Personal injury, prior condition and compensation

Life is not a long, quiet river, and it is common for a person to have one or more accidents, however minor, in the course of his or her life.

It is also common to be prey to recurrent pains, such as back pain, neck pain, joint problems, knees, shoulders, etc., because of one’s work for example.

This is what the previous state represents.

Thus, the prior condition is represented by a characterised pathological predisposition, including disorders or ailments, whether known or latent, which an individual has and which existed prior to the accidental event which resulted in personal injury.

But then, in the event of an accident (traffic, sport, work, medical or criminal liability, etc.), what about taking this prior condition into account? Does the previous condition systematically reduce or even exclude the right to compensation?

In principle, the answer is no.

Indeed, the fundamental principle of compensation for personal injury is that of full compensation for the damage suffered.

Therefore, if reparation cannot compensate the damage resulting directly from the harmful event, to the exclusion of after-effects attributable to a known prior condition; on the other hand, the right to compensation cannot be reduced because of an unknown pathological predisposition, where the resulting condition was only caused or revealed by the accident.

The difficulty is to determine whether or not the latent pathology revealed by the accident would have inevitably manifested itself, even without the occurrence of the harmful event within a foreseeable period.

This is the main difficulty linked to the previous state of expertise, particularly in the context of amicable expertise carried out by insurance companies.

Insurance experts often refuse to consider that the previous condition may have been revealed by the accident, and although they are unable to determine a time frame within which this condition would have manifested itself, they consider that the resulting pathologies are not attributable to the accident suffered.

In these cases, the judicial route allows for a much fairer analysis and, consequently, full compensation for the damage suffered.

Thus, under the terms of a decision well known to those familiar with the subject, the Court of Cassation was able to decide that the victim whose accident had revealed that she had previously suffered from Parkinson’s disease should be compensated in full for this pathology, the experts having specified that it was not It is not possible to say how soon this disease would have occurred. (Civ., 20 May 2020 n° 18-24.095)

Thus, the notion of prior status is part of any expertise, whether it takes place in an amicable or judicial context.

This notion takes the form of questions asked to the victim about pathologies he or she may have suffered, or accidents he or she may have already been involved in. But also, of recurrent pain that she might feel.

The previous condition can also be assumed from the medical file or the victim’s previous habits: regular consultation of a psychologist or psychiatrist (psychological previous condition), an osteopath (back, neck or other pain), or any other health professional.

On the basis of this analysis, the medical expert will have to determine and identify whether or not the victim had a previous condition before the accident.

If so, it will have to determine which of the after-effects and pathologies described by the victim are likely to be directly linked to the accident or, on the contrary, which are unrelated to it.

As a matter of principle, after-effects not directly related to the accident will be excluded from compensation.

On the other hand, after-effects relating to a previous condition, revealed or aggravated by the accident, should be compensated.

The role of the medical expert is therefore fundamental in expert appraisal, since it is ultimately up to him to decide whether or not to accept this imputability.

However, if the victim is not assisted, it is easier to exclude this imputability, particularly in the context of an amicable expert assessment.

This is why the role of the recourse doctor and the lawyer in the expertise is essential, in order to defend the victim’s interests and avoid, as much as possible, that the imputability of after-effects resulting from a previous condition be systematically excluded.

The question then arises as to what evidence is required to show that the sequelae resulting from a previous condition were caused by the accident.

Several hypotheses exist, under which it will be essential to prove that the previous condition was aggravated by the accident, or that it transformed its nature.

Thus, if theaccident played a roletrigger“In the decompensation of the previous state, or transformed its nature, the resulting damage must be compensated because the accident had the effect of disrupt the balance that had previously inhibited or limited these predispositions and the causal link is reported.

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For information purposes, the term decompensation refers to an aggravation.

This is the case for example in psychiatric matters. A victim may indeed have a fragility, otherwise well “compensated” by his daily life, his work, his family for example, which would collapse following an accident which would have deprived him of the very framework of life that maintained his balance.

But this applies to any pathology, which could be “compensated” by sport for example, as may be the case with some diseases that require regular physical activity to prevent the worsening of symptoms.

