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Compensable damages

Lawyer for compensation for bodily injury in Marseille

The bodily injury suffered by an injured victim or the family of a deceased victim constitutes an organic whole.

However, an attempt was made to split the overall damage in order to better define its outlines.

Each of the components is called a “loss position”, and each of these loss items will be compensated independently. This splitting up of the bodily injury suffered by a victim can be of considerable practical benefit to the victim. It could, for example, be compensated initially for certain items of damage already defined, and reserve compensation for other items that are still uncertain.

For example, a young victim for whom we do not have enough information to be able to assess the extent of the occupational impact of the accident suffered.

So what are the items of compensable damage in the presence of bodily injury?

Without claiming to be exhaustive here, since some prejudices will necessarily remain unclassifiable, it is appropriate to indicate the main areas of prejudice encountered. We use here the categorization resulting from the so-called “Dintilhac” nomenclature.

Injured victim: positions of injury

In the event of injuries, the various items of injury to a victim are classified into two categories: property damage and extra-property damage.

Among these two categories, it is customary to further distinguish those of so-called “temporary” damage and those considered permanent.

In reality, only the division between pecuniary and non-pecuniary damage is of practical interest, insofar as it makes it possible to distinguish the items of damage on which recourse may be exercised by a social body or third party payer, from those for which no recourse. is not allowed. Third party payers are in principle only allowed to exercise their recourse on so-called pecuniary damage.

An exception to this principle exists, however, concerning the permanent functional deficit.

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PROPERTY DAMAGE

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Current health expenditure (DSA)

Paramedical medical fees (osteopath, psychotherapy, speech therapy, orthopedics) and hospital fees payable by the victim

It is in this capacity that the expenses incurred by the victim before the consolidation to acquire the technical aids necessary to alleviate a handicap situation (wheelchair, medical bed, etc.) are compensated for.

The health insurance organizations will exercise their recourse for the part covered against the responsible third party.

Loss of current professional earnings (PGPA)

The aim here is to compensate for the loss of earnings actually suffered by the victim during the sick leave, and until the lesions have consolidated. The valuation of this loss item implies that we know the various daily allowance payments that have been made to the victim, and which will in principle be deducted from the total compensation.

This item of damage will then be shared between a part going to the social security body, and a part going to the victim.

Miscellaneous expenses (FD)

Transport costs incurred to ensure the follow-up of care

Expenses incurred by a trader or a craftsman to ensure his replacement during his work stoppage.

Assistance by a third party before / after consolidation (ATP)

This involves compensating the cost necessary for hiring a person responsible for providing human assistance temporarily (before consolidation) or on a long-term basis (after consolidation) to a victim who is unable to do it alone. all or part of the acts of everyday life.

One of the major issues in the practice of personal injury law is the compensation for this loss item.

Its importance is of capital importance for the victim, who too often tends to underestimate the extent of his lack of autonomy, which is compensated quite naturally by those around him, for a certain time.

This situation of family assistance should not, however, be taken into consideration either for determining human aid needs (number of hours per week or per day), or for determining the hourly basis for compensation.

Proceeding otherwise constitutes a risk of the victim’s financial situation becoming more precarious, since the evolution of the victim’s personal situation (a minor who leaves the parental home, for example) will not necessarily allow him to have his rights reopened. in aggravation against the responsible third party.

Loss of future professional earnings (PGPF)

When the after-effects of an accident leave the victim unable to work or with a reduction in his ability to generate income, the victim must obviously be able to be compensated for all the income thus lost until the end of his career supposed.

As with the PGPA, we must take into account any social security benefits provided and to be paid to the victim, which will therefore be deducted from the compensation owed by the third party payer.

The claim from third-party payers consisting of a disability pension or an accident at work pension (AT pension) will be deducted primarily from this loss item.

Professional impact (PI)

By professional incidence, we designate “the peripheral effects of damage affecting the professional sphere”, such as devaluation on the labor market, increased difficulty in providing work, loss of opportunity to obtain a promotion, costs professional reclassification, etc.

