François Duranel
(Managing Director France)
The loi Badinter was the French Revolution in MTPL law.


Anniversaries should be celebrated – 30 years “Loi Badinter”



In the summer of 2015, the French compensation law, the so-called “Loi Badinter” (Badinter Act), celebrated its 30th anniversary. This event was the subject of a recent article by InterEurope AG in the “Themendossier” issue 19/2015 of the Versicherungsforen Leipzig, entitled: “Connected Cars are on the rise – What Will Change for Vehicle Insurance?” The high level of interest in the subject prompted InterEurope AG to dedicate a special edition of the InterEurope Magazine to the “Loi Badinter”.

In this Special, our colleagues from InterEurope France will explain the developments leading up to the Loi Badinter and give an overview of the relevant legal developments in France since 5 July 1985. We will then examine the so-called “Kitesurfer Ruling” by the Court of Cassation (Cour de cassation) on 6 February 2014 (Case no.: Cass. Civ. 2ème No. 13-13265) to highlight the fundamental principles of the current legal situation in France. If you have further questions regarding our services and claims handling in France, you can contact us at any time.

We have also revamped the look of the InterEurope Magazine, which will continue to keep you updated in all aspects of European claims handling, including latest developments and market trends. The updated InterEurope Magazine will be relaunched as an online magazine (starting with this special newsletter) together with our new website, but you will be able to receive regular editions from Summer 2016 onward.

We hope you enjoy our InterEurope Magazine Special and wish you a pleasant reading.


French traffic law prior to the “Loi Badinter”

Since 5 July 1985 traffic accidents in France have been governed by the “Act on the Improvement in the Situation of the Victims of Accidents in Road Traffic and on the Acceleration of the Compensation Proceedings”, which gained its nickname as the “Loi Badinter” from the former French Minister of Justice Robert Badinter.

Prior to the introduction of the Loi Badinter, compensation according to French traffic law was governed by the general right to damage compensation as set out in the French Civil Code (Code civil), particularly in Articles 1382 and 1384.

The Civil Code to this day does not differentiate between fault-based liability or strict liability. In road traffic matters, Article 1384 sets out the presumption of fault on the part of the vehicle owner. He can only exonerate himself (partly or fully) if he can show the accident involved a force majeure or fault on the part of a third party. The party causing the damage has to compensate the damage in full if unable to rebut the presumption by proving fault of another party or showing any other mitigating circumstances.

As strict as this assumption of liability may seem, the general provisions, particularly the extensive possibilities to exclude liability, often worked against the party which suffered the damage and it was often possible to exclude liability. As a result, there was insufficient protection for victims.

Another factor contributing to the uncertain legal situation in road traffic matters was the extensive freedom that French judges have when making judgements. This freedom (which is to be welcomed in principle), coupled with short judgments without much by way of analysis or explanation led to a lack of consistency in judgements given in identical circumstances. Complete judicial independence led to decisions not being comparable to another, as different judges applied different weight to evidence and interpreted evidential rules differently. This was not satisfactory for Claimants or the insurance industry, since it was not possible to predict results, which lead to increasing litigation risks.

The 2nd Chamber of the Court of Cassation (Cour de cassation) attempted to resolve the legal uncertainty that had arisen from such vastly divergent case law in the “Desmares Ruling” (l’arrêt Desmares) on 21 July 1982 (Case no.: 81-12850). The Court decided that it was no longer possible to exlude liability in road traffic accidents, except for force majeure. While this was a radical measure from a legal point of view, the Chamber deemed it necessary to bring an end to the seemingly arbitrary judgments given in existing case law. As the Desmares ruling and its “all-or-nothing” doctrine was in open contradiction to the previously applicable interpretation of French law, it is often seen as a “provocation to reform” – a clear sign to legislators that a change in law was urgently necessary.

As the amount of traffic accidents rose in a situation where even the highest court could only impose a minimum degree of order and consistency by openly breaking with previous practice, French legislators found themselves forced to reform road traffic liability. The result was not only a reform, but rather a true revolution in French road traffic law.


