lShould the Guarantee Fund for Victims of Acts of Terrorism and Other Crimes (FGTI) compensate a person who became disabled as a baby after being hit by another child whose parents were not blamed? This is the question raised by the following case.
On October 13, 1992, the Xs entrusted their 4-month-old daughter A to a babysitter, M.me And, although she is not approved, she already takes care of three children, including her own. while mme And he takes one of them to the bathroom, he hears A crying. When she returns, she notices that 2½-year-old B has grabbed A’s teething rattle and hits her with it.
A few hours later, A had to be taken to the emergency room, where he was diagnosed with severe head trauma. Despite several operations, she remains 90% disabled.
X having filed a complaint, a judicial investigation is opened. Experts who have been around for years have indicated that the Babar rattle, partly made of hard plastic, may be the cause of the injuries, but that there is no “certainty”.
Expert uncertainty
Although the judge is not obliged to follow the expert, and although the nanny is insolvent due to lack of professional insurance, the Court of Appeal of Lyon ruled, on September 7, 2017, that the latter is solely responsible for the accident, and that B’s parents’ liability insurance should not apply. “An aberration”according to M.my Olivier Costa, who has been advising the family for twenty-seven years.
Indeed, the nanny cannot pay the 3 million euros to which she is sentenced, the X must request that the Commission for Victims of Crimes (CIVI) of Lyon replace her. They invoke article 706-3 of the Code of Criminal Procedure, which provides for full compensation for damages and losses. “that have the material nature of a crime”.
Initially rejected, they obtained satisfaction on appeal: on October 20, 2022, the Lyon magistrates ruled that, “counter to” what your colleagues estimated in 2017, “the origin of the injuries is well established”the nurse’s story is “totally credible and compatible with medical opinions on the reality of the blows suffered by B”.
However, these blows were“crime of intentional violence”either“crime of involuntary attack on personal integrityand for clumsiness », the court said, without ruling. Therefore, its consequences are compensable.
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