Compensation for bodily injury and moral prejudice in constant evolution

In terms of legal compensation for personal injury, injury headings have been defined and listed in order to facilitate compensation for victims.

As such, all victims will be compensated for the suffering they have endured.

• Endured suffering

The suffering endured represents a temporary loss, experienced during the traumatic phase, from the date of the accident to the date of consolidation of the injuries. In other words, the date from which the victim’s state of health no longer changes favorably or unfavorably.

The suffering endured is both physical and moral.

At the stage of compensation for temporary losses, they compensate, in particular, the temporary moral loss suffered by the victim.

After consolidation, the moral prejudice is compensated by the permanent functional deficit, or damage to the victim’s physical and mental integrity.

AIPP or permanent functional deficit

The AIPP or permanent functional deficit represents the victim’s impairment of physical, psychosensory or intellectual potential.

This loss item is defined by the European Commission (Trier Conference, June 2000) and the Dintilhac report as :

“the definitive reduction in physical, psychosensory or intellectual potential resulting from damage to anatomical-physiological integrity that is medically ascertainable, and therefore appreciable by an appropriate clinical examination supplemented by the study of additional tests produced, to which are added the painful phenomena and the psychological repercussionsthe consequences normally associated with the sequellar damage described, as well as the consequences usually and objectively associated with this damage in everyday life”.. (MORNET Reference – P.68)

Originally, this item of damage was intended to compensate not only for purely physical and psychological after-effects, but also for mental suffering.

The “definitive” moral prejudice was therefore, in principle, compensated via this item.

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However, this has not prevented the emergence of new injury categories, based on moral prejudice.

This is how near-death experience came into being.

This loss corresponds to the extreme suffering undergone by the victim between the accident and his death, due to the awareness of his imminent death.

Initially, there was disagreement between courts, with some recognizing the autonomy of this loss item, while others rejected it and considered that this loss was compensated by the suffering endured.

In a decision dated March 25, 2022, the mixed chamber of the French Supreme Court (Cour de cassation) resolved the differences in position, ruling that full compensation for the damage suffered by the victim, without loss or profit, justifies compensation for the victim, on the one hand, for the suffering endured as a result of his injuries, and on the other hand, autonomously, for the anguish of imminent death. (Ch. Mixed, March 25, 2022, appeal no. 20-15.624).

This prejudice can only exist and be passed on to the victim’s heirs when the latter was aware of his condition before his death.

Similarly, in the field of employment law, the existence of the prejudice of anxiety has been recognized.

Originally linked to asbestos, this injury is now intended to compensate victims for having been exposed to a toxic substance and experiencing a feeling of permanent anxiety generated by the risk of declaring a disease linked to exposure to such a substance at any time.

Experiencing this feeling causes him a moral prejudice known as “anxiety prejudice”.

In the medical field, it is the moral prejudice of unpreparedness that has been accepted by the courts.

The principle is that every person has the right to be informed not only of his or her state of health, but also, and prior to any investigation, treatment, preventive act, diagnosis or care, of the risks inherent in them.

The patient’s informed consent must therefore be obtained by the practitioner whose job it is to intervene, unless this is impossible or urgent.

As a result, failure to comply with this duty to inform gives rise to a prejudice, materialized by the loss of opportunity to avoid the damage if he had received enlightened information about the existing risks.

But it also entails a loss resulting from the victim’s inability to prepare for the risk in advance, due to a lack of information about the risk.

The High Court has held that, on the one hand, the lack of information deprives the patient victim of the possibility of avoiding the damage resulting from the medical act and the risks incurred, by refusing to allow the medical act to be performed.

But on the other hand, this lack of information deprives the patient victim, when the risk occurs, of any preparation for the consequences of such a risk.

This represents the autonomous prejudice of unpreparedness, moral prejudice.

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In line with the evolution of moral prejudice, the First Civil Chamber of the French Supreme Court (1^st Civil Chamber, December 6, 2023, appeal no. 22-20.786) recently had to rule on the existence of moral prejudice linked to the removal of a healthy organ.

The Court of Appeal had awarded compensation for this item of loss, which it considered to be autonomous in this case.

Naturally, this decision was contested, considering that this moral prejudice was already compensated on a temporary basis by the suffering endured, and on a definitive basis by compensation for permanent functional deficit (or AIPP).

The Court of Cassation dismissed the appeal, holding that :

“The Court of Appeal held that the removal of the prerotum bursa was unnecessary and constituted a fault on the part of the surgeon, and that Mr [Z] had suffered moral prejudice as a result of the removal of a healthy organ.

6. Since the sums awarded for permanent functional loss and suffering did not include this loss, which it had found to exist, it was able to compensate it separately and did not disregard the principle of full compensation without loss or profit for the victim.
7. The claim is therefore unfounded.

The High Court also took advantage of this ruling to recall the autonomy of moral prejudice for the victim, resulting from the lack of information received from the practitioner.

The victim’s right to receive compensation not only for the suffering he or she has endured, and for his or her AIPP, but also for the various moral prejudices he or she has suffered has therefore been reaffirmed: moral prejudice resulting from the lack of information received by the victim from the practitioner, and a novelty, very specific to the case in point, moral prejudice resulting from the removal of a healthy organ.

Victims can therefore congratulate themselves on the evolution of their rights to compensation, and on the recognition of the different faces of the moral prejudice they have suffered.