Month: April 2022

Cass. ch. mixte, March 25, 2022, n°20-17.072

Cass. ch. mixte, March 25, 2022, n°20-15.624

On March 25, 2022, two important decisions were rendered by the mixed chamber of the Court of Cassation concerning the compensation of victims of assault, attack or personal injury.

With these two rulings, the Court of Cassation confirmed the autonomy of two types of head of loss: (1) the damage of “anguish of imminent death” suffered by the direct victim and (2) the damage of “waiting and worry” suffered by the victim’s relatives.

These two heads of loss are not included in the Dintilhac nomenclature, which offer a classification of recoverable heads of loss in personal injury cases.

While it is established by case-law that this nomenclature is not limitative, the emergence of newhead of loss has been the subject of uncertainty and divergence between Courts.

In that respect, the imminent death anxiety of the direct victim as well as the worry suffered by the relatives have been the subject of numerous debates.

The two recent decisions rendered by the mixed chamber of the Court of Cassation are therefore benefic; they aim to unify the case-law by establishing the existence of two heads of loss and by defining their conditions.

The anxiety of imminent death is a distinct head of loss from the pain and suffering

French law permit to the heirs of a deceased victim to claim compensation for the damages suffered by the deceased and resulting from the cause of death (whether an accident or a crime).

Also, some claimants have attempted in the past to seek compensation for the specific harm of the anguish felt by the victim, who, in view of the seriousness of his or her injuries, becomes aware of the imminence of his or her own death.

A debate took place between the different chambers of the Court of Cassation: on the one hand, the 2^e civil chamber considered that the anguish of imminent death was necessarily compensated via the pain and suffering head of loss, aiming to compensate the victim for temporary physical and moral pain (Cass. 2nd civ, June 29, 2017, n° 16-17.228). The criminal chamber, on the other hand, considered that the anguish of imminent death should be compensated as separate head of claim (Cass. crim, 15 October 2013, n° 12-83.055). Finally, the 1^ère civil chamber had considered that the damage of imminent death anxiety could only be compensated separately if it had been excluded from the pain and suffering head of loss (Cass. 1st civ., 26 September 2019, n° 18-20.924).

The mixed chamber agreed with the position of the criminal chamber, unequivocally establishing the autonomy of the anguish of imminent death head of loss.

In this case, the victim of a stabbing was taken to hospital and died a few hours later. The Fonds de garantie des victimes des actes de terrorisme et d’autres infractions (FGTI) (Guarantee Fund for Victims of Terrorism and Other Crimes) complained that the Court of Appeal had upheld the claim for compensation for the loss of imminent death anxiety made by the victim’s heirs.

The Court of Cassation reminded the factual analysis carried out by the previous judges and implicitly recalled the conditions previously identified by case law to characterize such harm, namely (i) the occurrence of anguish subsequent to the event that caused the injuries and (ii) the victim’s state of consciousness (Cass. crim, May 14, 2019, No. 18-85.616).

The Court then clearly stated that “without compensating the same loss twice, the Court of Appeal allowed the claims for this specific loss ” and dismissed the appeal.

The autonomy of the damage of anguish of imminent death is thus confirmed by this decision of the mixed chamber.

Nevertheless, if the debate concerning the existence and autonomy of this head of loss seems to have been settled, uncertainties sustain regarding its conditions. For example, the question of the existence of such a damage in the event of the victim’s survival remains unresolved.

The prejudice of waiting and worry of the relatives is distinct from the bereavement harm (“prejudice d’affection”)

The second decision of the mixed chamber also enshrines the autonomy of another head of loss, and this time carefully define the conditions for it.

This “waiting and worrying” head of loss aims to compensate for the specific anguish suffered by the relatives of a direct victim who learns that the latter is or has been exposed to a danger or peril. It especially concerns the relatives of victims of terrorist attacks or collective disasters such as air disasters.

In this case, the daughter and grandchildren of a victim who died in the Nice attacks claimed compensation for their loss of waiting and worry. They emphasized that they had had no news of the victim for several days and had conducted numerous searches in hospitals, ignoring whether she was alive, injured or dead. The Paris Court of Appeal granted this request in a decision dated January 30, 2020 (CA Paris Pôle 2, chamber 4, January 30, 2020 – n° 19/02479).

