Damage resulting from the anguish of imminent death of the direct victim and damage resulting from the “waiting and worry” of the indirect victims: an autonomy of these heads of loss consecrated by the French Court of Cassation
29 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 2e 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 1ère 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.