Retirement loss must be compensated
Statement of the dispute
Facts and procedure :
1. According to the judgment under appeal (Toulouse, 17 March 2021), on 3 December 1988, Mr [D] was involved in a road traffic accident as a passenger in a vehicle insured by Gan assurances (the insurer) and driven by Mr [S].
2. By judgment of 11 October 1991, which is irrevocable, a tribunal de grande instance awarded Mr [D] various sums in compensation for his injuries. Mr [D], claiming that his injury had worsened, applied to a summary proceedings judge who ordered an expert assessment.
3. The expert report, filed on 20 October 2014, found that the worsening of Mr [D]'s state of health was the consequence of the traffic accident of 3 December 1988. The new date of consolidation was set at 4 March 2016. This was after two new expert assessments had been ordered by decisions dated 26 June 2015 and 1 July 2016.
4. On 7 June 2018, Mr [D] then brought an action before a tribunal de grande instance :
- the insurer and the Caisse primaire d'assurance maladie de l'Aveyron (Aveyron primary health insurance fund)
- for compensation for the aggravation of his loss.
Pleas in law (Compensation must be paid for loss of pension rights) :
Review of resources
The fifth plea
Statement of the case
5. Thus, Mr [D] complained that the judgment dismissed his claim for loss of enjoyment, even though «loss of enjoyment consists of the victim's inability to continue to engage regularly in a specific sporting or leisure activity ;
In this case, the Court of Appeal noted that ’it is not disputed that the loss of enjoyment already existed before the worsening in 2012, but it is also admitted by the insurer, as the expert states, that, deprived before 2012 of sporting activities, with the exception of cycling, the victim is now deprived since the worsening of his condition of his daily leisure activities such as gardening, walking and bowls«; ;
therefore, in rejecting Mr. [D]«s claim for loss of enjoyment, that »this loss, which ultimately affects his living conditions, has already been compensated by the compensation awarded for loss of enjoyment», even though it was clear from its own findings that, following the deterioration in his state of health, the victim found it impossible to continue practising specific sporting or leisure activities, the Court of Appeal therefore violated the principle of full compensation without loss or profit for the victim."
Reasons (compensation must be paid for loss of pension rights) :
The Court's response
6. The judgment notes that, since his condition worsened, Mr [D] has been deprived of his daily leisure activities such as gardening, walking and playing pétanque.
7. The judgment held that although it could not be disputed that the worsening of his condition had an impact on non-specific outdoor activities, which are those that everyone engages in, so that Mr [D] did not have to justify them in particular, this loss, which ultimately affected his living conditions, had already been compensated by the award for permanent functional impairment.
8. On the basis of these findings and statements, the Court of Appeal, in its unfettered discretion, held that Mr [D] had not proved that it had been impossible for him to continue practising a specific sporting or leisure activity since the aggravation, and it therefore concluded that his loss of enjoyment had not been established.
9. The plea is therefore unfounded.
Pleas in law (Compensation must be paid for loss of pension rights) :
But the second part of the first plea
Statement of the case
10. The victim then complained that the judgment had upheld the award of 3,107.15 euros against the insurer in respect of temporary professional loss, on the grounds that «a contradiction of reasons is tantamount to a failure to state reasons"; ;
by stating, with regard to the self-employed business created by Mr [D] from July 2014, that «if he has not received any income, which is generally the situation when setting up a business, this cannot be linked to a worsening of his state of health», after having noted that ’the impact of the pain on the subject's professional activity cannot be disputed, as the expert clearly noted a deterioration in Mr [D]«s state of health due to the pain he was suffering and noted «their permanent impact on his micro-enterprise activity», from which it followed that the worsening of the victim's state of health had hindered his professional activity». [D]'s state of health due to the pain he was suffering and noted 'its permanent impact on his micro-enterprise activity', from which it followed that the aggravation of the victim's state of health had hindered the exercise of his activity as a self-employed entrepreneur and was therefore the cause of his lack of income, the Court of Appeal vitiated its decision by contradicting the reasons given, in breach of Article 455 of the Code of Civil Procedure."
