UK: Damages Under French Law - The Latest Position

Last Updated: 12 August 2009
Article by Kieran Mitchell

The application of EC Regulation 864/2007, otherwise known as Rome II, has once again moved the goalposts for those who have the misfortune of suffering accidents abroad and wish to pursue a claim in this jurisdiction. In a nutshell, Rome II provides that the quantification and assessment of damages ordinarily falls to be determined by the law of the country where the accident takes place. In the majority of such cases it is therefore now necessary to produce evidence from foreign lawyers so the English judge understands how the claim should be quantified according to the applicable foreign law.

Despite the application of Rome II, in many cases it will still be beneficial for English claimants to bring their case before their home courts. Not only will it be logistically more convenient, in terms of attending medical assessments for example, there will be the added benefit of being able to recover legal costs upon the successful conclusion of the claim. As English lawyers, we will need to work even closer with our European colleagues so that we remain alert to any changes to relevant local laws to ensure that our clients' best interests are served at all times.

We receive a significant number of instructions regarding accidents in France and this is a particular area of specialism for me as a French speaker. In light of the recent changes, this article therefore outlines how claims will be quantified in accordance with French law, by way of comparison with English damages.

Historically, the level of damages awarded in France has been considered by many English claimants to be rather less than generous. However, in recent years, the situation there has changed. Whilst damages awards are still generally lower than one might expect to receive in this country, they have, on the whole, increased. This is primarily as a result of the Dintilhac reforms, which followed a judicial review of the available heads of damage in France and how those heads should be quantified.

Much like in England, awards tend to be divided into pecuniary and non-pecuniary damages. The latter can only be quantified following input from a medico-legal expert who will be specifically trained for this purpose. Unlike England, however, there is less reliance upon lawyers having to interpret the report and then finding relevant case law to assist with quantification. The medical report will conclude by providing various points and percentages under various headings and they can then be cross-referenced with tables produced by the courts in each region to provide a range of available damages. The headings for non-pecuniary damages generally include:

Temporary functional deficit – this is the period following the accident during which the claimant's activities of daily living are most affected and is documented as a period between two dates. It is generally accepted that lost earnings are recoverable throughout this period. In addition, an award of around €20 per day is allowed to reflect the pain endured throughout this period. This can also be broken down into percentages to reflect the reducing level of incapacity as recovery is achieved.

Pain and suffering endured – this is as it says. It is assessed on a scale between 0 and 7, with 7 being the worst pain one could possibly imagine.

Temporary disfigurement – this is awarded to reflect any physical alteration in appearance occurring prior to the date that the injuries consolidate. It is again assessed on a scale between 0 and 7.

Permanent functional deficit – this is assessed as a percentage and provides an indication of the claimant's permanent incapacity as a result of the accident.

Loss of amenity – this is assessed on a scale between 0 and 7 and reflects the extent to which the ongoing symptoms affect the claimants ability to partake in leisure activities, sports etc. The age and lifestyle of the claimant are usually taken into account when assessing this head of claim.

Permanent disfigurement – this is again assessed on a scale of 0 to 7 and reflects any alteration in physical appearance which is unlikely to improve, such as scarring or a permanent limp.

Sexual prejudice – this is assessed on a scale between 0 and 7 and reflects the extent to which the injuries have affected the claimant's sex life, including decreased libido, impotence and fertility.

In addition to the above, there are various recognised heads of damage for economic loss. It is important to bear in mind that French insurers, and indeed French courts, are usually meticulous when it comes to supporting documentary evidence. It is essential that any claimant is advised of this at the outset of their claim to ensure that they retain any relevant papers. The available heads of damage for economic loss generally include:

Medical expenses – including treatment and pharmaceutical expenses ordinarily covered by social welfare agencies (such as the NHS). Such costs to be reimbursed to the payer.

Miscellaneous expenses – including various out of pocket expenses such as public and private transport costs, damaged clothing, telephone calls etc.

Actual lost earnings – these are recoverable up to the date of consolidation, which will be determined by the medico-legal expert and usually follows the end of the last period of temporary functional deficit. An employer also has a direct action against the responsible party for any sums paid to an employee during their absence.

Future medical expenses – these are payable provided they are supported by both documentary evidence illustrating the potential cost and medical evidence confirming the necessity. They include replacing items such as wheelchairs and prosthetics for example.

Future housing/adapted vehicle – if the injuries are sufficiently severe that the claimant would require their home or vehicle to be modified then such costs are recoverable, but must be assessed by an expert in this field.

Help from a third party – any care and assistance which is deemed to be required is payable at a rate of between €15 and €18 per hour, depending on the qualification of the person providing the care. This is recoverable even if the care is provided gratuitously by a family member. For claimants requiring care into the future, this can be paid either as a lump sum, discounted to reflect capitalisation, or as an ongoing annuity.

Loss of future earnings – this is to reflect the difference between a claimant's earnings prior to the accident and those after. It also includes any loss of pension due to reduced contributions. The sum will usually be discounted to take into account capitalisation.

Loss of opportunity on the open labour market – if a claimant is unable to seek similar alternative employment as a result of the injuries sustained, then an award may be made to reflect this.

Educational prejudice – if a claimant achieves grades lower than would otherwise have been the case as a result of the accident, this can be compensated by between €3,500 and €10,000 depending upon the level of the qualification and the overall consequences of the loss. If an accident causes a student to retake a year then compensation is paid for that year at between 50% and 100% of the French minimum wage.

In summary, whilst it is not ideal for an English claimant to have their claim assessed by French law, it is clear from the above that reasonable compensation is available where genuine loss has been suffered. It remains to be seen quite how English courts will actually assess these claims in practice, but we will keep abreast of developments and provide a further update in due course.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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