RESPONSIBILITY OF A MINOR AND ABILITY TO DISCERN THE CONSEQUENCES OF HIS ACTS
LexInter | October 16, 2009 | 0 Comments

RESPONSIBILITY OF A MINOR AND ABILITY TO DISCERN THE CONSEQUENCES OF HIS ACTS

IN THE NAME OF THE FRENCH PEOPLE

The Court of Cassation, ruling in the Plenary Assembly, delivered the following judgment: On the appeal brought by Mr. Jacky Lemaire, residing in Bourbourg (59630), 17, rue Saint-Omer, and by Mr. Emery VERHAEGHE, residing in Bourbourg, 32, rue Saint-Omer, the limited company of Etablissements VERHAEGHE in Bourbourg, And on the appeal brought by Mr. and Mrs. Jean DECLERCQ, residing in Socx (59380), of Mr. and Mrs. Joseph DECLERCQ, residing in Drincham ( 59630), and Mr. Aimé PACCOU, residing in Drincham, in cassation of a judgment rendered on May 28, 1980 by the Douai Court of Appeal (4th Correctional Chamber) which, followingan electrocution of the young Dominique Declercq in an outbuilding of the farm operated by his parents by screwing an infrared bulb into the socket for this purpose, confirmed the decision to release Mr. Emery Verhaeghe, electrician, pronounced by the Correctional Court of Dunkirk by judgment of May 11, 1979, but said Mr. Jacky Lemaire, worker of the latter, guilty of the offense of manslaughter, condemned him to a suspended fine and, on the civil action, declared Mr. Lemaire responsible only for half of the consequences of the accident, leaving the other half to be borne by the victim, and awarded damages to parents, brothers and grandparents, and said the company Verhaeghe fully responsible for its attendant Lemaire . confirmed the decision to release Mr. Emery Verhaeghe, electrician, pronounced by the Correctional Court of Dunkirk by judgment of May 11, 1979, but said Mr. Jacky Lemaire, worker of the latter, guilty of the offense of manslaughter, l ‘Sentenced to a suspended fine and, on the civil action, declared Mr. Lemaire responsible for only half of the consequences of the accident, leaving the other half to be borne by the victim, and awarded damages to parents, brothers and grandparents, and said the company Verhaeghe fully responsible for its attendant Lemaire. confirmed the decision to release Mr. Emery Verhaeghe, electrician, pronounced by the Correctional Court of Dunkirk by judgment of May 11, 1979, but said Mr. Jacky Lemaire, worker of the latter, guilty of the offense of manslaughter, l ‘Sentenced to a suspended fine and, on the civil action, declared Mr. Lemaire liable for only half of the consequences of the accident, leaving the other half to be borne by the victim, and awarded damages to parents, brothers and grandparents, and said the company Verhaeghe fully responsible for its attendant Lemaire. worker of the latter, guilty of the offense of manslaughter, sentenced him to a suspended fine and, on the civil action, declared Mr. Lemaire responsible only for half of the consequences of the accident, leaving the other half borne by the victim, and awarded damages to parents, brothers and grandparents, and said the company Verhaeghe fully liable for its attendant Lemaire. worker of the latter, guilty of the offense of manslaughter, sentenced him to a suspended fine and, on the civil action, declared Mr. Lemaire responsible only for half of the consequences of the accident, leaving the other half borne by the victim, and awarded damages to parents, brothers and grandparents, and said the company Verhaeghe fully liable for its attendant Lemaire. and said the company Verhaeghe fully responsible for its attendant Lemaire. and said the company Verhaeghe fully responsible for its attendant Lemaire.
Mr. Jacky Lemaire, Mr. Emery Verhaeghe, the Société des Etablissements Verhaeghe, Mr. and Mrs. Jean Declercq, Mr. and Mrs. Joseph Declercq and Mr. Aimé Paccou appealed in cassation against the judgment of the Court of Appeal of Douai dated May 28, 1980. By ordinance of March 15, 1983, the First President, noting that the appeals raise the question of whether it is possible to retain the responsibility of a child victim of unintentional injuries or manslaughter a fault having contributed to the realization of his damage, without investigating whether this child had the capacity to discern the consequences of the wrongful act which he committed; that it is a question of principle and that the trial judges differ on the solution likely to
Mr. Jacky Lemaire, Mr. Emery Verhaeghe and the SA des Etablissements Verhaeghe invoke, before this meeting, in support of their appeal, the following single ground of cassation:
has not used; – whereas, on the one hand, this obligation of verification, dismissed by the first judges, did not result either from the contract of employment or from any regulation, as further underlined by the conclusions, which specified that LEMAIRE had noted, after reconnection, that the current flowed normally downstream; – whereas, on the other hand, the application of article 319 referred to above supposes that the existence of a causal link between the fault of the accused and the death of the victim is certain; that this link does not follow from the findings of the infirmary judgment, which, without denying that the assembly used in the farm was prohibited, noted the fault of the victim, having failed to cut the power. ” on the one hand, this obligation of verification, dismissed by the first judges, did not result either from the company contract or from any regulation, as furthermore underlined by the conclusions, which specified that LEMAIRE had noted, after the reconnection, that the current flowed normally downstream; – whereas, on the other hand, the application of article 319 referred to above supposes that the existence of a causal link between the fault of the accused and the death of the victim is certain; that this link does not follow from the findings of the infirmary judgment, which, without denying that the assembly used in the farm was prohibited, noted the fault of the victim, having failed to cut the power. ” on the one hand, this obligation of verification, dismissed by the first judges, did not result either from the company contract or from any regulation, as furthermore underlined by the conclusions, which specified that LEMAIRE had noted, after the reconnection, that the current flowed normally downstream; – whereas, on the other hand, the application of article 319 referred to above supposes that the existence of a causal link between the fault of the accused and the death of the victim is certain; that this link does not follow from the findings of the infirmary judgment, which, without denying that the assembly used in the farm was prohibited, noted the fault of the victim, having failed to cut the power. ” did not result neither from the contract of company nor from any regulation, as underlined moreover the conclusions, which specified that LEMAIRE had