The Loi Badinter of 5 July 1985 and the principle of fundamental compensation

On 5 July 1985, the French legislature adopted the “Act on the Improvement in the Situation of the Victims of Accidents in Road Traffic and on the Acceleration of the Compensation Proceedings”. In contrast to the previous legal situation, the guiding principle of the “Loi Badinter” was, and is, from the outset, the full compensation of road traffic victims.

As is often the case with fundamental reforms, there was an immediate dispute as to whether the Loi Badinter was the sole legal basis of liability for road traffic accidents. One side held the view that the law governed only the grounds for exclusion of liability and that otherwise the general provisions of the Civil Code would continue to apply to road traffic liability. Others argued that it was a new, distinct approach to liability, with a conscious departure from the traditionally established civil law principles based purely on causality. The consensus nowadays is that the Loi Badinter is an autonomous set of rules to decide liability, which are distinct from general French civil law, at least in terms of establishing the basis for a claim.

Consequently road traffic liability claims in France are solely governed by the Loi Badinter.

The general principle of the Loi Badinter is simple: There is a presumption that each victim of an accident has a fundamental right to full damage compensation. It is sufficient if certain objective conditions are met which allow for damage compensation under traffic law. Once these conditions are met, it is checked whether a reduction of or an exclusion should apply due to the claimant’s conduct during the course of the traffic accident.

It is to be noted that, independent of the type of damage or whether the claimant was the driver, neither force majeure nor fault of a third party will reduce a claimant’s claim.

The break with the past as a result of the Loi Badinter did not take place over night and met with resistance. Indeed, 30 years of case law in the French Court of Cassation was necessary in order to clarify all aspects of the Act. One such fundamental ruling was handed down in February 2014 by the French Court of Cassation in the so-called Kitesurfer Case.


The Kitesurfer Case – one case to describe them all

Hardly any other case in recent years is better suited to clarify road traffic liability in France than what is known as the “Kitesurfer Case”, the resolution of which is often incomprehensible for foreign professionals who are not familiar with the system.

The ruling by the Court of Cassation (Cour de cassation), the appellate court of the highest instance in the Republic of France, on 6 February 2014 (Case no.: Cass. Civ. 2ème No. 13-13265; also published in: Jurisprudence Automobile n°862; Article by Sylvie Chanh) is interesting for two reasons:

  • the application of the Badinter Act in an unexpected case; and
  • as a summary of case law development in French traffic law.


Background of the case

A kitesurfer was caught by a stormy gust of wind and was flung into the air. He then crashed onto the surface of a public parking area and was then slung against a car parked there. The kitesurfer was later found unconscious and his body was partially trapped under the parked vehicle.


The judgement

The sudden occurrence and lack of foreseeability of the accident were not disputed; there was no intentional act. Since the event had taken place in a public parking area, it involved an accident that fell under the scope of the provisions in the “Loi Badinter”, according to the court.

The judge in the first instance held the view that the parked car was involved in the accident within the meaning of Article 1 of the Law of 5 July 1985, i.e. it met the required definition of “implication” (more on this in the following), so the judge ordered the vehicle’s liability insurer to provide compensation in full to the kitesurfer.

By way of background, we need to understand two terms which are fundamental to French compensation law in accordance with the Loi Badinter:


  1. The term “traffic accident”

The term “traffic accident” is interpreted very broadly and is based on the definitions of the terms “vehicle” and “traffic”.

The law requires that the vehicle be a motorised vehicle (French abbreviation «VTM » = véhicule terrestre à moteur), irrespective whether it is in operation or parked at the time of the accident.

The term “traffic” is not limited to driving on public roads, but traffic can also take place on private property, such as a beach, field, parking area, factory courtyard, construction site, warehouse, garage, golf course, etc..

Therefore, even a vehicle on private property is deemed to be “in road traffic”.

