(P.210) 3.4. Conclusion

The French courts are more ready to accept damages claims for loss of a chance than their English counterparts. But, as in other areas, there are restrictive control mechanisms in the French system. The English courts may be influenced in favour of a more liberal approach. First, in awarding damages under the Human Rights Act 1998, courts will have to take into account the principles of the ECtHR on this matter,¹⁸³ including its attitude to lost opportunities. Although the Strasbourg Court's case law on this point is not entirely crystal clear,¹⁸⁴ compensation has been awarded on a number of occasions for loss of a chance, particularly in respect of breach of Article 6 (fair hearing), where applicants have alleged that a procedural impropriety has reduced their chances of gaining a benefit or avoiding a loss.¹⁸⁵ Secondly, the requirement of an effective remedy for breach of the European public procurement rules may broaden the award of damages for lost chances of making a profit.¹⁸⁶ Indeed, in a recent case a claimant gained damages for lost profits from the corporate officer of the House of Commons, on the basis of misfeasance in public office arising from the unequal treatment of tenders for a construction contract concerning the new Parliamentary building.¹⁸⁷

4. Moral Damage in English and French Law

The notion of moral damage, which corresponds with common law non-pecuniary loss, has exercised the minds of the judiciary on both sides of the channel. This is again a sphere in which the French courts have evolved to a more liberal approach than their English counterparts. The effect of policy concerns may nonetheless be felt in both countries.

(P.211) 4.1. Préjudice Moral in French Law

French courts now grant financial reparation for many types of préjudice moral, including pain and suffering,¹⁸⁸ pretium affectionis,¹⁸⁹ slight to one's reputation,¹⁹⁰ and embarrassment owing to physical disfigurement.¹⁹¹ No list of préjudice moral would be complete without mention of the ‘chameleon-like’¹⁹² notion of troubles dans les conditions d'existence.¹⁹³ Chapus has written that the notion of troubles relates to ‘an abnormal modification caused to the claimant's life, in his affairs, his habits, or his projects’.¹⁹⁴ It correlates with a wide range of injuries, but is primarily restricted to the equivalent of English law heads of non-pecuniary loss.¹⁹⁵

Two features of the administrative courts' attitude to préjudice moral should be noted. History shows that the administrative courts initially exhibited a real reluctance concerning claims in damages for certain types of préjudice moral. Traces of this caution may be detected in the present case law.

4.1.1. Reluctance in Awarding Damages for Préjudice Moral

Originally, the administrative courts placed restrictions upon the grant of damages for physical suffering. Until Commune de Grigny¹⁹⁶ in 1958, claims for physical suffering would only be countenanced if there had been ‘exceptionally severe suffering’.¹⁹⁷ The position has now changed, and damages will be granted for suffering which is of a ‘moderate’ nature.¹⁹⁸ Damages for physical suffering are now often subsumed under the head of loss known as troubles dans les conditions d'existence.¹⁹⁹

The administrative courts were also slow in their recognition of pretium affectionis, known in French administrative law as douleur morale or préjudice (p.212) d'affection.²⁰⁰ For a long time, the courts simply rejected such claims.²⁰¹ As pretium affectionis was not measurable in financial terms, it was not considered to be a head of loss for which reparation would be granted.²⁰² It would also seem that policy concerns were influential. There were fears of the potential frequency and extent of claims. It was feared that the nature of pretium affectionis could entail a ‘proliferation of actions’ from a plethora of secondary victims claiming to have suffered grief.²⁰³ A Commissaire du Gouvernement indicated that the courts were protecting public funds by rejecting such claims.²⁰⁴

These concerns did not hold much sway with many jurists. As early as 1958, CG Delevalle dismissed the public finance concerns as irrelevant.²⁰⁵ Luce argued that public bodies could be insured against these types of claims, and that the public purse was large enough to incorporate any increased costs.²⁰⁶ The disparity with the ordinary courts, which had been awarding damages for pretium affectionis for some time,²⁰⁷ was denounced as ‘shocking’.²⁰⁸ In a Parliamentary debate, the administrative courts were urged to be more generous.²⁰⁹ The turning point came in 1961.²¹⁰ Damages were finally awarded for the pretium affectionis suffered by the father of a man killed in an accident.²¹¹