The FGTI then appealed to the Court of Cassation, arguing that this loss was already included in the beravement, intended to compensate for the mental suffering experienced by the victim’s relatives.

The Court of Cassation adopts a step-by-step reasoning and begins by stating that: “The relatives of a person, who learn that this person is or has been exposed, on the occasion of an event, individual or collective, to a danger likely to affect his or her bodily integrity, feel concern linked to the sudden discovery of this danger and the uncertainty weighing on his or her fate.

The Court continues by considering that: “The suffering, which occurs prior to the knowledge of the actual situation of the person exposed to the peril and which arises from the expectation and uncertainty, is in itself constitutive of a prejudice directly linked to the contemporary circumstances of the event. “This damage, which occurs between the discovery of the event by the relatives and their knowledge of its outcome for the person exposed to the peril, is, by its nature and intensity, a specific damage which gives rise to a right to compensation when the direct victim has suffered serious injury or died as a result of this event.

Finally, the Court concludes as follows: “It follows from the foregoing that the loss of expectation and anxiety suffered by the indirect victims cannot be confused, as the Court of Appeal correctly held, with the bereavement harm, and is not related to any other head of loss compensating these victims, but constitutes a specific loss that is compensated independently. It follows that the Court of Appeal did not compensate the same loss twice, but allowed the claims for this specific loss of expectation and anxiety.

 The Court of Cassation has thus consecrated the autonomy of the waiting and worry damage of indirect victims, and defined its conditions, namely :

• An individual or collective event, a peril of a nature to harm the physical integrity: the mention of the “individual” allows to extend the scope of application of this head of loss and is not limited to collective disasters or terrorist attacks;
• A suffering occurring between the knowledge of the event and the knowledge of the real situation of the direct victim: this is a temporal criterion;
• A “serious injury” or death suffered by the direct victim as a result of the event.

This last criterion of “seriousness” may raise questions. On the one hand, it excludes compensation if the direct victim emerges from the event unscathed. The Court of Cassation thus seems to consider that the relief felt afterwards by the relatives would outweigh this damage of waiting and the resulting anguish. On the other hand, we can regret the highly subjective criteria of “seriousness of the injury” in case of survival of the direct victim, which risks giving rise to divergent interpretations according to the different jurisdictions.

In conclusion, these two decisions of the mixed chamber illustrate the evolving nature of compensation for personal injury and the need to delimit new heads of claim. More broadly, they are part of a search for a balance between the autonomy of certain general damages to allow for better compensation and the risk of “splitting” losses and allowing double compensation.

Cass. 2^ème civ, February 10, 2022

The consolidation date, corresponding to the date of stabilization of the victim’s condition, is a key notion in personal injury compensation. It permits to distinguish temporary and permanent damages and is also considered as the starting point of the limitation period to bring a claim for compensation.

If the consolidation date, as a medical concept, is in practice set by a medical expert, what happens in the absence of such a determination?

On February 10, 2022, the second chamber of the Court of Cassation made an interesting decision which reaffirm the discretionary power of the judge to determine the date of consolidation and which impact on the statute of time limitation.

In this case, the claimant was victim of a traffic accident at the age of 3, in 1985. A previous decision had ruled on compensation for his injuries in 1994. Several years later, a new medical assessment was ordered by the judge. The expert submitted his report on May 15, 2002.

The particularity of this case lies in the fact that the determination of the date of consolidation was not part of the missions entrusted to the expert, who had therefore not expressly deal with this issue.

On May 18, 2015, the victim, who was placed under guardianship, sued the insurer of the vehicle and the driver and claimed additional compensation. The Court of Appeal ruled that the claim was time-barred, considering that more than ten years had elapsed between the filing of the judicial expert report and the initiation of the legal proceeding.

The victim appealed to the French Supreme Court and criticized the previous decision for having judged that his claim was time-barred, although the medical expert’s report did not indicate a date of consolidation. He claimed that the time-limitation delay could only begin to run once its starting point had been notified and acknowledged by the victim, and that, failing this, no time-limitation could be invoked against him.

The Court of Cassation, after recalling that the legal claim for compensation of a personal injury is prescribed by 10 years from the consolidation date, referred to the reasoning adopted by the Court of Appeal.

