour can be demonstrated. However, he in turn may equally be entitled to receive compensation from the other driver (and his insurers) unless it can be demonstrated that his own driving was such as to justify a reduction or exclusion of his entitlement to such compensation.

What is ultimately at issue is only the relevant behaviour of the victim and not that of any other participant in an accident.

CORIS E-MAIL
Coris UK now has a generic e-mail address for those who require any general information.
The address is:
information@coris-uk.co.uk

CORIS UK WEBSITE

The Coris UK website is now live.
The web address is www.coris-uk.co.uk.

DRINK DRIVING IN FRANCE

According to national statistics France has one of the worst road safety records in Europe.

Despite increased police checks, of the 4,709 road deaths officially recorded here in 2006, government figures show that just over a quarter of those fatal accidents involved drivers who were over the drink-drive limit.

The current laws in France say that any driver found with between 0.5g/l and 0.8g/l can be fined 135 Euros (£91) and will lose six of the 12 points on their driving licence.

Go above that and a driver risks having his licence taken away, receiving a 4,500 Euro (£3,025) fine and possibly being sent to prison for up to two years.

If a drunk driver causes a serious injury in an accident, that driver is likely to face a jail term of up to 10 years. And if drugs are also involved, the penalties become even harsher with longer prison sentences and heftier fines.

Earlier this month, the French National Road Safety Council called for the laws on drink driving to be toughened up in France with more police checks, especially at weekends.

It wants to see the legal limit lowered to just 0.2g/l by 2010 - the limit recommended by the European Commission in Brussels.

The department of transport has rejected that call, insisting the current rules in France are adequate.
Source: BBC website 29.07.07

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