7. Property Damage

In the previous sections, we examined the evaluation of damages for personal injury and death in English and French law. In this section, we turn our attention to the oft-neglected subject of property damage.

In England, the legal position depends upon whether property was destroyed or merely damaged. In the case of destruction, the claimant is entitled to the market value of the property at the time of its destruction.⁴⁴⁹ Where goods are damaged, the basic rule is that damages will be awarded for the diminution in value of the property, which is generally the cost of effecting its repair.⁴⁵⁰ This will be calculated as at the time when it was reasonable for the repairs to be effected.⁴⁵¹ The claimant may also recover non-remote consequential damages, such as the cost of hiring a replacement⁴⁵² and the loss of business profits.⁴⁵³

In France, damages will be awarded for the market value of the destroyed property or building before the accident,⁴⁵⁴ with a reduction for its residual value. So when a car is destroyed, the claimant will gain its market value minus scrap value.⁴⁵⁵ Where property is damaged, (p.236) reparation will amount to the cost of repairing the damaged item,⁴⁵⁶ as long as this does not exceed the loss in market value.⁴⁵⁷ Account will be taken of the period for which the proprietor has been deprived of using the property,⁴⁵⁸ although some amounts awarded under this head are suspiciously low.⁴⁵⁹

Note should also be made of other elements of French administrative law. The date of calculating the property loss is very inflexible. The administrative courts take the prices prevailing at the time of the wrongful act which, given the chronic delay in hearing cases⁴⁶⁰ and inflation in property prices and construction costs, can have a marked effect on the amount gained.⁴⁶¹

Also, the damages awarded in France will invariably be reduced in a number of ways.⁴⁶² First, under the procedure of abattement, account is taken of the substitution of new materials for old.⁴⁶³ So, if a building is damaged and repair work is needed, the courts will reduce the damages, sometimes by a considerable amount, as the building will subsequently be ameliorated in contrast with its prior state.⁴⁶⁴ Abattement often occurs in respect of damage to chattels.⁴⁶⁵ In contrast, allowance is not made for ‘betterment’ in English law.⁴⁶⁶ Secondly, reduction will be made in French law for the fact that the damage sustained may be offset by benefits accruing to the claimant. For instance, if travaux publics to construct new drains have caused property loss, the courts may still reduce damages on the basis that improvements made by the public works will ultimately benefit the claimant.⁴⁶⁷ Thirdly, Moreau has noted that actions to recover lost profits consequent upon property damage are evaluated in a strict (p.237) manner by the judiciary.⁴⁶⁸ Fourthly, a wide conception of the contributory fault of the victim often plays a part in reducing the defendant's liability.⁴⁶⁹ Fifthly, in assessing damages for repair work, it is assumed that such work will be conducted by the ‘least expensive technical means possible’.⁴⁷⁰ Finally, as with personal injury awards, deductions are made for collateral benefits. Damages awards have thus been reduced on the receipt of charitable gifts by the claimant.⁴⁷¹