6. Death and Damages Liability

We have looked at damages for personal injury in England and France, and will now turn to investigate the calculation of damages when administrative malpractice has led to the death of the primary victim. Death resulting from wrongdoing can affect damages liability in two distinct ways. Evidently, it can give rise to liability in the sense of an action in damages for the loss caused by the death. It can also act to limit the right to bring an action. These issues will be considered in reverse order.

6.1. Death Extinguishing a Right of Action

Until recently, the death of a person could act to extinguish a claim in French administrative law. Following the maxim of actio personalis moritur cum persona, the victim's right of action for recovery of damages in respect of préjudice moral, such as pain and suffering, would expire with the person, unless an action had personally been commenced by the victim prior to death.³⁷⁰

(p.228) Administrative law has now been brought into line with civil law, and the right in action for all loss is vested in the victim's estate.³⁷¹ A similar approach is adopted in English law, so that the estate of a victim of personal injury who dies before the claim for damages is resolved may recover damages for any pre-death pain, loss of amenity, and pecuniary loss regardless of whether or not the deceased commenced an action for damages while alive.³⁷²

6.2. Right of Action Deriving From Death: Compensating Secondary Victims

Many people associated with the deceased may be affected by his or her death. Grief and distress are often combined with pecuniary loss. The rules governing the granting of reparation to these secondary victims differ in the two jurisdictions.

In English law, statutory intervention has provided a framework for the courts' approach. In France, the law has evolved through the jurisprudence of the administrative courts, under the influence of various policy factors.

6.2.1. French Law

There has been a lively debate in French law concerning the granting of damages for loss caused to secondary victims (préjudice par ricochet).³⁷³ Despite a restrictive stance in the past, the administrative courts have developed to become more liberal both in terms of those secondary victims eligible to claim monetary redress and in terms of the quantum of damages awarded.

Ricochet damages may be claimed when the primary victim is injured or killed. In practice, however, the most significant application is in respect of actions arising from death, due to the severe financial implications for the secondary victims.³⁷⁴ The general approach of the French administrative courts to ricochet loss will first be analysed. The method of calculating the damages will then be examined.

The attitude of the French administrative courts was initially restrictive. (p.229) Ricochet damages could be recovered only if there had been a legal obligation of maintenance between the primary victim and the claimant.³⁷⁵ This essentially covered the children and married partners of the primary victim.³⁷⁶ Many potential claimants were thus excluded, particularly unmarried partners³⁷⁷ and siblings.³⁷⁸ Commentators cited a number of reasons for the restrictive approach.³⁷⁹ Some conceptualized this as an atavistic echo of the days of governmental immunity;³⁸⁰ others detected socio-moral undertones in the exclusion of unmarried partners.³⁸¹ Of particular prominence, however, was a French version of the floodgates policy concern. Dupichot refers to this as the ‘tidal-wave’ problem:³⁸² ‘the courts would rapidly be swamped by [the claims of] indirect “victims” enticed by the prospect of a potential pay-out’.³⁸³

Gradually, however, concern for reparation of the victim gained ground. The administrative case law evolved slowly. In 1952, the Conseil d'Etat abandoned the requirement of an obligation of maintenance,³⁸⁴ allowing a claim in damages for loss caused by the death of a sibling.³⁸⁵ But the administrative judiciary still resolved that concubines³⁸⁶ were not eligible to claim damages for loss caused by the death or injury of their partner,³⁸⁷ thus incurring the wrath of Waline who lambasted it for its ‘Victorian morals’.³⁸⁸ Eventually, the administrative courts reversed their attitude to concubines, influenced perhaps by unfavourable comparisons with the ordinary courts, which had progressed as far as granting awards for ricochet damages on the death of animals.³⁸⁹ After Muesser in 1978, the administrative courts accepted actions by unmarried partners, as long as their relationship with the primary victim had been ‘sufficiently stable and continuous’.³⁹⁰

(p.230) In the current case law, a wide range of family members are compensated as secondary victims, including parents, children, siblings, spouses, and partners of the primary victim.³⁹¹ To keep claims at a reasonable level, the courts use a variety of control devices: claims are rejected where the relationship between the primary victim and the claimant was ephemeral,³⁹² the causal link between the primary victim's accident and the secondary victim's loss is too indirect,³⁹³ or the evidential requirements are not met.³⁹⁴

Secondary victims can now claim financial redress for préjudice moral³⁹⁵ and, more significantly, for préjudice matériel, or dependency loss.³⁹⁶ The method of assessing damages for dependency loss is revealing. A percentage of the primary victim's net salary at the time of the accident is taken,³⁹⁷ with only a limited possibility for showing hypothetical salary increases.³⁹⁸ The dependant will be accorded a lump sum which is calculated by multiplying the percentage of the salary by a multiplier fixed by the Caisse Nationale d'Assurance Vie.³⁹⁹ The exact percentage of the bread-winner's salary used as a base amount will depend upon various factors. A widow without children is generally entitled to a dependency loss represented by 50 per cent of her husband's salary.⁴⁰⁰ For a dependant family with children, the widow is commonly granted 35 per cent of the deceased's annual salary, and the children 8–15 per cent each depending upon their number.⁴⁰¹

(p.231) The date of assessment of the lost earnings has been subject to some change. In French law, the courts initially stipulated that damages were to be calculated as at death.⁴⁰² This has been explained as inspired by the need to protect public funds⁴⁰³ and, indeed, the high inflation rate and significant delay in gaining judgment seriously devalued the claimant's damages. The administrative courts have developed a more favourable approach.⁴⁰⁴ Lost revenue will now be assessed at the latest date of judgment, unless the lower court or administrative authority's calculation of quantum is considered to be adequate.⁴⁰⁵