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The third hypothesis is that the previous condition was previously unknown, i.e. latent, and was revealed by the accident. (for example : Cass. crim., 29 Feb. 2000, No. 98-84840; Civ 2e, 4 Jul. 2002, No. 01-02.408; ^Civ 2e, 13 Jul. 2006, No. 04-19380; Civ 2^e, 12 Jul. 2007, n° 06-13455; Civ 2e, 8 Jul 2010 n°09-67592).

However, what is particularly interesting is to note that while it is particularly difficult in the case of amicable expertise to have the imputability of after-effects linked to a condition prior to the accident accepted, the Court of Cassation, on the other hand, goes further.

Indeed, the damage may be recognised as a full right to compensation, even in the absence of a direct and certain scientific link between the harmful event and the decompensation of a previous condition.

In practical terms, this means that in the event of a prior condition revealed by the accident, and in the absence of a scientific link between the accident and the appearance of this latent prior condition, there is nevertheless a legal causality insofar as the accident has, in any case, contributed to this event.

The effect of the accident, despite the uncertain scientific link, was to help transform an unknown condition into a certain medical reality for the victim.

It will therefore be necessary for the victim’s counsel (recourse doctor and lawyer) to ask the expert to investigate whether the harmful effects of the pathology were known and documented before the date of the accident.

If not, in the absence of a manifestation of the previous condition, of medical documents related to it, the previous condition will have to be considered as attributable to the appearance of the harmful effects of this previous condition, which had been latent and unknown to the victim. And this in full.

As mentioned, experts often consider, in order to exclude compensation for sequelae related to the previous condition, that the latter would have manifested itself in the longer or shorter term.

However, in the absence of being able to set a precise time limit, the case law is constant and considers the manifestation of the previous condition and its consequences to be attributable to the accident.

Although this is the principle laid down in the case law, many difficulties persist in expertise.

Medical experts consider it “unfair” to attribute the damage resulting from a condition prior to the traumatic event, when from a scientific and medical point of view, it is reasonable to think that the latent pathology would have manifested itself independently in the more or less long term.

Nothing unfair, however. This rule was enacted in order to put an end to dead-end debates, often resulting in disagreements between the doctors themselves: is it certain that the pathology would have awakened spontaneously? and if so, how soon? Several months? Several years?

Assuming that a precise date can be established, in what form would the earlier state have manifested itself? Would it have manifested itself in a brutal way, or rather gradually? What percentage of sequelae would have resulted? etc, etc….

It is in view of the prospect of insoluble debates, the outcome of which would ultimately be just as scientifically uncertain, that case law has established the principle of certain imputability in this case.

Any defence based on hypothetical elements is de facto rejected by the case law, so as not to deprive the victim of his or her right to compensation, or to reduce the quantum on the basis of uncertain arguments.

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Finally, the notion of prior condition imposes a somewhat different analysis in terms of medical liability, since, as a matter of principle, the intervention of a health professional for whom liability is sought presupposes the existence of a pathology that justified calling upon him.

Medical liability requires proof of fault.

However, it happens that the fault may be based on the existence of the patient’s previous condition.

This is particularly the case with regard to the lack of information: the patient’s previous condition must be taken into account by the doctor in order to be able to inform him/her of the particular risks that he/she faces in view of his/her history.

A doctor who does not ask the patient about his or her previous condition and fails to inform the patient of the risks associated with it is therefore at fault.

The fault may also be due to a technical act related to the previous condition.

Indeed, the doctor commits a technical fault of diagnosis, prescription, therapeutic choice, follow-up, when he chooses an inappropriate treatment because of the patient’s previous condition.

It is also permissible for the patient’s previous condition to develop unfavourably.

It will then be necessary to know whether or not this development is linked to the medical act performed, in order to demonstrate imputability. The principle of demonstration will then be identical to what has been developed above on questions of imputability.

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In conclusion, any previous condition that is aggravated, modified or revealed by the accident should, as a matter of principle, be considered as attributable and the resulting sequelae should be fully compensated.

This is the principle, which will not be easy to apply, particularly in the context of amicable expertise.

For this reason, the assistance of a lawyer and a recourse doctor will be more than essential, and recourse to legal action may be indispensable.