The Tort law: Compensation for damage is characterized by the presence of a fault causing damage to be repaired. What does that mean? (I). When are we responsible (A)? Who is the victim (B)? Can the liability be mitigated or can it be exonerated (C)? So many questions will find their answers in this article. in Tort law
But then, how to act to implement this responsibility and see his damage compensated?
I) Tort liability: fault causing injury. What’s this?
The implementation of tort makes it possible to compensate for the damage suffered outside of any contract between the victim and the person responsible.
This mechanism will fully repair the damage suffered: everyone is responsible for their actions, and therefore repair the damage they cause.
In French law, the compensation, that is to say, the compensation of the victim, will be calculated according to the damage he has suffered.
In tort, there must be a person responsible for having caused damage (A) to a victim (B) through his fault. However, with regard to the fault committed, there are exemptions or mitigations (C).
A) Tort law: Compensation for damage! When are we responsible?
Several conditions must be cumulatively met in order to be able to trigger an individual’s tort liability:
- There must be a fault, which corresponds to an event giving rise to the damage.
It is the result of an abnormal, unreasonable act: as soon as it causes issues to others, the behaviour is wrong. This fault is different from criminal fault.
This fault can be intentional or unintentional, and the result (the suffered) will be taken into account.
It can be our own fault, but also the fault of something or an animal in our care, or even someone else’s fault when we have to answer for it (such as a child, or an employee/apprentice).
- There must be damage, an attack on others.
This damage can be moral, material or bodily.
Examples: loss of income, lost earnings, costs incurred, aesthetic damage, suffering endured, functional deficit, damage to honour, prejudice of anxiety, the impossibility of carrying out a family life project due to the victim’s disability (prejudice of ‘establishment), damage to relatives for the trauma linked to the end of the victim’s life, inability to carry out activities followed before the damage (loss of pleasure), etc …
- This damage is necessary : if the damage is non-existent, compensation cannot be claimed.
- This damage must be certain : with some exceptions, we cannot compensate for damage that is only hypothetical. The judgment of judges is important in this matter. However, future damage, ie damage with a high probability of occurring, will be compensable. For example, the courts have been able to recognize future damage for employees in contact with asbestos, and who may develop a disease linked to this environment.
A certain loss of luck (such as when the doctor does not tell you the risks associated with the operation, and you suffer damage after one of these risks has occurred) is also taken into account.
In all cases, it is for the judge to assess the cases presented on a case-by-case basis in order to determine whether the damage fulfills this criterion of “certainty”.
- The damage must be direct : it is the immediate consequence of the fault committed.
- Finally, the damage must be lawful, legitimate . Indeed, for example, the loss of income from a prohibited trade cannot be repaired.
- There must be a causal link between this fault and this damage . The cause cited must have had the effect of the damage reported. The fact suffered must have caused the damage for which compensation is sought.
Please note , it is in principle up to the victim to prove this cause and effect link. However, there are exceptions, called “presumptions”, where the causal link between a particular individual and the damage is presumed. This is the case, for example, with responsibility for the fact of things.
The judge will check all these elements. He may therefore reject a request if he considers that it does not meet the criteria.
B) Who is the victim?
There is a direct victim of harm. It can request compensation for its damage by activating the civil liability of the person responsible. This victim must be alive and viable: a deceased person or a child who has not yet been born can take advantage of this mechanism. However, if the child is born with a disability as a result of the giving rise (medical malpractice, for example), he may be considered a victim.
In addition, there are ricochet victims (indirect victims). Who can also seek redress. To do this, they must have suffered material or moral damage, related to the event giving rise to the damage to the direct victim. Therefore, they have a personal injury.
It is necessary to demonstrate a close link between the direct victim and the ricochet victim. This is not necessarily a legal bond, but they must be close: spouse, partner, brother, child, daughter-in-law …
In the event of the death of the direct victim : relatives benefit from a hereditary action: the direct victim must not have died directly as a result of the damage. Relatives will operate the civil liability of the person responsible with the rights of the direct victim, “in his name”.
C) Are there cases where the responsibility can be mitigated or not taken into account?
The answer is yes. Several situations will make it possible to exclude the taking into account of the facts and therefore to exclude a repair: Tort law
- The acceptance of risk (sports and medical field in particular), will exempt the head of liability. The victim will not consent to the damage itself but will accept the risks involved. We cannot, therefore, blame an individual for harmful consequences (caused for example by an object), if he himself has not committed any personal fault.
This exemption is conditional. In fact, it is limited to the normal risks associated with the activity practiced, and by the absence of violation of a specific rule of prudence or safety. In addition, one cannot accept an abnormal risk, and excessive.
Acceptance of risks is excluded in certain areas: when it is out of competition for a sport (training, warm-up, outing, etc.) when the risk is therefore abnormally high.
- Force majeure: this is when the damage caused is the result of an exceptional, unforeseeable event, external to the person responsible, and for which the individual could do nothing to prevent it (for example, a natural disaster, fire, etc.)
- The fault of the victim can be taken into account to exclude or limit compensation for his damage (for example, the victim did not apply the security measures given by the management).
If this fault of the victim fulfills the conditions of force majeure (unforeseeable, and irresistible), the person responsible for the damage will be totally exonerated from his responsibility.
In other cases, the judge may take into account the seriousness of this fault to more or less mitigate the responsibility of the person responsible.
- The act of a third party: this is a foreign person, other than the victim or the person responsible. If this fact has the same characteristics as force majeure, it will also fully exempt from any liability.
II) How to act to implement this responsibility and see its damage repaired:
When the compensation is due, it must be full, which means that all the damage must be repaired, without this impoverishing or enriching the compensated victim.
Most often, compensation is made by equivalent, that is to say by the payment of a sum of money (damages) to the victim to compensate and repair his damage. More rarely, the repair can be done in kind: for example, replacing or rebuilding something that would have been destroyed. We are going to put things back in a material way. Tort law
To be compensated in tort, it is necessary to take action before the civil courts. Depending on the estimated amount of compensation, the procedure will be before the district court (less than 10,000), or the district court (more than 10,000)
Advice : in order to estimate your compensation as well as possible, it is advisable to call in professionals: jurist, lawyer, doctor, experts… These various remedies obviously have an additional cost to the legal procedure, but they can increase your costs. chances of obtaining fair compensation. The presence of a professional allows you to be relieved during an often impressive procedure.
The medical expert knows your medical past and the prejudices you have just suffered, the lawyer knows the procedure and its progress, as well as the legal news concerning your prejudice, and can also oppose the use of certain techniques that he considers unsuitable. In other words, he assists you in general throughout the procedure.
If you would like more details on the calculation of compensation, you can refer to the article “Compensation of the crime victim” which deals with the existing calculation methods.
IMPORTANT: the lawyer is compulsory if the procedure takes place before a tribunal de grande instance.
Tort law: Compensation for damage
If the damage suffered is related to a criminal offence (damage suffered as a result of willful violence, or theft, etc.), it is possible to become a civil party: you will obtain compensation from the criminal court, responsible for sanctioning the responsible for his prohibited behaviour. For more information on compensation when you are the victim of a criminal offence.