The Gazette 1985

GAZETTE

APRIL 1985

used in evidence in favour of the case of that party

(although it can be used against him or her).

However, judges are inclined to give some weight to

favourable statements contained in the

constat

amiable

or other statements sent to a party's own

insurers immediately after the accident.

As an affidavit cannot be cross-examined, the

French judges can either summon the deponents to

appear or, more frequently, appoint a technical

expert who will hear parties and witnesses, go on

location, carry out investigations, etc. The expert

may raise queries arising from the affidavits. Unlike

their English counterparts, French

avocats

are

expected not to meet witnesses to discuss the case.

Liability

As a rule French law will apply to an accident in

France. However, English law would apply to an accident

in France between one or more English cars, provided no

non-English element is involved (Hague Convention, 4

May 1971).

French law in this field is remarkably complicated,

confused and still changing. To keep it to a basic outline

the situation is as follows. One can either:

(a) prove an infringement of law (civil or penal), in

which case liability can be based on this infringe-

ment (art 1382-1383, Civil Code); or

(b) prove that a 'thing' (here a car) caused somebody a

'harm' (physical or otherwise) in which case, the

owner or driver is liable (art 1384, Civil Code).

Under a recent case decided by the Supreme Court the

owner or driver is totally liable in any circumstances

(Desmares,

22 July 1982), unless he proves that the

victim's actions or mistakes amounted to '

force majeure'

(they need to be totally unforeseeable and unavoidable to

meet the test). The point is still very controversial and

many lower courts will still apportion the liability in cases

of proven mistakes by the victim.

The solicitor must bear in mind that French civil law is

very favourable to victims, e.g.:

(a) when there is no evidence as to facts the victim

must be indemnified;

(b) the passenger of a car can as a rule be fully

indemnified; and

which had right of way, each party is indemnified by

the other's insurers.

For different reasons, there is also a strict liability rule

on transporters by land: train, coach and taxi operators

must indemnify the victim of an accident unless they

prove his or her mistake.

Quantum of Damages

Although this should really be considered after the next

question, 'How to get it?', clients always want to know

this first. This necessitates a medical examination, then a

financial evaluation of the consequences.

Medical Appraisal

In France there are no set tariffs from which one can

work, to say, e.g., that one arm equals FFrx. Figures

vary with time and between courts, so it is only possible to

give a very rough outline.

Non-Fatal Accidents

As judges have no medical qualification they need

expert advice and will have the victim examined by a

medical expert from an official list. Unlike in England

where the expert only describes the medical situation and

its practical consequences, French experts will almost

always use a quantifying approach, not in terms of cash,

but in terms of

disability. Theoretically one only has

to multiply the medical

by Ffry to reach a 'scientific'

result. Thus the values of

and

are very subjective. In

practice, however, even if there is no 'official scale' there is

a large practical corpus shared by judges, insurers,

medical experts and lawyers.

To understand a French medical expert's report — or a

court judgment — one must know the basic technical

categories into which the damage is split.

Temporary disability (

Incapacité Temporaire

Totale.or

ITT)

Basically, if you are in hospital for

days you lose your

earnings. This brings few problems except for

unemployed, self-employed, etc.

Employers may eventually claim, if they keep paying

wages to the disabled employee.

Examples

Multiple bruises — 1 to 2 weeks.

Fractured arm — 2 to 4 months.

Permanent disability (

Incapacité Permanente Partielle, or

IPP)

This is also called 'physiological deficiency'. Once the

disability cannot improve it is deemed 'permanent'.

The medical expert will value this disability in terms of

1 to 100%. Although this system might look logical and

accurate, this is a false impression. It is much more based

on practice and experience than on any sort of scientific

assessment.

Examples

Medical experts usually reach the following figures:

Total hemiplegia (Paralysis of one side of the

body)— 85%

Loss of sight — 75%

Loss of one eye — 25 to 30%

Loss of right hand — 50%

Loss of one leg — 30%

Spleenectomy — 5%.

The 'IPP' percentage can only be assessed when the

medical situation cannot alter. Under French law, the

victim can always ask for a further indemnity if his

condition worsens, but if the victim gets better, the

insurance company will not be entitled to a refund. The

date of stability is called the '

date de consolidation'.

The value of 1% is not identical along the 1% to 100%

scale, and varies greatly if it is a part of a total of 1.5%

(usually £50-£250) or a part of 15-20% (usually £100-

£500) or of a higher percentage.

Courts will take into account:

(a) age of victim;

(b) loss of earning capacity; and

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