The remainder of the claim from third-party payers consisting of disability benefits or the work-related accident pension will be charged to this loss item, if the amount of this claim is greater than the assessment of the PGPF.

Future health expenditure (DSF)

All expenses relating to care (medical, speech therapy, orthopedics, etc.) or the purchase of consumable products or technical aids (diapers, mattress pads, wheelchair, medical bed, etc.), provided that these expenses must be renewed in time.

The assessment of this loss item is impacted by the recourse of third-party payers, as long as they can justify the share of these expenses that they will bear in the future.

Compensation for this loss item is generally made by granting a capital made up of the product of all annual expenses incurred and the euro life annuity, assessed on the date of the liquidation of the prejudice.

This euro life annuity is set with reference to a capitalization scale. The choice of this funding scale is a very important issue for the victim, especially if they are young at the time when the compensation takes place.

Adapted housing costs

The recognition of this position of damage constitutes one of the main advances of recent years in the practice of Personal Injury Law.

It has not always been taken for granted that those responsible for damage leaving a severely disabled victim should compensate the costs of fitting out accommodation that is unsuitable for the disabled situation. Or even compensate for the costs of moving to more suitable accommodation, and especially the purchase or rental of such accommodation.

Now anchored in the Dintilhac nomenclature, this loss item is no longer discussed by insurers, at least in principle.

The assessment of this injury item can represent a significant stake in the context of the management of a significant bodily injury case, and may justify a specific expert report produced by an occupational therapist or by an architect (home automation expertise)

Adapted vehicle costs

This item of damage may include the costs of fitting out the vehicle necessary to resume driving: fitting an automatic gearbox, a ball on the steering wheel, controls on the steering wheel, etc.

For the most severe handicaps, which do not allow the victim to consider driving a car, compensation will be paid for the purchase of a wheelchair loading system, and other devices to enable the person to be transported.

The additional cost of purchasing a vehicle with a large loading capacity compared to a medium-sized vehicle can also be compensated. And this, in order to take into account the need for the victim to acquire this type of vehicle, in order to ensure his transport and that of the technical aids necessary for his travels.

Finally, the cost of the specific training required to maintain a driving license despite the disability constitutes a compensable loss.

School, university or training damage

Under this term, repetition or loss of years of schooling directly related to the injuries sustained is compensated. But also the cost of support courses provided to allow the victim to continue or resume their education prior to the accident.

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EXTRA-PATRIMONIAL DAMAGES

Temporary functional impairment

This loss item aims to compensate for the loss of quality of life and the deprivation of the usual joys of existence during the period between the accident and the consolidation of the injuries.

Its assessment takes into account the duration of the total temporary incapacity (hospitalization, for example), but also the duration of care received until consolidation.

The assessment can also take into account the seriousness of the injuries and the socio-professional situation of the victim on the day of the accident.

Suffering endured (or pretium doloris)

This item covers all the suffering, both physical and moral, endured by the victim as a result of the injuries suffered, but also the treatments, interventions and hospitalizations that have taken place until consolidation.

The evaluation of this position is still too often done today by referring to a pain rating given by the Expert, on a scale of 0 to 7.

However, it is necessary to have participated in numerous medical expertises to realize that this rating is based on an approximate evaluation, based almost exclusively on objective data (number of surgeries, length of hospitalization, etc.)

In addition, perhaps more than the other items of damage, this component of the bodily injury suffered must be compensated according to the subjective feelings for the victim.

Obviously, each victim reacts differently to a physical trauma, and it is necessary to be able to adapt the reparation of the suffering endured according to the feelings.

Temporary aesthetic damage

This injury item aims to repair damage to physical appearance or conditions that alter the ability to interact with others (example: impairment of language functions), but which would have been resolved during consolidation.

We are targeting extreme cases here, such as severe burns and facial scars which will not be operated on until several months after the accident. But also more frequent cases, such as having to wear a corset or use a wheelchair for some time after the accident.

Permanent functional deficit

This is to compensate for the loss of quality of life, suffering and disturbances in living conditions, all suffered by the victim after the lesions have healed.

