Law firm in Marseille specializing in victim compensation
``To compensate is to try to put the victim as much as possible in the situation they would have been in, had it not been for the accident. ``
This objective is quite understandable when it comes to reimbursing costs incurred as a result of the accident, or compensating for lost wages, but it is more difficult to determine an appropriate compensation - and especially fair - to compensate for a loss. bodily injury suffered.
And yet, assessing bodily injury means, for the lawyer, converting this injury into financial compensation. It is an answer that may be considered disappointing by many victims, but it is the best answer that the law can give to the bodily harm that the victim has suffered.
At first glance, it is very difficult to quantify bodily injury.
Indeed, it seems difficult to translate into figures the scale of the consequences of an attack on the physical integrity of a person.
How much is a cervical spine trauma "worth"?
Head trauma with loss of consciousness?
The loss of a member?
Or the fact of having become a paraplegic?
And again, can we attribute a pecuniary value to the death of a victim?
The difficulties inherent in the assessment of bodily injury are further increased by taking into account the fact that French society already provides for certain methods of repairing the injury, apart from any recourse against the responsible third party. One example is the payment of benefits in the event of sick leave by the Health Insurance. The question arises as to what impact does the payment of benefits of this type have on the assessment of the victim’s damage.
In view of these difficulties, the assessment of bodily injury has gradually established itself as a subject of law in its own right.
Recognition of this state of affairs: the National Bar Council has made it an officially recognized specialization, and the use of which is reserved only for Lawyers who have demonstrated effective practice in this field of activity and technical mastery in accordance with the expected standards.
There are therefore now lawyers specializing in personal injury law, recognized as such. This is the case with the law firm LELIEVRE & SAINT-PIERRE in Marseille.
A full assessment: all the damage
While other countries use scales to assess personal injury, the French system has consistently refused.
Thus, the general principle governing the entire bodily injury assessment regime is that of full compensation. Comprehensive repair means first that all damage must be repaired. It’s a simple idea, but it poses a number of theoretical and practical difficulties.
For example, can we leave a loss of opportunity to progress professionally unpaid just because the loss of income was compensated on the basis of the victim’s actual income on the day of the accident?
And again, how to compensate for the after-effects of a victim: for the physical after-effects, or for the suffering endured?
In order to help those involved in the compensation of bodily injury (lawyers, insurers, judges, etc.) to better define the contours of an injury, a working group was formed in 2005, chaired by Mr. Jean-Pierre DINTILHAC. The report of this working group, delivered in November 2005, is to date an essential reference tool for the assessment of bodily injury.
This report directly participated in an important legislative and jurisprudential evolution of the matter from 2006.
The main merit of the DINTILHAC report is to provide a definition of each of the most commonly encountered damage items in practice, and to classify them in order to better understand their regime. The concept of an item of damage corresponds in a way to a subset of the overall damage, intended to best define all the components of this damage.
By wanting to list and categorize the various damages that can be compensated, we pursue a double objective: to ensure that all the bodily and material components of the damage have been compensated, and to make accessible the most accurate assessment of the consequences of an expectation to be paid. physical integrity.
A full assessment: nothing but the damage
The other consequence of the principle of full reparation is the idea that compensation cannot exceed the extent of the damage actually suffered.
This means in particular that the amount of damages awarded to the victim is assessed without taking into account the seriousness of the facts giving rise to the damage.
This distinguishes French law from Anglo-Saxon systems, where the concept of punitive damages (or “exemplary” damages) is accepted in order to increase in certain situations the assessment of the compensation due to the victim, taking into account the resources of the victim responsible.
For example, in the case of a traffic accident, the amount of the compensation will take no account of the seriousness of the driving behavior of the perpetrator of the accident.
The idea that there is only the damage that must be repaired also justifies the refusal of cumulative compensation.
Prohibition of cumulative compensation: principle and exceptions
In principle, a victim cannot combine several compensations for one and the same damage suffered.
In the name of this principle, French law requires the victim of bodily injury to provide proof of all the benefits (in kind or in cash) paid or paid directly by a social security organization, in order to be able to claim the benefit. compensation due to him.
The primary health insurance funds play a crucial role in this regard.
Indeed, the victim (or his lawyer specializing in bodily injury) must request a document containing all the costs incurred by the social body, which will then have a period of 4 months to produce the document, called a claim. of the social organism.
This rule has two objectives: first, to ensure that the assessment of the compensation due to the victim corresponds exactly to the damages that remained to be borne by him. And above all to allow social security organizations to exercise recourse against the responsible third party.
Because if the CPAM – for example – initially pays the medical and hospital costs, as well as daily allowances to an injured victim, it will be incumbent solely on the person responsible for the damage (and his insurer) to pay in the end. all of these services, by reimbursing the amount to the CPAM.
The prohibition of double compensation for the victim, however, has an important limit: to prohibit the victim from accumulating benefits, it is also necessary that the benefit paid elsewhere by a third party be of a “compensatory” nature, a term opposed to the “lump sum” character.
The example undoubtedly posing the most difficulties in practice is that of a so-called “provident” insurance contract, offering in the event of work stoppage, invalidity or death benefits defined in advance in the general conditions. or specific to the contract, in return for an equally determined annual contribution. Depending on the terms of the contract, a victim may or may not claim to receive both the contractual compensation provided and full compensation from the responsible third party, without deduction of the contractual compensation received.
A fair assessment: the pitfalls to avoid
In trying to assess the damage for what it is, for what it represents for the victim, one should avoid the trap of overly ``objectifying`` compensation.
In other words, the victim must not see his damage being compensated only by reference to scales.
French law has always refused to adopt such official scales. There are, however, several similar tools, called “compensation benchmarks”.
Some of these repositories are published by bodies responsible for indemnifying (ONIAM repository, for example), and therefore lack the objectivity necessary for their probative value, since they emanate from a payer, having an interest in limiting costs. as much as possible.
Others are published by the courts (so-called “Grand Ouest” repositories, ARPEJE repository, etc.), and constitute tools that may be of some use in forcing an insurer to formulate a fair transactional proposal, or to assess the compensation to be paid. which such victim could reasonably claim before the court concerned.
These repositories must however be used with caution, as each situation is unique, and each damage is also.
In addition, a compensation repository in no way replaces the need for the victim to “put together” his case properly, namely to present the right documents, the right arguments, to justify claims for compensation up to the reality of the damage suffered.
And to this end, enlisting the advice of a lawyer specializing in personal injury is most often useful, and in many situations essential.
The specialized law firm LELIEVRE & SAINT-PIERRE in Marseille is at your disposal for any further information during a first interview.