The Gazette 1985

APRIL 1985

GAZETTE

to claim. It is essential that a proper record of the medical case is kept and medical certificates given at intervals by the usual doctor for future reference. However, a report by an English general practitioner is not directly understandable by French courts or insurance companies. When there is not other way, they will submit foreign reports to their own experts to get a translation into their usual terms of reference. At some stage, therefore, the victim must be examined by a doctor who knows how the French system works which may be either: (a) the insurer's expert; (b) the court expert; (c) the victim's expert. It is a good idea for the victim to be examined soon after the accident by a private French expert who will make a preliminary report. This will help in obtaining useful evidence for later use, and give a forecast of the case from a forensic angle. As a practical rule, the victim's expert's opinion will be accepted when the victim of a minor injury lives outside France, if only to save on travelling costs. But this expert must use the right technique to satisfy the other side. It is also very useful to get expert advice on the medical assessment of damages, your medical expert being in a position to discuss the matter with the insurer's expert. Insurers' experts always attend court experts' medical investigations. It is therefore important that there is a counterpart on the victim's side. At this level, a discussion will often start between the avocat and insurance company and settlement frequently follows. However, if no solution can be found, the case will have to go to court. French Courts Penal Courts In a nutshell: (a) car accidents are dealt with locally; (b) if the driver who caused the accident committed a penal offence he/she can be sued in penal courts: (1) when the victim is unable to work for more than (2) under the three-month period the case goes to the Tribunal de Police (one judge sitting), the max imum penalty being two mon t h s' imprisonment. Penal procedure is totally different from the English one, since: (a) the victim is allowed to be a party in the penal case (called partie civile), not on the penalty but on the guilt element; (b) if the accused is declared guilty, the criminal court assesses damages in favour of the victim (and in favour of the Sécurité Sociale for medical expenses and other benefits); (c) the victim can also sue the accused's insurers in the criminal court; and (d) furthermore, if the judge finds that there was no three months the case goes to the Tribunal Correctionnel (three judges sitting), which can pass sentences of up to two years' imprisonment in driving cases;

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criminal offence, he can still pass judgment for damages against the acquitted party on the sole civil grounds of art 1384, Civil Code (no fault liability). Civil Courts The claim can be brought in civil courts. Whether there is an offence or not, the Tribunal de Grande Instance one or three judges sitting) deals with petitions over FFr 20,000, or where the amount of the damage is not liquidated in the petition, as in most physical injuries cases. Smaller accidents (petition under FFr 20,000) are heard in the Tribunal d'Instance (one judge). Provisional Claim The President of the Tribunal may grant provisional orders ( ordonnance de référé) to appoint experts and as to provisional payments to the victim 'when liability cannot be seriously challenged'. With the police report or other evidence of facts, one 107