noted, after reconnection, that the current passed normally downstream; – whereas, on the other hand, the application of article 319 referred to above supposes that the existence of a causal link between the fault of the accused and the death of the victim is certain; that this link does not follow from the findings of the infirmary judgment, which, without denying that the assembly used in the farm was prohibited, noted the fault of the victim, having failed to cut the power. ” did not result neither from the contract of company nor from any regulation, as underlined moreover the conclusions, which specified that LEMAIRE had noted, after reconnection, that the current passed normally downstream; – whereas, on the other hand, the application of article 319 referred to above supposes that the existence of a causal link between the fault of the accused and the death of the victim is certain; that this link does not follow from the findings of the infirmary judgment, which, without denying that the assembly used in the farm was prohibited, noted the fault of the victim, having failed to cut the power. ” which specified that LEMAIRE had noted, after reconnection, that the current was passing normally downstream; – whereas, on the other hand, the application of article 319 referred to above supposes that the existence of a causal link between the fault of the accused and the death of the victim is certain; that this link does not follow from the findings of the infirmary judgment, which, without denying that the assembly used in the farm was prohibited, noted the fault of the victim, having failed to cut the power. ” which specified that LEMAIRE had noted, after reconnection, that the current was flowing normally downstream; – whereas, on the other hand, the application of article 319 referred to above supposes that the existence of a causal link between the fault of the accused and the death of the victim is certain; that this link does not follow from the findings of the infirmary judgment, which, without denying that the assembly used in the farm was prohibited, noted the fault of the victim, having failed to cut the power. ” a causal link between the fault of the accused and the death of the victim is certain; that this link does not follow from the findings of the infirmary judgment, which, without denying that the assembly used in the farm was prohibited, noted the fault of the victim, having failed to cut the power. ” a causal link between the fault of the accused and the death of the victim is certain; that this link does not follow from the findings of the infirmary judgment, which, without denying that the assembly used in the farm was prohibited, noted the fault of the victim, having failed to cut the power. ”
This plea was formulated in an explanatory memorandum filed with the Secretariat-Registry of the Court of Cassation by Me Le Bret, lawyer for Mr. Jacky Lemaire, Mr. Verhaeghe and SA des Etablissements Verhaeghe. A defense was produced by Me Jacoupy, lawyer for Mr. and Mrs. Jean Declercq, Mr. and Mrs. Joseph Declercq, Mr. Aimé Paccou. Mr. and Mrs. Jean Declercq, Mr. and Mrs. Joseph Declercq, Mr. Aimé Paccou invoke, in support of their appeal, the following two grounds of cassation:
prevent any violation by its regulatory officers; by ruling thus, without investigating whether the “skills” of the worker who performed work that did not comply with the rules of the art extended to the duty of control and supervision incumbent on the manager of the Company, the Court of appeal has not legally justified its decision,
Then, on the other hand, that the civil parties had argued, in their conclusions of appeal, that the manager of the Company, by establishing the invoice for the work on the indications of his employee, had to inquire about the nature and the consistency of the said works and must be aware of their non-compliance with the rules of the art, in particular with regard to the obligation to install earth electrodes in operating buildings; that by refraining from responding to this head of conclusions concerning one of the causes of the fatal accident that occurred, the Court of Appeal disregarded the provisions of article 593 of the Code of Criminal Procedure. ”
SECOND SUBMISSION OF TERMINATION. “Violation of articles 1382 of the Civil Code, 10 paragraph 3 and 593 of the Code of Criminal Procedure, lack of reason and lack of legal basis. In that the judgment under appeal, ruling on the civil action, declared LEMAIRE responsible for half only of the consequences of the accident, On the grounds that a part of the responsibility rests with the victim who should have, before screwing in the bulb, cut the current by activating the circuit breaker, that this precaution was all the more imperative that no indication could be deduced from the position of the switch, it being rotatable, While the trial judges cannot hold against a 13-year-old child, lawyer for Mr. and Mrs. Jean Declercq, Mr. and Mrs. Joseph Declercq, Mr. Aimé Paccou. A defense was produced by Me Le Bret, lawyer for Mr. Jacky Lemaire, Mr. Emery Verhaeghe and SA des Etablissements Verhaegue. On which, the Court, in the public hearing of this day, ruling in Plenary Assembly, lawyer of Mr. and Mrs. Jean Declercq, of Mr. and Mrs. Joseph Declercq, of Mr. Aimé Paccou. A defense was produced by Me Le Bret, lawyer for Mr. Jacky Lemaire, Mr. Emery Verhaeghe and SA des Etablissements Verhaegue. On which, the Court, in the public hearing of this day, ruling in Plenary Assembly,
Joining the appeals because of their connection, On the sole ground of appeal by Lemaire Jacky, Verhaeghe Emery and SA Etablissements Verhaeghe: Whereas, according to the judgment under appeal (Douai, May 28, 1980), that on August 10, 1977, Thirteen-year-old Dominique Declercq was fatally electrocuted by screwing a light bulb into a socket; that Mr. Lemaire, electrical worker of the SA Etablissements Verhaeghe of which Emery Verhaeghe is the manager having, ten days previously, carried out electrical work in the barn where the facts occurred, the Declercq consorts quoted MM. Lemaire and Verhaeghe before the Criminal Court;
Whereas the judgment is criticized for having declared Lemaire guilty of the offense of manslaughter, for having sentenced him to a suspended fine of 500 francs and for having allocated various reparations to the civil parties, the SA Etablissements Verhaeghe being declared civilly liable, then, according to the plea, that, on the one hand, the obligation to verify the absence of inversion of wires on the junction box, ruled out by the first judges, did not result from the contract company, nor any regulation as underlined moreover the conclusions, which specified that Lemaire had noted, after reconnection, that the current passed normally downstream; while, on the other hand, the application of


