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 (c) when two cars collide and it cannot be established 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 x% disability. Theoretically one only has to multiply the medical x% by Ffry to reach a 'scientific' result. Thus the values of x and y 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 x 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% 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- Loss of one leg — 30% Spleenectomy — 5%.

£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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