In three recent decisions, the Cour de Cassation (the French Supreme Court) recalled the principle of full compensation in personal injury claims. More specifically, the cases all ruled in favour of the claimant, while clarifying some aspects of care and assistance claims that are frequently disputed.
Care and assistance compensates the claimant’s lack of autonomy and his/her need for assistance in everyday life tasks (eating, showering, getting dressed…). It can be accomplished by a professional carer, but also by the claimant’s family members. In both cases, the hourly rate of care and assistance should be similar.
In the first case, a motorbike’s pillion passenger was injured in road traffic accident (Cour de cassation, 2nd civil chamber, 15 December 2022, no. 21-16.712). The claimant suffered from chronic pain and joint stiffness preventing her from going grocery shopping. She was therefore claiming damages for the assistance she received from her father in doing so. The Court of Appeal lessened the damages for this head of loss on the basis that the victim could shop for the groceries faster by using home delivery services. The decision was annulled by the Cour de cassation on the basis of the French principle that the claimant does not have to mitigate her losses. She was entitled to compensation for care and assistance for the entirety of the time her father was grocery shopping.
In another case, a man was injured as a result from a robbery and subsequent forced confinement (Cour de cassation, 2nd civil chamber, 19 January 2023, no. 20-20.071). The Court of Appeal excluded any compensation for temporary care and assistance ruling that it was not justified by the victim’s medical condition. However, the medical expert’s report also stated that starting on the day of the attack the victim required family assistance and was unable to live on his own. This contradiction led the Cour de cassation to partially strike down the decision on the basis of the principle of full compensation.
In the last case, a patient was amputated up to the thigh after an infection caused by medical negligence (Cour de cassation, 1st civil chamber, 8 February 2023, no. 21-24.991). She was able to recover her losses in full from the French office for compensation of medical accident, iatrogenic disorders and nosocomial infection (ONIAM). The Court of Appeal refused to grant damages for care and assistance while the victim was hospitalised. The judges assumed that the hospital directly provided assistance and a high level of safety. However, the Court de cassation dismissed this reasoning on the basis that care and assistance compensates the victim’s loss of autonomy in everyday life tasks, and not merely assistance for her vital needs. This decision is a welcome confirmation that care and assistance provided by family members during the victim’s hospitalisation is recoverable as a matter of principle, despite the opinion of some medical experts who still refuse to accept it.
These decisions apply the principle of full compensation of losses resulting from care and assistance. This head of loss should be precisely characterised by claimants in order to obtain full compensation for any type of assistance received from family members or third-parties – including assistance during the hospitalisation period.
This article was written by our new legal intern, Laure Ekani.
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