Its assessment takes into account the nature and seriousness of the after-effects, the objective impact of these after-effects on the conduct of the usual leisure activities (objective component of the leisure damage), but also the age of the victim. on the day of consolidation of the lesions.

Loss of approval

This position aims to repair the inability or reduced ability to practice a specific sport or leisure activity, which the victim regularly engaged in before the accident. Apart from this permanent deprivation or reduction, there may be a temporary loss of pleasure, provided that the temporary impossibility of practicing such activity before consolidation can be demonstrated.

Permanent aesthetic damage

This item aims to compensate any aesthetic damage suffered by the victim, after the consolidation of his lesions. While the medical scales used by experts (scale from 0 to 7) generally refer only to skin scars, this item of damage is intended to repair any damage likely to expose a handicap or the gaze of third parties.

Thus, one should in particular take into account lameness, the use of a wheelchair and cognitive or mental sequelae.

Sexual harm

The point here is to repair the harm linked to the inability to have normal sexuality, or to procreate. The assessment that will be made generally takes into account the age and situation of the victim.

The characterization of such an injury item should give rise to compensation for sexual injury suffered by the spouse, if applicable.

Establishment damage

It aims to compensate for the loss of hope and chance to realize a family life project due to the victim’s disability. Its assessment is personalized, and in particular according to the age of the victim.

Deceased victim: positions of injury

Just like the damage resulting from the injuries sustained by a victim surviving an accident, the damage constituted in the event of the victim's death is considered under different aspects - called “damage items”.

The assessment of some of these loss items is likely to be affected by the recourse exercised by one or more third-party payers.

It is necessary here to dissociate the rights available to the direct victim of the accident during his lifetime (if he survived his injuries for a time, before dying), from the damages suffered by his beneficiaries, referred to here as victims by ricochet.

The main items of loss in the event of
death encountered in practice are as follows:

Funeral expenses

This is to compensate the funeral costs incurred following the death of the direct victim. No account is taken here of the age of the deceased victim, since it is the accident that causes the death, notwithstanding a possibly already fragile state of health.

This loss item may include the recourse of a third-party payer justified by the payment of a death benefit.

Affection damage

This is about trying to compensate for the moral suffering caused by the loss of a loved one. Perhaps more than any other line of harm, converting this suffering into financial compensation makes little sense.

It really constitutes a default solution, as the Law does not conceive of any other possible remedy here.

This default compensation is too often presented by insurers as being subject to scales, while by definition, the moral pain associated with the deprivation of a loved one is an eminently subjective datum, that is to say associated with the person who suffers.

Economic damage (loss of family income)

This refers to the deprivation for the family of a deceased victim of material and financial support for the deceased.
The assessment of this loss item is very often a major issue in the event of accidental death.

While the principle of such damage is well accepted by insurers and judges, its assessment is based on a technical calculation using several parameters, which need to be argued and documented.

Among the questions that its evaluation raises, one regularly meets the determination of the reference income, the part of self-consumption attributed to the deceased victim, the income of the surviving spouse to be retained, the fate of the damages temporarily attributed to the children once the end of the period. this damage, the choice of the capitalization scale and the deductibility of a death benefit or an annuity paid to beneficiaries by a third party payer.

Depending on the criteria selected, the assessment of this loss item will be changed very significantly, it being specified that it is not subject to any scale or ceiling.

It should be noted that this damage can be characterized not only when the deceased victim had a paid professional activity, but also when this was not the case, but that she took care, for example, of the education and maintenance of children.

In the latter case, the death of the victim will very often leave the surviving spouse and / or their children in the obligation to have to incur childcare costs, for example. This does constitute compensable damage.

The LELIEVRE & SAINT-PIERRE victims’ law firm is at your disposal to assist you in setting up your case and to obtain compensation for your bodily injury.

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    Le Cabinet d’Avocats LELIEVRE & SAINT-PIERRE est spécialisé en droit du dommage corporel et de la responsabilité médicale

    04.91.04.04.15 contact@lsp-avocats.fr 103 Boulevard Notre-Dame 13006 Marseille