(P.222) 5.2. Points of Divergence

Inevitably, the different methods of calculating damages for personal injury complicate the task of comparison.³¹⁷ Some general comparative remarks will be made. Then, an in-depth analysis will be made of the issue of collateral benefits.

5.2.1. General Comparative Remarks

First, a basic comparative analysis can be made of standard damages awards given for non-pecuniary loss stemming from personal injury by selecting, on the one hand, an award by a French court for troubles dans les conditions d'existence, and other non-pecuniary loss but excluding loss of earnings. This can be compared with a parallel award by an English court for non-pecuniary loss. Any such statistical comparison should be treated with caution,³¹⁸ but it would seem that on a general basis damages awarded for non-pecuniary loss are broadly comparable (see Table 7.1).

Table 1. Comparative Analysis of Damages Awards made for Non-pecuniary Loss

Injury	France319	England320
Serious Injury to Thumb321	43,000 FF322	£6,250–£8,500
Total Loss of one eye	200,000–225,000 FF323	£28,000–£33,000
Total Loss of Hearing in one Ear	80,000–97,000 FF324	£16,000–£23,000
Amputation of one leg	560,000–600,000 FF325	£45,000–£70,000326
Amputation of two legs (below knee)	800,000–930,000 FF327	£100,000–£135,000
Total Deafness	450,000 FF328	£45,000–£55,000
Persistent Vegetative State	500,000–2,000,000 FF329	£140,000–£200,000

(p.223) Secondly, the calculation of lost earnings is marked by a different attitude to the certainty of loss. In French administrative law, the stipulation of certainty has posed very real problems for claimants. Whereas the courts commonly countenance claims for revenue lost over a specific period in the past,³³⁰ the case law indicates that the courts are very reluctant to award reparation for future loss of earnings as an autonomous head of loss.³³¹ Claims are rejected on the basis that the future career plans were only probable,³³² or not sufficiently proven.³³³ Even when these obstacles have been surmounted, it has been difficult for claimants to persuade the courts to recognize hypothetical salary increases in the damages awards. It would seem that a salary upgrade for possible career advancement will generally be of the required certainty solely for those working in the public sector.³³⁴ Although this restrictive approach to damages for future lost revenue is sometimes balanced by an increase in the sum awarded for (p.224) troubles dans les conditions d'existence, this can prove to be a poor substitute.³³⁵ On this point, French law contrasts with English law. The English courts are not deterred from engaging in prophesies as to the future. As long as the future contingency is not so small as to be speculative, the courts will assess damages in proportion to the chance,³³⁶ thus reconstructing the victim's hypothetical career.³³⁷ Lost earnings often amount to substantial sums.³³⁸

Thirdly, and related to the previous point, non-salaried claimants are treated differently in the two countries. Given that the majority of the population are not salary earners, this is a significant factor.³³⁹ In French administrative law, the general rule is that damages for lost revenue may be recovered only for those who had a salaried employment at the time of the injury,³⁴⁰ or those who have lost a serious chance of employment.³⁴¹ On the other hand, the English courts have adopted a more generous approach to the reparation of lost revenue. Those who provide gratuitous services, such as housewives, can recover damages for the cost of employing someone to perform these tasks.³⁴² Likewise, in the case of minors, the English courts will explicitly provide reparation for lost future earnings,³⁴³ unlike the French administrative courts.³⁴⁴ English law takes account of the loss of capacity to earn;³⁴⁵ in French law such an element would not reach the necessary level of certainty for a specific head of loss.³⁴⁶ Again, some recognition of this loss may be made in French law under the rubric of troubles dans les conditions d'existence, but in practical terms this does not satisfactorily bridge the financial difference.³⁴⁷