Inexcusable fault: the measures taken by the employer must be effective and sufficient

(Cass. 2^e civ. 29 February 2024 n°22-18.868 F-B) In a ruling handed down on 29 February 2024, the French Supreme Court (Cour de cassation) reiterated that an employer's failure to take sufficient or effective measures to prevent the risk of aggression to which its employees are exposed constitutes inexcusable misconduct. Consequently, the employer's inadequate response to the problems of aggression may constitute inexcusable fault. We take a closer look at this decision, which provides a further illustration of what is expected of employers in terms of protective measures.  

1. FACTS OF THE CASE :

In this case, a hospital employee was physically assaulted by a patient while she was in the outpatient area of the emergency department. The accident is covered under professional legislation by the CPAM. The employee then brought an action before the social security courts, seeking to have the employer held liable for inexcusable fault. The Court of Appeal upheld the existence of inexcusable fault, considering that :

• The hospital could not have been unaware of the risk of aggression faced by its nursing staff, given that a resurgence of violent acts within the hospital had been reported for several years;
• No measures had been taken before the attack to prevent the risk;
• The treatment and outpatient areas had not been glassed off or access restricted by doors;

so that the security measures implemented by the employer were "manifestly insufficient to prevent the risk of aggression within the hospital itself". In this context, the latter appealed to the French Supreme Court, taking the view that the recognition of inexcusable fault presupposes that a necessary causal link is established between the breach of duty of which he is accused and the injury that occurred at work. According to the court, the attack on the employee by a patient who had already been admitted to emergency for treatment had no causal link with the failure to close the outpatient treatment area. The Court of Cassation disagreed with the employer, confirming the Court of Appeal's analysis and dismissing the hospital's appeal.  

2. THE QUALIFICATION OF INEXCUSABLE FAULT :

As a reminder, the law does not define "inexcusable fault", so it is case law that has defined its contours. The definition that has been given has made it possible to identify several conditions necessary for its recognition, namely :

• Breach of a safety obligation ;
• Awareness of danger ;
• Fault is a necessary but not a determining cause of the accident.

The employer's fault does not necessarily have to be the direct and determining cause of the accident. It is sufficient that it was a necessary cause even if other faults contributed to the damage; in other words, the risk must have been reasonably foreseeable. No account is therefore taken of the seriousness of the breach of the safety obligation, whether it was voluntary or involuntary, or of any extenuating circumstances that might exonerate the employer from liability. In this context, an employer's failure to comply with its legal obligation to ensure the safety and protection of health of its employees constitutes inexcusable misconduct when ⁽¹⁾ :

• The employer was or should have been aware of the danger to which the employee was exposed;
• And that it has not taken the necessary measures to protect it;

It is up to the victim, who bears the burden of proof of inexcusable fault, to demonstrate that these two cumulative conditions have been met ⁽²⁾. As far as awareness of the danger is concerned, this is the awareness that the perpetrator of the fault must or should have had in abstracto as an informed professional, i.e. in the light of current scientific knowledge³and having regard to the feeling that the employer should "normally" have, given his experience and professional knowledge⁴. In terms of measures, the employer is not in breach of the legal obligation if he can prove that he has taken all the risk prevention measures provided for in Articles L. 4121-1 and L. 4121-2 of the French Labour Code ⁽⁵⁾. However, the Cour de cassation (French Supreme Court) has reiterated that the employer cannot simply put in place measures to protect employees: it must above all ensure that they are effective ⁽⁶⁾. 3. ASSESSMENT OF THE MEASURES TAKEN BY THE EMPLOYER : In this case, the judges considered that the measures taken had not been sufficient or sufficiently effective. In fact, they estimated that :

• The recruitment of a security guard and the closure of the treatment area with sliding doors, which had been requested by certain employees to make the premises safer, had taken place after the accident at work;
• The security dog contract was clearly insufficient to prevent the risk of aggression within the hospital itself, even though the employer had recruited a dog handler and used a level 2 security service from 8pm to 7am;
• The organisation of training courses on violence management was an inadequate response to the reality and seriousness of the risk involved;

So, according to the Cour de cassation, the protective measures implemented were insufficient or ineffective to prevent the risk of aggression to which its staff were subjected. This decision may seem questionable. The difficulty with this type of situation lies precisely in the unpredictability of the attack. In this respect, the fact that access to the emergency department was open 24 hours a day is irrelevant insofar as the patient, once taken into care, may be the perpetrator of an attack, regardless of whether the employer had put in place dedicated security guards or doors closing off the treatment area, since this would not have been able to prevent the accident. This assessment by the lower courts, upheld by the High Judges, is therefore surprising insofar as there is no such thing as zero risk and no additional safety measures could have prevented the attack, as the employer had argued. This is all the more true as case law has been able to rule out inexcusable fault when the accident appears "unforeseeable" ⁽⁷⁾, which was the case here. That said, this decision must be considered carefully. Although the risk of aggression in question here is specific to hospitals, the fact remains that the problem of aggression by people outside the company also exists in other sectors, where employees have to deal with customers or users on a daily basis. We therefore recommend being particularly vigilant when attacks have already occurred, or in tense situations, in order to take all the necessary measures to ensure that employees' safety is effectively guaranteed, and thus avoid a conviction for inexcusable misconduct, which could have serious consequences. ¹Cass. soc. 28 February 2002, no. 00-13.172, no. 99-18.389, no. 99-17.201 FP - P + B + R + I;Cass. ass. plén. 24 June 2005, no. 03-30.038;Cass. 2e civ. 8 October 2020 no. 18-25.021 FS-PBI and 18-26.677 FS-PBI ²Cass. 2e civ. 8 July 2004 n°1233 FS-PBRI : RJS 10/04 n°1092; Cass. 2e civ. 5 July 2005 n°1029 F-D : RJS 10/05 n°1039 ³Cass. soc., 28 February 2002, no. 99-17.221 ⁴Cass. soc., 7 February 1962, no. 61-10.139: Bull. civ. IV, no. 158 ⁵Cass. soc., 25 November 2015, no. 14-24.444 ⁶Cass. 2nd civ., 7 April 2022, no. 20-22.920 ⁷Cass. 2nd civ. 10 June 2003, no. 01-21.20