But given that, to characterize the fault of Lemaire, the judgment retains that a reversal of electric wires maintaining the socket under tension and noted in the junction box which served the room, is in direct relation to the electrocution and that the accused admitted not having, after his intervention carried out the easy and instantaneous verification which is necessary for any electrician to ensure the absence of such inversion of son; From which it follows that the plea is unfounded; On the first ground of appeal of the couple Jean Declercq, the couple Joseph Declercq and Aimé Paccou: Whereas the judgment is accused of having released a company manager on the count of manslaughter then, according to the means, of on the one hand, that a company director has a legal obligation to control and manage his business and must, through his supervision, prevent any infringement of his regulatory officers; by ruling thus, without investigating whether the “skills” of the worker who carried out work that did not comply with the rules of the art extended to the duty of control and supervision incumbent on the manager of the company, the Court of appeal did not legally justify its decision; then, on the other hand, that the civil parties had argued in their conclusions of appeal, that the manager of the company, by establishing the invoice for the work on the instructions of his agent, had to inquire about the nature and consistency of the said work and had to know the non-compliance of these with the rules of the art, in particular as regards the obligation to install earth electrodes in the operating buildings ; that by refraining from responding to this head of conclusions concerning one of the causes of the fatal accident which occurred, the Court of Appeal “disregarded” the provisions of Article 593 of the Code of Criminal Procedure;

But given that the judgment, which did not have to respond to simple arguments, sovereignly retains that the electrical work carried out did not exceed the competence of the worker who was responsible for it and did not impose on the head of company to come and check the work of its employee; That in the state of these findings and statements, the Court of Appeal legally justified its decision on this count;

On the second ground of the appeal of the Jean Declercq, Joseph Declercq and Paccou spouses: Whereas the civil parties complain that the judgment has declared Lemaire responsible for only half of the consequences of the accident then, according to the means , which the trial judges cannot hold against a thirteen-year-old child who died by electrocution following faulty work in the electrical installation of his parents’ farm, a fault having contributed to the achievement of his own damage, without investigating whether this minor had the capacity to discern the consequences of the wrongful act committed by him; But given that the judgment retains that no indication can be deduced from the position of the

That in the state of these statements, the Court of Appeal, which was not required to verify whether the minor was capable of discerning the consequences of his act, was able to estimate on the basis of article 1382 of the Code civil that the victim had committed a fault which had contributed, with that of Mr. Lemaire, to the realization of the damage in a sovereignly appreciated proportion;

From which it follows that the plea is unfounded;
FOR THESE REASONS: DISMISSES the appeals against the judgment rendered on May 28, 1980 by the Douai Court of Appeal; Orders the applicants to pay the costs;

 



Publication: Bulletin 1984 Plenary Assembly n ° 2
Jurisclasseur Periodic 1984 N ° 20256, note Patrice JOURDAIN. Dalloz 1984 N ° 37 p. 525, conclusions Jean CABANNES, note F. CHABAS. Legal notebooks for agricultural mutual insurance, October 1984, P. 590, note Hubert GROUTEL. Directory of the Defrénois notarial profession, 1984, p. 557, note Raymond LEGEAIS.
Contested decision: Douai Court of Appeal, correctional chamber 4, 1980-05-28
Case law precedents: To be compared: Cour de cassation, civil chamber 2, 1980-06-11 bulletin 1980 II N ° 140 p. 97 (cassation) and the judgments cited

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