Reasons (compensation must be paid for loss of pension rights) :
The Court's response :
Having regard to article 455 of the Code of Civil Procedure:
11. According to this text, all judgments must state the reasons on which they are based. A contradiction between the reasons is equivalent to a failure to state reasons.
12. In determining the loss of current professional earnings suffered by Mr [D], the judgment held that compensation could only be awarded for the effective cessation of any activity resulting in a loss of income, and that only 5 months of effective cessation could be justified from 5 October 2015, the date on which Mr [D] ceased his activity as a self-employed entrepreneur, until 4 March 2016.
13. The judgment states that, on the contrary, in July 2014, Mr [D] did not cease all activity but decided to set up his own business, which cannot be equated with a cessation of activity in connection with the worsening of his state of health, so that if he did not receive any income, which is generally the situation when setting up a business, this cannot therefore be linked to a worsening of his state of health.
14. By ruling in this way, by making Mr [D]«s compensation for loss of current professional earnings conditional on him actually ceasing all activity, and by holding, moreover, that the loss of income could not be linked to the worsening of his state of health, after noting that, according to the expert, »the impact of the pain on his professional activity and its effect on his micro-enterprise activity could not be disputed", the Court of Appeal contradicted itself and thus violated the aforementioned text.
Resources :
And on the second plea
Statement of the case
15. Next, the victim complained that the judgment limited the insurer's award for temporary assistance of a third party to the sum of 5,540.87 euros, whereas «the amount of the compensation awarded for temporary assistance of a third party is limited to the sum of 5,540.87 euros’.’assistance of a third party cannot be reduced in the case of family assistance or made subject to proof of actual expenditure; ;
in the present case, the Court of Appeal rejected the increase of 10 % for employer's contributions on the grounds that «Mr [D] does not prove that he had to pay it, so that the first judge was right to reject it», and on the adopted grounds that «as this is family assistance, there is no reason, on the other hand, to increase this sum by 10 %»; ;
that in thus excluding the employer's contributions from the compensation awarded to Mr [D], on the sole grounds that the third party who had assisted him was a family helper and that he could not justify having had to pay them, the Court of Appeal therefore violated the principle of full compensation without loss or profit for the victim.»
Reasons (compensation must be paid for loss of pension rights) :
The Court's response :
Having regard to the principle of full compensation without loss or profit for the victim :
16. The amount of compensation awarded under the’assistance of a third party cannot be reduced in the case of family assistance or made subject to proof of actual expenditure.
17. In setting the compensation for assistance by a third party, the judgment held that Mr [D] did not therefore prove that he had paid the increase of 10 % for employer's contributions, so that the first judge was right to disregard it.
18. In ruling in this way, by excluding the employer's contributions from the compensation awarded to the victim on the grounds that the third party who had assisted her before she was consolidated was a family helper, the Court of Appeal therefore violated the aforementioned principle.
Resources :
The third plea
Statement of the case
19. Mr [D] complains that the judgment limited the insurer's order in respect of the definitive assistance of a third party to the sum of 86,899.40 euros, on the grounds that «a contradiction of reasons is tantamount to a failure to state reasons"; ;
by stating, on the one hand, that «the hourly rate should more appropriately be set at 22 euros, which better corresponds to Mr [D]»s needs as defined by the expert report«, and by deducing from this the following calculation [D]»s needs as defined by the expert report« to deduce the following calculation »[(22 x 3 x 412) x 26.951]x6/46", and secondly that the capital awarded amounted to the sum of 86,899.40 euros "taking into account a need for 3 hours per day on the basis of 412 days at an hourly rate of 20 euros", the Court of Appeal thus contradicted itself and violated Article L. 225-3 of the Code of Civil Procedure. 455 of the Code of Civil Procedure. »
Reasons (compensation must be paid for loss of pension rights) :
The Court's response :
In view of the article 455 of the Code of Civil Procedure :
20. According to this text, all judgments must state the reasons on which they are based. A contradiction between the reasons is equivalent to a failure to state reasons.
21. Thus, to set the amount of definitive assistance by a third party, the judgment held that the hourly rate should be set at 22 euros, which better corresponded to Mr [D]'s needs as defined by the expert report, and then took into account an hourly rate of 20 euros to calculate the loss resulting from the aggravation.
