Sovereign power of the judge with regard to PGPFs
Lawyers in Bastia, Lawyers in Corsica, Lawyers for personal injury
Facts and procedure :
According to the judgment under appeal (Pau, 26 January 2021):
- following surgery to treat urinary incontinence and inguinal hernia,
- performed on 23 May 2002, Mrs [D] developed peritonitis following accidental perforation of a small intestine.
Following an opinion issued on 20 December 2006 by the medical accident conciliation and compensation commission d'Aquitaine, which concluded that a medical accident had occurred that was not the fault of the patient and for which compensation could be paid under the national solidarity scheme, theOffice national d'indemnisation des accidents médicaux (National Office for Compensation for Medical Accidents)and iatrogenic disorders hospital-acquired infections (ONIAM) made offers of compensation to Mrs [D] which she accepted on 7 July 2008.
On 11 June 2015, Mrs [D] summoned ONIAM for payment of additional compensation in respect of the loss of future professional earnings.
Examination of the plea (sovereign power of the judge with regard to the PGPF) :
Statement of the case
Mrs [D] complains that the judgment dismissed her claims:
" 1°/
that the judge must give sufficient reasons to justify his decision;
for compensation for medical accidents :
- loss of future professional earnings due to the inability to work;
- can be determined by means of an estimate;
that the loss of professional income that Mrs [D] should have received from her business in the absence of the medical accident that she suffered, without specifying on what grounds this future income could not be taken into consideration solely because it was "hypothetical income ? the result of several extrapolations", when Mrs [D] had pointed out that the simulation carried out by the accountancy firm Act Audit reflected "the income that the victim would have received in the absence of the medical complication that occurred", the Court of Appeal violated Article L. 225-3 of the Civil Code. 455 of the Code of Civil Procedure ;
2°/
that in the case of damage resulting from a medical accident and compensable under II of Article L. 1142-1 or article L. 1142-1-1 of the Public Health Codethe article L 1142-17 of the same code provides for compensation aimed at fully compensating the losses suffered and that compensation for loss of future professional earnings is justified if the victim is unable to continue working after the accident;
that in so ruling, on the grounds "above all" that the loss of future earnings from the operation of the business, subsequent to the consolidation on 9 October 2006, was not directly related to the medical accident insofar as Mrs [D]'s decision to sell the business in October 2004 would have broken this causal link, the Court of Appeal, which did not investigate whether, as Mrs [D] maintained, this decision to sell the business had not been imposed by the mere occurrence of the accident, which it noted had taken place in 2002 and 2003, so that this loss of future earnings was directly attributable to her within the meaning of article 1142-1 of the Public Health CodeThe Court of Appeal found that the Court of Appeal's decision deprived it of a legal basis in the light of the aforementioned text.
The Court's response :
Under the guise of unfounded complaints of breach of the law and lack of a legal basis, the plea :
- merely seeks to challenge before the Cour de cassation the sovereign assessment made by the Court of Appeal
- the value and scope of the facts and evidence submitted to it
- on the basis of which it considered that the loss of future professional earnings claimed had not been established.
The plea is therefore unfounded.
The Court dismissed the appeal.
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