Contributory negligence or fault occurs if the damage to the victim is not only caused by the
damage-causing act or event, but also by the negligent or wrongful behavior of the victim
himself. An example would be if the owner of an expensive vase places it in a position from
which it can very easily fall. Then, arguably, the person who inadvertently hit the vase and
made it fall, does not have to pay full compensation, because the damage is also the fault of
the owner.
The following example illustrates the extremity of this type of strict liability. Monsieur
Gabet was driving his car on a highway. Then a man named Ouradi crossed the highway
without taking any precautionary measures whatsoever. Gabet’s car struck Ouradi, who
was injured. Ouradi claimed damages from Gabet for his personal injuries. The Court of
Appeal dismissed Ouradi’s claim, because in their opinion Ouradi was guilty of an
inexcusable fault by running across the highway without taking precautionary measures.
TheCour de Cassationhowever quashed the decision of the Court of Appeal. According to
the Cour de Cassation, the facts didnotdisclose any inexcusable fault on the part of victim.
This type of absolute strict liability comes, in its effects, close to a system of
social security. The community of car owners is paying through their compulsory
insurance policies for the damage suffered by traffic casualties.
6.6.3 Liability for Things in French Law
TheLoi Badintair, as sketched above, is closely linked to the general rule of strict
liability for things (accident situations in which things are involved), which was
developed by the French courts in the last century on the basis of Article 1384
al. 1 French Civil Code. TheTeffainedecision of 1896 made the first step to stricter
liability by shifting the burden of proof of fault from the victim to proof of absence
of fault by the wrongdoer: this led to a rebuttable fault for damage caused by a
thing.
Suppose that a bottle of soft drink explodes after it was placed in the sun. On the basis of the
Teffainedecision, the victim does not have to prove any longer that the manufacturer of the
bottle did something wrong. On the contrary, if the manufacturer wants to escape liability,
he must prove that the damages werenotcaused by a fault of his.
Three decades later, the famousJand’heur IIcase of 1930 introduced a real strict
liability for dangerous objects, especially including motor vehicles. The main
requirements for this liability for things (an elevator, a falling tree, an escalator,
cars, instruments, etc.) is an active role of the thing in case of direct contact.
For instance, a tile that falls from a roof top onto the head of a passer-by.
The owner of a thing is assumed to be its custodian and therefore liable for
damage caused by this thing. However, under French law, even the producer of
things can be liable, as the one being responsible for the design or construction of
the product.
Stevenson would be liable for the damage of Donoghue on this ground, if their case were
governed by modern French law.6 Tort Law 117