The vehicle liability insurer had argued that the case before the court was not a road traffic accident, but a water sports incident. The Court of Cassation rejected this argument, as they held it was irrelevant whether the claimant was initially exposed to the risks associated with taking part in traffic and a sports accident can also be classed as a road traffic accident.


  1. The term “involvement in an accident”

“Involvement in an accident” is an indispensable condition for the application of the Act of 5 July 1985.

“Involvement in an accident” must be differentiated from the “fault for an accident”.

A vehicle is involved in an accident when it passively or actively took part in the accident in a certain way at a certain point in time. The law speaks of “implication” here, which can be translated as “involvement” or “participation”.

Since another ruling by the Court of Cassation in 1994 (Civ 2ème 25 May 1994 n° 92-19455) and on account of the ongoing refinement of case law, a vehicle is regarded to be involved in the sense of “implication” if there is any contact between a victim and vehicle, whether or not it is in motion.

For a parked car to be considered as involved in an accident, it’s location has to create an obstacle to traffic and it is irrelevant whether it is parked legally.

If there is no collision, the claimant is responsible for proving the causality between the vehicle and the damage (e.g.: the fall of a pedestrian startled by a honking vehicle; a driver blinded by headlights). Although the claimant has to prove this “implication”, he does not have to prove causation, i.e. that this caused the accident, only that the vehicle was involved (“implication”) in the accident. Fault is therefore not necessary – the “implication” alone triggers liability. In this respect, it can be seen very clearly that the Loi Badinter law is based on the principle of compensation, not liability.

The term “involvement in accident” allows the court to identify the parties involved in the accident, who are potentially liable to compensate the claimant, but this involvement alone is not sufficient decide the question of fault or the amount of the compensation.

A vehicle’s involvement in an accident is proven if the vehicle played a role in the specific accident event. In a collision, it is sufficient if there is simple contact between the injured person and the vehicle.

In the case discussed above, the kitesurfer was flung against the parked vehicle; the Court of Cassation saw this contact as sufficient for judging the parked car as involved in the accident. The judges emphasised that pursuant to Art. 2 of the Loi Badinter the presence of force majeure or acts by third parties never reduce the victim’s claim to compensation.


  1. Compensation of victims and influence of an error on compensation

Articles 3 to 6 of the Loi Badinter govern whether the claimant can be held accountable for his own misconduct. The main term “faute” be roughly translated as “fault” or “error”. Any mechanical error, such as a suddenly non-functioning brake can also fall under the term “faute”. The term “faute” therefore includes both errors made by persons and faults in objects.

When deciding contributory negligence, the Loi Badinter differentiates strictly between material damage and personal injury claims:


a. Personal injury

Every injured person with the exception of the vehicle driver reserves the right to compensation in full (passengers, pedestrians, cyclists). They cannot of contributory negligence unless it involves an extremely serious error, i.e. be grossly negligent.

However, a driving mistake or another “faute” by a driver will lead to a finding of contributory negligence, reducing his right to compensation or even ruling it out in full according to Art. 4 of the Loi Badinter. Drivers are therefore in a worse position than other “involved” persons in the case of personal injury. Because of this, French case law contains extensive analysis of causation to determine whether a victim of a road accident can (still) be regarded as a driver. An injured party is no longer viewed as the driver if he was slung out of the vehicle and remained on the road (Cass. Civ.2e on 11 Dec 1991, JCP 93, II 212897). But if the person slung out of the car is immediately hit by the wheels of a lorry, he shall still be deemed the driver (Cass. Civ. 2e on 15 May 1992; Bull.civ. II no 140).

The burden of proof to show that the injured party was (still) the driver falls to the person who claims this. This is usually the party against which the claim is made, since it hopes to reduce or even exclude the claim by showing the injured driver to have been contributory negligent.