The latter had indeed noted that the expert’s report mentioned that “the victim’s sequala condition was not likely to evolve favorably after the date of the expert’s examination and that it does not appear that this condition has worsened since then“. The Court thus concluded that these findings of the expert allowed the victim to understand that the consolidation had been achieved and set the starting point of the prescription period at the date of notification of the expert report, (namely May 15, 2002).

The Court of Cassation referred to the sovereign discretion of the trial judges and dismissed the appeal.

This reaffirmation of the discretionary power of appreciation of the judge and of the freedom he/she has regarding the medical expert report is always appreciable. This principle has been established by case law (for example: Cass. 2^ème civ, September 17, 2009 – n° 08-15.113). The judge is in no way bound by the opinion of the medical expert and remains free to rely on his/her own assessment.

In line with this discretionary and casuistic approach to the dispute submitted to it, the solution of the Court of Appeal, validated by the Court of Cassation, fixing the starting point of the limitation period at the date of filing of the report, seems rather pragmatic.

In this case, the opposite solution would have had the effect of indefinitely delaying the starting point of the limitation period, or even leaving it to the goodwill of the victim, who neglected to have recourse to medical expertise to determine the date of consolidation.

While the relatively long ten-year statute of limitations is primarily intended to protect the victim and facilitate compensation, the victim shall remain careful and proactive.

Law No. 2022-401 of March 21, 2022, known as the “Waserman” law, transposes the European directive of October 23, 2019 and strengthens the protective status of whistleblowers.

It modifies the definition of whistleblower, which is now as follows: “a natural person who reports or discloses, without direct financial compensation and in good faith, information concerning a crime, an offence, a threat or harm to the general interest, a violation or an attempt to conceal a violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organization taken on the basis of such a commitment, of the law of the European Union, or of a law or regulation”.

This third post presents the contributions of the Waserman law, presenting the new elements that characterize the status of whistleblower:

Concerning the author of the alert, the reform extends the conditions for receiving the quality of whistleblower:

• Only a natural person can now be a whistleblower, which excludes legal entities such as associations for example;
• The whistleblower must not receive any “direct financial compensation“. This clarification precise the former provisions which stipulated that the whistleblower must be, more generally, “disinterested“;
• The condition relating to personal knowledge of the information revealed is removed, the whistleblower can disclose information that has been reported to him in the professional environment;
• Finally, the whistleblower’s entourage can benefit from protection. These are, on the one hand, the “facilitators”, i.e. the natural or legal persons of private non-profit law who provide assistance to the whistleblower; and on the other hand, any natural or legal person having a professional link with the whistleblower.

As regards the information revealed, the scope is extended to attempts to conceal a violation of an international commitment and to the violation of European Union law. The “serious and manifest” nature of the violation is no longer a condition. The classic exclusions of national defence secrecy, medical secrecy and lawyer-client secrecy are enriched with the secrecy of judicial deliberations, the secrecy of the investigation and of the judicial inquiry.

Regarding the proceeding of the alert, the hierarchy of reporting channels is simplified:

• First, the whistleblower can choose between the internal channel (the company or administration in which he or she works), and the external channel (the administrative or judicial authority, the professional order). The external channel must acknowledge receipt of the alert within seven days. A forthcoming decree will impose a three-month response period for whistleblowers and will specify the list of authorities competent to receive and process alerts;
• Then, public disclosure may occur if the alert is not processed by the external channel within the above-mentioned time limit, if there is a risk of retaliation, if there is a “serious and imminent danger“, or if there is an “imminent or obvious danger to the general interest” for information obtained in a professional environment.

Concerning the effects of whistleblowing, the reform strengthens the protection granted to whistleblowers:

• The whistleblower enjoys both civil and criminal immunity;
• Any person who attempts to prevent the reporting of a whistleblower is liable to a civil fine of 60,000 euros. In the event of legal proceedings for retaliation against the whistleblower or an attempt to thwart his or her reporting, the judge may grant the whistleblower an advance on legal costs depending on the respective economic situation of the parties and the foreseeable cost of the proceedings, or an advance to cover his or her subsistence when his or her financial situation has “seriously deteriorated” as a result of the reporting;
• The whistleblower can also benefit from psychological and financial support measures from external authorities.

The Waserman law will come into force on September 1, 2022, it being recalled that some of its provisions are subject to the subsequent publication of an implementing decree. We can already anticipate that this new framework for the status of whistleblower has multiple consequences in criminal law, which will be the subject of a 4th and final news post.