Traffic accidents: advantages and dangers of the Badinter law
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These victims then accept in unfair conditions, facing only a large insurance company, an offer of compensation that is sometimes insignificant with regard to the compensation awarded to the courts by independent magistrates and with the assistance of a competent lawyer such as Marie Napoli.
This compensation procedure must therefore be known, including its perverse effects (see article gazette of the palace by Louis MELENNEC: The hand of insurance companies on the compensation of bodily injury, and the imperative need to reform the Badinter law, Gas pal from Wednesday 28 to Thursday 29 June 2000).
The law of 5 July 1985 is applicable as soon as a land motor vehicle is involved, that is to say since it intervened in one way or another in this accident, and even in the absence of collision provided that the vehicle had a disruptive role (Cass Civ 28 February 1990, Cass Civ 8 July 2004).
This compensation procedure is excluded in the case of railway accidents and trams traveling on their own tracks.
The case law, however, has a very broad vision of land-based motor vehicles such as mopeds, agricultural tractors, harvesters, construction machines, ski-trail grooming machines, forklifts, and a self-driving mower (Cass. June 2004) and it does not matter whether the engine is running or not at the time of the accident.
In the case where a motorized land vehicle was not insured at the time of the accident, a Guarantee Fund may be used to compensate the victim, in the alternative, with subrogated recourse against the owner of the vehicle.
Protected victims are: pedestrians, cyclists and passengers, but can also be a rider or a skier.
Their action is directed against the drivers or guardians of the vehicles involved who are then required to compensate the victims.
Accident claims between pedestrians and cyclists are therefore not governed by the Law of 5 July 1985 to avoid being directed against a driver or guardian of a land motor vehicle. .
Or, the driver of a land motor vehicle, victim of a traffic accident can not avail himself of the provisions of the law of July 5, 1985 against a cyclist or a pedestrian.
The law of 5 July 1985 is only applicable to traffic accidents excluding voluntary infringements (the case of the vehicle voluntarily struck by another vehicle).
Thus all movement must allow the application of the law to the compensation of victims: once again the case law has a broad view of the fact of circulation that has applied for example to the accident caused in a field by a farmer who, hitched to a tractor, has thrown a stone into the eye of the victim or to the accident caused on a construction site by a mechanical excavator crawler.
The victim of a traffic accident also constituting an accident at work can obtain compensation for his entire damage under the Act of 5 July 1985, if it is not fully repaired by the benefits of safety social.
“Non-driver” victims (pedestrians, cyclists and transported passengers) are favored. In fact they are compensated for damages resulting from the attacks on their person they have suffered, without being able to oppose their own fault, unless their fault is inexcusable.
It is not inexcusable the fault of the pedestrian who crosses the road in an agglomeration, while the traffic lights made it an absolute prohibition, this victim will be fully compensated.
Other victims are referred to as “super privileged”, ie victims under the age of 16 and those over the age of seventy, or those who are more than 80% disabled. These victims are compensated in all cases except if they have voluntarily sought their damage (case of suicidal behavior for example).
The situation of the injured driver is less favorable since his fault has the effect of limiting or excluding compensation for the damage he has suffered.
The law justified this difference of treatment by the fact that the drivers constitute a category of persons having the control, the use and the direction of their vehicles of which they are consequently responsible for the driving, unlike the non-drivers and would therefore not be not discriminatory
In this regard, if the circumstances of the accident allow to deduce the absence of causal link (role) between the blood alcohol level of the victim driver and the realization of his damage, the court must refuse to limit or to exclude his right to compensation (Cass Pl .. April 6, 2007)
In the case of damage to property, the fault committed by any victim has the effect of limiting or excluding compensation for the damage it has suffered. But damage to property means damage to material property and not economic harm resulting from an injury to the person of the victim who is compensated for the damage resulting from his bodily injury.
With regard to the damage suffered by third parties such as rights holders, for example, their loss is compensated for the damage suffered by the direct victim and thus suffered the same limitations or exclusions. (Article 6 of the Law of 5 July 1985: “the damage suffered by a third party as a result of the damage caused to the direct victim of a road accident is repaired taking into account the limitations or exclusions applicable to the compensation of these persons. damage “).
The compensation procedure of the Act of 5 July 1985 is based on the principle of the offer of compensation to be made by the insurer to the victim, even if he contests his guarantee, within a double time limit. bumper provided for by article L211-9 of the Insurance Code.
In fact, the insurer who guarantees civil liability for a motorized land vehicle is required to submit to the victim a reasoned offer of compensation within three months from the date of the compensation claim, and the maximum period of eight months from the accident.