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Cette page en français This page in French

Jonathon Wise Polier
Member of the Bars of New York State and Paris (France)
4 rue de Marignan
75008 Paris

Telephone: (33) 1 47 23 41 51
Fax:  (33) 1 47 23 37 93

E-Mail: j-polier@paris-law.com
http://www.paris-law.com

Personal Injuries in or while Visiting France

Tourists and short-term business travelers visiting France may be injured in a number of ways including the following:

• automobile or other vehicular accident, 
• injury incurred when in a hotel or restaurant or even in a private dwelling, 
• injury relating to medical malpractice,  
• etc.

Recovery in France for accidental and non-accidental personal injury is generally based upon a theory of tort (negligent act or omission causing bodily or other injury). But, in certain areas the personal injury recovery may be based upon implied contract (e.g., services of a doctor), or non-fault (e.g., passengers in a motor vehicle).

French Insurers

Most defendants in personal injury matters have liability insurance and therefore the real defendant party in interest is usually a major insurance company doing business in France.

Settling Personal Injury Claims in the Absence of Legal Proceedings

Where the liability of the defendant is not at issue and the only issue is the amount of the damages, the French  insurance companies and the legal counsel of the victim can under certain circumstances estimate with a reasonable degree of confidence the amount of the eventual amount of damages that a French court might award.

Under such circumstances, the victims counsel will make an initial presentation to the insurance company and normally obtain an advance, partial payment ("provision") within a relatively short time. Some times before and generally once the victim's condition has stabilized ("consolidated"), the victim's counsel has his medical expert examine the victim and then such doctor and the insurance company's doctor jointly examine the victim. If their valuations of the physical and mental prejudice (see criteria listed below) are not too far apart, it may be possible to negotiate a settlement which leads to a fair, quicker and less costly solution.

Even if there are no settlement negotiations, in the absence of a serious issue of responsibility of the insurance company, the French insurance company will generally make a partial payment ("provision") within a month or so of receiving a documented request.

Naturally, the search first for a non-litigious solution does not deprive the victim of his right to seek a judicial determination.

Cause of Damages

In this introductory article, the issue of proving the liability of the defendant and its insurer is not discussed. However, It is noted in passing that contributory negligence of the victim may result in a reduction in the amount of damages. 

Determining the Amount of the Damages

Generally speaking, the following issues need to be addressed when estimating the monetary amount of recoverable damages, be the issue to be resolved in settlement negotiations or in a legal proceeding:

• Economic Prejudice:
  
  1. lost earnings over life 
  2. additional expenses
  
• Non-economic prejudice:
  
  

  1. pain, suffering and loss of quality of life 2. aesthetic damage 3. loss of physical/mental integrity 4. loss of life expectancy

  1. pretium doloris, 3,5/7 5000,00 ¤ 2. préjudice esthétique, 2,5/7 2000,00 ¤ 3. préjudice d'agrément 6000,00 ¤ 4. perte d’espérance de vie

Legal Means of Establishing Damages

As noted in more detail in another article (Commercial Litigation in France), France does not have juries in civil matters, punitive damages are not awarded, and there is no oral testimony at the brief trial before the French Tribunal. Accordingly, the Magistrate will usually designate a neutral medical expert to evaluate the nature of the victim's injuries and disables. On occasions, a second expert may be designated by the Tribunal to examine certain economic issues by an expert-comptable (Certified Public Accountant)  or other expert. 

In the event of the designation of a medical expert, the victim will be examined by such expert in the presence of the parties' respective experts. The parties' respective legal counsels may also jointly meet with the expert and submit written observations and documents. The expert will then either submit to the parties legal counsel a preliminary report for comment or simply file his definitive report with the Tribunal. As the expert designated by the Tribunal is neutral, usually the parties point out possible discrepancies but do not seek the designation of a second, independent expert. But, when that does occur, the Magistrate is at liberty to designate a second expert or to decline to do so.

Fees of the Expert

The professional fees of the appointed expert are set by the Magistrate. If the liability of the defendant is not contested, the insurance company will generally ultimately pay 100% of such fee. If the victim's attorney asks for the designation and obtains the designation of a second expert, depending on the conclusions contained in the second report and the Magistrate's decision, the victim may be required to bear part or all of such second fee.

Appeals

A decision of the trial court (Tribunal de Grande Instance) can be appealed to the Court of Appeals which conducts a complete new retrial. Further appeals to the Cour de Cassations on issues of law, but not issues of fact, occasionally occur.

Legal Fees

French lawyers (advocates) will normally enter into a written retainer agreement providing for the lawyer to be paid certain amounts and, if a favorable result is achieved, a bonus. Under French law, they may not represent their clients on a 100% contingency basis.