Case:
Gaz. Pal. 1969. 2. 312
Case Agent judiciaire de Trésor public v. S.A.R.L. Clans-Var La Flèche d’Azur
Date:
02 July 1969
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

Cour de cassation

The Court:

In view of article 1384(1) Code civil in conjunction with article 1251:

Given that in a case where two people cause damage to each other each gardien is liable for the damage directly suffered by the other, and that in the case of damage caused by both gardiens to a third party, regardless of the legal basis for their liability, the one who has fully compensated the victim is entitled, by means of statutory subrogation, to have recourse against the other to the extent of the latter’s liability;

Given that it emerges from the judgment under attack and the facts before the Court that there was a collision between a dump truck belonging to the Ponts et Chaussées and a bus of the S.A.R.L. Clans-Var La Flèche d’Azur, in which Mlle Godien, a paying passenger in the bus, was injured; given that the tribunal was seised, first, of a claim against the carrier and its insurer, Cie de la Paix, by Mlle Godien, secondly, of a claim by those defendants against the judicial agent of the National Treasury, and finally, of a counterclaim by the latter against the bus company for damage caused to the dump truck;

Given that the judgment below, unable to determine the circumstances of the collision and holding on the basis of article 1384(1) Code civil that each gardien was bound to pay in full for the damage suffered by the other, proceeded to hold that the judicial agent of the National Treasury must indemnify the carrier and its insurer in respect of the judgments against them in favour of Mlle Godien; given that in so holding, whereas both gardiens having contributed to the injuries suffered by Mlle Godien, the liability towards her must be divided equally as between them and that therefore the judicial agent of the National Treasury could be held bound to indemnify the defendants only as to fifty per cent, the Court of Appeal violated the texts cited above;

For these reasons, QUASHES the decision below but only as to the claim for indemnity brought by the Société Clans-Var and the Cie. La Paix.

Subsequent Developments

1) Doctrine upheld: cf. Civ.2, 12 January 1984, Bull. No. 5: “Each of the joint tortfeasors who are liable for the same damage, and who have acted together to cause it in its entirety, is bound to indemnify wholly, so that the apportionment to which a court may proceed affects only the mutual relations between the tortfeasors, and not the extent of their obligations to the party suffering damage”. Recent confirmation of this rule can be found in a decision handed down on 20 June 2000 (Civ.1, Bull. No. 188), which states that “the fact that a person liable for damage has been ordered to indemnify for it does not deprive the victim of his interest in bringing suit against the others who are liable for the same damage as long as such victim has not received effective indemnification”.

2) Doctrine upheld: cf. Civ.2, 10 may 1991, Bull. No. 134: “Where damage is caused to a third party by the collision of two vehicles, and one of the two persons in full possession (“gardiens”) indemnifies the victim, that person has recourse against the other joint tortfeasor. If no fault can be proved against one of the drivers involved, their contribution to the indemnification is due in equal shares.”. See also Civ.2, 18 March 1989 (Bull. No. 86) and 20 June 2002 (published): “The driver of a motorised land vehicle who is involved in a traffic accident and is ordered to indemnify for damage caused to third parties can have recourse against another involved driver only on the basis of Articles 1382 and 1251 of the Civil Code; contribution to the debt is proportional to respective fault; if no fault is proved against the drivers involved, contribution is in equal shares.”.