By contrast, in the group of other persons involved in an accident who are not vehicle drivers themselves, there must be an inexcusable “faute” (gross misconduct) for liability to be excluded or compensation to be reduced. However, a reduction for inexcusable “faute” may only be applied if it was the sole cause of the accident. If not, no contributory negligence can apply to non-drivers.

In 1987 the Court of Cassation put forward in this regard a definition of inexcusability that is still valid today (Cass. Civ. 2e on 20 July 1987, Bull. Civ. II no. 160):

Inexcusable within the meaning of Article 3 of the Act of 5 July 1985 is intentional misconduct of an unusual degree of severity which without an acceptable reason exposed its originator to a danger which he must have known.

Acts that would be described as grossly negligent in other countries are not necessarily classed as such by the Loi Badinter.

Even if one establishes gross misconduct, this must also be the sole cause of the accident to achieve a reduction because of contributory negligence. Any misconduct by other persons liable excludes the “faute” of the non-driver as the sole cause of the accident.

Within the group of passengers or involved persons who are not “drivers” within the meaning of the law (“non-drivers”), the legislators also protect the weakest traffic victims, specifically:

  • persons under the age of 16
  • persons under the age of 70
  • persons with permanent invalidity of over 80 %

Claims by these persons can never be reduced for contributory negligence.


b. Material damage

In the case of material damage, the injured persons, whether drivers or “non-drivers”, can be held accountable for any error (“faute”) they have committed. This “faute” may result in a reduction or even the exclusion of the right to compensation.

Regardless whether the injured party was a driver, passenger, pedestrian or cyclist, any errors by the injured person leads to a reduction or exclusion for contributory negligence.

Consequently, according to the Loi Badinter, an injured person can make a full recovery for personal injury, but not have a claim to compensation for material damage (e.g. a bicycle rider who ignores a stop sign and is hit by a vehicle).


c. Contributory negligence in the Kitesurfer Case

How did the different reasons for exclusion function in the kitesurfer case? Since the kitesurfer was not a driver, it would have been possible to charge him with:

 contributory negligence in regard to his material damage (kite surfboard) in accordance with Art. 5 of the Act of 5 July 1985

 an intentional act or inexcusable misconduct that simultaneously represents the sole cause of the accident, with regard to his physical injuries (Art. 3 of the Act of 5 July 1985).

In its appeal, the vehicle insurer tried to use the principle of inexcusable misconduct by the injured person as the sole cause of the damage by arguing that the kitesurfer should have known of the potential risk due to his lack of knowledge of the area (he was kiting there for the first time).

However, the appeals court rejected the appeal and did not class the negligence of the kitesurfer as inexcusable misconduct since it was not a particular serious error.

Furthermore, French case law (since a ruling in 1989 (Civ 2è, 28 June 1989, n° 88-16149)) has adhered to the principle that negligence (or at least contributory negligence) of the owner or driver of the vehicle is presumed as soon as one is involved. This principle has been reaffirmed multiple times, particularly in complex cases. As a result of this, the vehicle owner or driver must prove that the personal injury was not caused by the accident in which his vehicle was involved.

In the Kitesurfer Case, the vehicle owner’s insurer argued that the kitesurfer’s impact on the parking area surface before hitting the vehicle, caused the serious injuries to the kitesurfer and referred to a biomechanical study and an expert report by a physician in the process.

The appeals court, however, held there were inconsistencies between the study, the report and the statements made by witnesses. It came to the conclusion that it was not possible to prove with sufficient certainty whether the total damage was caused solely by the force of the impact with the ground.

In making the judgement, the Court of Cassation also expressly stated that the insurer who cannot prove with sufficient certainty that the damage was not caused by the accident must pay compensation in full.


  1. Statutory limitation in road traffic accidents

Although limitation did not play a role in the Kitesurfer Case, it should be noted for the sake of completeness that despite the reform of the law on limitation periods of 17 June 2008, limitation in personal injury claims due to road traffic accidents expires after 10 years (in accordance with Art. 38 of the “Loi Badinter”). The limitation period commences on the date that recovery is completed (i.e. the date from which the accident-related injury no longer changes) rather than the accident date.