22. In so ruling, the Court of Appeal, which contradicted itself, did not satisfy the requirements of the aforementioned text.
Resources :
And on the fourth plea:
Statement of the case
23. Lastly, the victim complained that the judgment rejected her claim for the loss of pension included in the item of loss of future professional earnings, on the grounds that «the judge cannot refuse to rule on a claim which he accepts as well-founded in principle, on the grounds of the inadequacy of the evidence provided by one of the parties"; ;
that in rejecting the victim's claim for loss of pension, by holding that «with regard to pension rights, Mr [D], whose claim was dismissed at first instance for failure to give any indication of his previous professional activity and to provide the slightest element of evaluation thereof, remains in default before the court, whereas he cannot, as he claims, benefit from a lump-sum compensation in this respect» and, by adopting the grounds, by stating that "Mr [D]'s claim was dismissed at first instance for failure to give any indication of his previous professional activity and to provide the slightest element of evaluation thereof, remains in default before the court, whereas he cannot, as he claims, benefit from a lump-sum compensation in this respect",
that «the loss of pension alleged by Mr [D] thus appears, in the present case, insufficiently demonstrated in view of his professional career, the absence of any simulation and the laws applicable in this area», although it noted that the victim, aged 51 on the day of the consolidation, had suffered a professional repercussion linked to the aggravation of his state of health,
that it was indisputable that the cessation of his professional activity was related to the worsening of his state of health and held that he had suffered a loss of professional earnings, compensated in the amount of 67,398.32 euros, up to the age of 65 at which he would have retired had the accident not occurred, from which it followed that he had necessarily suffered a reduction in his pension rights, the Court of Appeal therefore failed to draw the legal conclusions from its own statements and violated Article L. 225-37 of the French Code of Civil Procedure.’article 4 of the civil code. »
Reasons (compensation must be paid for loss of pension rights) :
The Court's response :
Admissibility of the plea
24. Gan assurances challenges the admissibility of the plea. It argued that before the Cour de cassation, Mr [D] no longer contended that it was not possible to assess the loss for which he was seeking compensation, as he had argued before the Cour d'appel, and criticised the juges du fond for not having carried out such an assessment. It deduced from this that the plea was inadmissible as being incompatible with the appellant's appeal submissions.
25. However, Mr [D] argued both before the lower courts and before the Cour de cassation that the loss of pension rights was thus founded in its existence and it was only in his methods of assessment that his argument changed. The plea raised before the Cour de cassation is therefore not incompatible with the conclusions of the appeal.
26. The plea is therefore admissible.
Merits of the plea :
Having regard to Article 4 of the Civil Code :
27. It follows from this text that the court may not refuse to rule on an application, which it therefore accepts as well-founded in principle, on the grounds that the evidence provided by a party is insufficient.
28. In dismissing the claim for loss of pension rights, the judgment stated that Mr [D], whose claim was dismissed at first instance for failure to give any indication of his previous professional activity and to provide the slightest element of evaluation thereof, remained in default before the court, whereas he could not, as he claimed, benefit from lump-sum compensation in this respect.
29. In so ruling, while noting that it was indisputable that Mr. [D] had suffered professional repercussions in connection with the worsening of his state of health, that his almost insignificant residual work capacity had not enabled him to maintain his activity as a self-employed entrepreneur and held that he had suffered a loss of earnings until the age of 65, The Court of Appeal therefore failed to draw the legal conclusions from its own statements and violated the aforementioned text.
Device:
FOR THESE REASONS, the Court :
REVERSE AND ANNUL, but only insofar as it ordered Gan Assurance to pay the sum of 5,540.87 euros in respect of the aggravation, the sum of 3,107.15 euros in respect of the temporary assistance of a third party, and the sum of 3,899.40 euros in respect of the permanent assistance of a third party and the sum of 67,398.32 euros in respect of the loss of future professional earnings, to the sum of 86,899.40 euros in respect of the permanent assistance of a third party, and to the sum of 67,398.32 euros in respect of the loss of future professional earnings, the judgment of the Toulouse Court of Appeal of 17 March 2021; ;
Restores the case and the parties to the status they had before this judgment and refers them back to the Toulouse Court of Appeal, otherwise composed; ;
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