Facts
The insured person, born in 1996, works as an automotive mechatronics technician for a company and is compulsorily insured against accidents with the Swiss National Accident Insurance Fund (CNA).
During the night of 23 to 24 September 2017, at the grape harvest festival in Neuchâtel, the insured person was assaulted and suffered a craniocerebral trauma. The CNA took over the case. According to a police report of 4 October 2017, the aggressor ([C.] ) struck him twice after words were exchanged while the insured person was urinating against a wall. Friends of the aggressor and a third party were heard as witnesses.
By decision of 15 December 2017, confirmed on objection on 6 July 2018, the CNA reduced cash benefits by 50%, on the ground that the insured person had played a role in the course of events and had adopted an attitude capable of creating a concrete risk of a violent reaction from his interlocutor.
By judgment of 14 March 2019, the Public Law Division of the Cantonal Court of the Canton of Neuchâtel dismissed the insured person's appeal.
The insured person lodges an appeal in public law matters with the Federal Supreme Court and principally requests the award of full cash benefits, or in the alternative the remittal of the case to the lower authority. The CNA requests dismissal of the appeal. The cantonal authority and the Federal Office of Public Health waived submitting observations.
The dispute concerns the merits of the reduction of cash benefits for participation in a brawl or fight within the meaning of Art. 49 para. 2 AIO.
Considerations
The appeal is admissible, as it is directed against a final decision (Art. 90 FSCA) rendered in public law matters (Art. 82 et seq. FSCA) by a cantonal authority of last instance (Art. 86 para. 1 let. d FSCA), and was filed within the statutory time limit (Art. 100 FSCA). As the dispute concerns the merits of the reduction, the Federal Supreme Court is not bound by the findings of fact of the lower court (Art. 97 para. 2 and Art. 105 para. 3 FSCA).
Under Art. 49 para. 2 AIO, cash benefits are reduced by at least half in the case of a non-occupational accident occurring in particular during participation in a brawl or fight, subject to exceptions (insured person injured while taking no part in the brawl, or coming to the aid of a defenceless person). The notion of participation is broader than that of Art. 133 SCC: it suffices that the insured person enters the danger zone, in particular by taking part in a dispute, regardless of whether he actively took part in the events or committed a fault, but he must have realised or been able to realise the danger. By contrast, there is no reduction in cases of self-defence or of a reflex reaction to a physical assault without a prior dispute. Furthermore, a causal link must exist between the insured person's conduct and the harm, the insured person's attitude must constitute an essential cause of the accident, and the provocation must be of such a nature, according to the ordinary course of events, as to result in the violent reaction.
As regards evidence, the judge bases his decision on facts that have a degree of preponderant probability; there is no principle in social insurance law under which doubt benefits the insured person.
The Federal Supreme Court recalls that an item of evidence not examined by the lower authority, in this case a judgment of the Juvenile Criminal Court produced as a new offer of evidence, is not admissible (Art. 99 para. 1 FSCA). On the merits, it considers that the police report does not permit the conclusion that no one heard the insured person's reply: the aggressor indicated that the insured person had replied 'ferme ta gueule' and the witnesses described exchanges of insults. The divergences between the testimonies regarding the words spoken during the second blow strengthen their credibility, since each witness related…