The reform of 17 June 2008 fundamentally changed French limitation law. The goal of the reform was to realign civil limitation requirements by reducing the number and length of different limitation periods.

The most important change was in the form of the new Art. 2224 of the Code civil, which introduced a new general limitation period of 5 years from notification of the claimant about the circumstances justifying the claim.


The Loi Badinter after 30 years – a summary

In its 30 years of existence, there have been a large number of unexpected cases in which the Loi Badinter was applied by the highest civil courts, with French case law constantly expanding the application of the Act of 5 July 1985. This mainly took place to protect the interests of injured persons, which corresponded to the intention of the legislators at that time, namely the “improvement in the situation of the victims of accidents in road traffic and the acceleration of the compensation proceedings”.

However, in light of the formulation of the first five articles of the Loi Badinter, which we will present in the following chapter, this was also necessary, since they were drafted concisely and required judicial interpretation. The judgments by the 2nd Civil Chamber of the Court of Cassation have set out the main principles of the Loi Badinter and the exact scope of applicability. The resulting law is an autonomous and independent compensation law for the victims of traffic accidents.


The main articles of the “Loi Badinter” of 5 July 1985


Article/Paragraph 1

The provisions of the preceding chapter [editor’s note – Chapter 1: Compensation of injured persons in traffic accidents] shall apply to injured persons – even if they are transported in accordance with a contract – in the case of traffic accidents in which a vehicle and its trailer or semi-trailer is involved; exempt herefrom are railways and trams that travel on their own traffic routes.


Article/Paragraph 2

The injured persons, including the drivers, may not be held accountable by the driver or owner of a vehicle, as set forth in Article 1, for the occurrence of force majeure or the acts of a third party.


Article/Paragraph 3

The injured persons, with the exception of the vehicle’s driver, shall be indemnified for personal injury without it being possible to hold them accountable for an individual error, with the exception of an inexcusable error that simultaneously represents the sole cause of the accident.
The aforesaid injured persons must be compensated in each case for their personal injury if they are under the age of 16 or over the age of 70 or if they have a degree of invalidity of 80% or higher at the time of the damage.
The injured person within the meaning of the last two paragraphs does not have to be compensated by the originator of the accident for his personal injury if the victim voluntarily sought the damage.


Article/Paragraph 4

An error committed by the vehicle’s driver shall bring about a reduction or exclusion of his right to compensation.


Article/Paragraph 5

An error committed by an injured person shall bring about a reduction or exclusion of his right to compensation for material damage. However, equipment prescribed by a physician must be replaced in accordance with the damage compensation rules for personal injury.
If the vehicle’s driver is not the vehicle’s owner, the vehicle’s owner may hold the driver accountable for the driving error for the purposes of damage compensation with respect to his vehicle. The vehicle’s owner has the right to seek recourse with respect to the driver.


Accident statistics in France

In the following we will present the statistics on the frequency of accidents and the research on the cause of accidents in 2014 in France.


Frequency of accidents

In the automotive area, the year 2014 was defined by a rise in the number of persons injured and killed in road traffic, after a regular decline for almost 25 years. The increase in the frequency of personal injuries (+2 %) and the ongoing rise in the costs connected with them negatively affected insurers of vehicle owners, the combined ratio of which totalled 107 %.


