Case:
Bull.civ. 1971 II no. 345 p. 253 Case Société Azolacq v. Gracy
Date:
15 December 1971
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Given that according to the judgment under attack, which upheld the prior decision in part, the Gracys complained that the noise emanating from the two factories installed near their country-house, one belonging to the Société Azolacq and the other to the Société Aquitaine Chimie, subjected them to disturbance going beyond what is normal between neighbours, and demandeddamages from both companies;

Given that after the first expert’s report it was held that the noise and vibrations emanating from the two factories did indeed expose the Gracys to discomfortbeyond what is normal between neighbours and that a further expert report wascalled for in order to determine the cost to the Gracys of finding elsewhere “conditionsof life largely identical to those they enjoyed before the installation of thefactories”;

Given that the complaint brought by the Société Azolacq criticises the judgment on the one hand for awarding the Gracys the cost of resettlement without finding that their present house had become uninhabitable, and on the other for neither deciding to what extent the country-house had depreciated nor finding that the disturbances resulting from the installation of the two factories went beyond what was normal between neighbours;

But given that the court of appeal, having held by a decision now definitive that both firms were in principle liable, was of opinion that alleviative work would be largely ineffective and decided that the Gracys, who had built their villa “in a peaceful part of the country” only to find their peace and even their health compromised by the installation a few years later and in their immediate vicinity of two large petrochemical works which operated “continuously night and day”, were entitled to an indemnity not only for the depreciation in value of the country-house and damages for eight years’ disturbance by “sound blasting” , but also, since such disturbance was “likely to continue indefinitely”, for the cost of resettlement “in an area where they could find bearable living conditions”;

Given that in view of these findings and statements the courts below were giving compensation for a head of damage which, though occurring in the future, appeared to them to be the certain and direct prolongation of a currently existing situation which was capable of immediate evaluation, and were not laying down any general principles but were exercising their sovereign power in determining the extent and amount of the harm, thus giving a legal basis for their decision;

For these reasons DISMISSES the application for review of the judgment handed down on 7 April 1970 by the Court of Appeal of Pau.

December 1971: The Cour de cassation does not seem to have made an express pronouncement since in a case of a similar nature on this question of indemnification of the costs of removal and resettlement, which comes nevertheless (and as the present judgment mentions) under the sovereign powers of appreciation of the judges of the lower courts. But this solution does not appear to be called in question and it fits into the more general principle according to which detriment, even though future, can give rise to indemnification since it is capable of immediate assessment, as it is a "certain and direct extension" of a current adverse situation (Cour de cassation, criminal chamber, 1 June 1932 op cit and commercial chamber 9 July 1979, Bull no 226: "It is for the court of appeal, in its sovereign powers of appreciation of the detriment, to fix the amount of the compensation in advance, since at the moment of its ruling, the costs which the claimant will still have to incur to obtain respect for his rights are, although future, capable of an immediate assessment").

Translation by Raymond Youngs

 

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