Compensation for Bodily Injury in France - An Exception in Europe
In two recent rulings the French Supreme Court (Cour de Cassation) expressly stated that an injured person doesn’t have an obligation to mitigate the damages in the interest of the liable party. By reversing lower court decisions that applied the mitigation principle, the Supreme Court confirmed a precedent that the Supreme Court set in 2003.
In one case decided in 2003 in France, a road accident victim who had received compensation for an injury claimed additional compensation for his deteriorating mental health several years after the initial claim was settled.1 Speech and psychological therapy were prescribed by a neuropsychologist several times, but the claimant had declined the treatment. As a result, the Court of Appeal reduced the compensation, reasoning that the claimant was negligent in refusing the prescribed treatment and therefore partially responsible for his deteriorating health. The Supreme Court, however, decided that the claimant was under no obligation to undergo the therapy prescribed by the doctors and ruled in his favour. The liable party and his insurer were ordered to pay the full compensation, despite the fact that the treatment could have improved the claimant’s condition of health and reduced future expenses.
This precedent was affirmed in two rulings by the French Supreme Court:
A case from 2000 involved a road accident victim who sustained a medullary injury. Following the accident, he required assistance using stairs in his home. The liable party’s insurer proposed to cover the cost required to fit a bedroom downstairs or move the victim to another home with compensation for the resulting expenses.
The victim turned down the proposals, so the insurer declined to pay for the 12 hours of nursing care per day required. The Court of Appeal sided with the insurer. However, the Supreme Court quashed the lower court’s decision on grounds that the victim doesn’t have a duty to mitigate damages. It stated that the liable party pays for the needs and not for the compensation of bodily injuries, in light of the “ad integrum compensation” principle.2
A more recent Supreme Court decision from 2015 involved a patient who was the victim of a hospital-acquired infection. After refusing to take the antibiotics prescribed by the doctors to treat the infection, the victim left the hospital against their advice and did not consult any other physician. His health deteriorated, and one month later he returned to the same hospital for septicaemia resulting from the original infection. The septicaemia caused health issues for which the patient demanded compensation.
The lower court decided that the patient was only entitled to be compensated for the effects of the nosocomial infection (regularly treated), given the treatment prescribed was safe, neither involving serious nor painful implications, and not for the health problems caused by the septicaemia. In January 2015, however, the French Supreme Court decided that a victim’s refusal of medical treatment cannot, in any way, deprive him a part of his compensation, even if such a refusal has indirectly negatively affected his health.
This interpretation goes far beyond the simple respect of the physical integrity or the right for any person to his body, as a victim can refrain from any action or initiative able to reduce the economic cost of a loss.
So how does this stance of the French Supreme Court on compensation for bodily injury compare to the situation in other European countries?3
In addition to the Common Law countries, which incorporate the “duty to mitigate the damage,” the principle is also applied in the various laws of many European countries, such as Article 254 of the German Civil Code (BGB); Articles 1223, 1227 and 2056 of the Italian Civil Code; as well as laws in Portugal, Spain, Switzerland, Finland, and the Netherlands.
When a country’s legal system doesn’t formally recognize the duty of mitigation, it is applied according to the good faith principle. Some variations may appear in the application, but what emerges usually is the common idea of “reasonable measures” and more specifically in the bodily injury field, “treatments or measures that do not present any danger to health.”
The interpretation of the Supreme Court is strongly criticized by many lawyers, who feel it isn’t in line with some of the French legal principles, especially the causal link between accident and damage. However, despite attempts by the French legislative branch to amend the current situation, there remains no specific provision in the law. Based on the liability principles of the French Civil Code, nothing prevents a judge from qualifying, for example, the refusal of an injured party to undergo medical treatments as misconduct, and consequently reducing the compensation. However, in practice, case law firmly asserts a rejection of the principle of mitigating damages and systematically reaffirms that “A victim cannot be held to limit his/her damages in the interest of the liable party.” As a result, on the question of the mitigation of damages, France appears to be an exception in the legal European landscape.
- Cour de Cassation 2ème civ . 19/06/2003 (n°01-13289).
- 2 Cour de Cassation 2ème civ . 25/10/2012 (n° 11-25511.
- 3 Cour de Cassation 1ère civ . 15/01/2015 (n° 13-21180).