Deadly accidents and physical damage in 2014

According to a final tally by the French Onisr (L’observatoire national interministériel de la sécurité routière / National Monitoring Body for Safety in Road Traffic), 3,384 people died in road traffic in 2014 in France. That is 116 more than in the previous year (+3.5 %).
In 2014 all statistical indicators increased: the number of injured persons (+3.5 %), injured persons treated at hospitals and clinics (+2.6 %, i.e. +669 people) and the number of accidents with physical injury (+2.4 %).
This deterioration can be seen across all traffic participants with the exception of bikers (-1 %) and lorry drivers (-1.8 %).
Unfortunately, the mortality rate rose for pedestrians (+7.3%), for cyclists (+8.2 %) and to a lesser extent for moped drivers (+3.8 %) and for car drivers (+3.2%). The mortality rate for pedestrians and cyclists, which are the most vulnerable traffic participants, did not only rise in 2013 and 2014, but has risen continuously since 2010 (+4 % vs. +7 %).
Despite the unfortunate deterioration in the statistics in 2014, a general reduction in the mortality rate has been seen for moped drivers (-32 %), vehicle drivers (-22 %) and bikers (-11 %) since 2010.


Deadly accidents and physical damage in 2015
By May 2015, 265 traffic participants had died, according to estimates.
Deadly traffic accidents rose slightly (+1.9 %) from the May 2014 figures. By contrast, the number of injured persons checked into hospitals, injured persons in general, and traffic accidents with physical injury fell (-4.5 %, -6.2 % and -4.7 % respectively).
France is currently toward the higher end of average when compared to other European countries. The measures announced by the French Minister of the Interior at the beginning of the year should be the first step toward achieving the goal of fewer than 2,000 deaths in road traffic by 2020.

At the time this tally for 2014 was published, 26 measures had been published.

  • These measures include:
  • Reducing the speed limit from 90 to 80 km/h on certain two-lane sections of road especially prone to accidents;
  • Eliminating the practical obstacles for introducing vehicle equipment to check for alcohol in drivers that have exceeded the statutory limit;
  • Reduction of the permitted alcohol level from 0.2 to 0.0 g/l for new drivers;
  • Prohibition of any audio systems such as ear phones or similar equipment
  • Stopping restriction near pedestrian crossings;
  • Informational campaigns for traffic safety starting in the first year of secondary school beginning in 2015


E-accident report
The e-accident report is an official app provided by French insurers which has been available for download in the Apple Store and at Google Play since 1 December 2014.

With this app, the insured can report accidents with material damage to their insurers through a smartphone.
The e-accident report app can be used in all accidents without personal injury in which a vehicle registered and insured in France is involved.

The e-accident report contributes to a faster processing and regulation of damage. With the app the insured can fill out an accident report in a few minutes. A sketch of the accident and pictures can also be annexed. The screen of the smartphone is used for signing the document. The damage report is then sent directly to the insurer and the policyholder receives a confirmation of receipt by SMS and by email (he also receives a pdf version of the accident report by email).


The best solution for claims handling in France – InterEurope France pursues it
Claims handling in France is defined not only by the strict legal system governed by the Loi Badinter, but also by the system of direct settlement which has existed since 1968. The injured person reports his damage directly to his own vehicle liability insurer and is indemnified by them. This leads to results that are not only sometimes difficult for foreign insurance companies to understand, but also lead to different challenges in the claims handling in France.

99 per cent of claims handling is done in direct contact with the liability insurers of the other party. If service providers cannot communicate with them on equal terms on the same level of expertise and do not understand the French market, including its methods and governance, they are fighting a losing battle.
In the other one per cent of claims, one has to deal with lawyers. Since these lawyers are experts in their field, claims handling in France requires legal competence far removed from the “loss-adjusting” mentality that is widespread among other service providers.

Therefore, the approach of InterEurope France is that of legal expertise and ensuring that employees are trained to master the challenges of the French market.

Our claims handling team consists of 12 employees. Our management consists of lawyers with a dual degree in French and foreign law and they have over 15 years of professional experience in this area.

If you want to find out more about us, please visit our website. We would also be more than happy to arrange a personal meeting to get to know each other and to discuss our strategy for defending your claims in your best interest.

Do you have further questions or queries?

Simply write to us or just give us a call, we are happy to help!

Your Team of InterEurope France


Postal: InterEurope AG European Law Service 84 – 88, bd de la Mission Marchand F-92411 COURBEVOIE cedex
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