Case:
D. 1967, 3 Case Erhard v. Bennoun Subsequent developments
Date:
12 May 1966
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Cour de cassation, Deuxième Chambre civile

The Court:

Given that Mlle Erhard criticises the decision under attack (Paris, 31 January 1964) on the ground that, after holding that Bennoun was entirely responsible for the accident in which she, now Mme Lucas, was injured -- a holding which is now res judicata -- it fixed the damages without making any allowance for the fact that she had had to give up her allegedly intended career or inquiring whether prior to the accident she had the qualities required for embarking on that career;

But given the finding that at the time of the accident Mlle Erhard, aged nineteen, had just failed the first part of the baccalauréat, and that her eventual career as a pharmacist, which she was very far from having embarked upon, was purely conjectural; Given that after finding that Mlle Erhard had not completed her secondary education and had just failed the first exam which would mark its completion the court below determined that she had not undertaken any of the special preparatory studies for that profession, the judges of fact could rightly hold that she could not complain of having been deprived of the benefits of a career which were purely conjectural, and that therefore she was claiming for harm which was uncertain and insusceptible of compensation;

From which it follows that the criticism is baseless;

For these reasons DISMISSES the application for review.

Doctrine upheld. Cf. Jurisclasseur (already cited): It is certain that future loss can be indemnified, provided its occurrence is undoubted. Secondly, there is no doubt that contingent loss (called also hypothetical) cannot be indemnified. The reason is that, by definition, this loss is the opposite of certain loss. But the distinction between what is certain and what is not is sometimes difficult to make; thus, the problem of lost opportunity can give rise to varying results, which, indeed, have varied in time. Logically, lost opportunity falls between certain loss and contingent loss. Case law was at first unfavourable to indemnification, on the grounds that the loss was a matter of chance, since an opportunity can never be certain. Then, with the introduction of the reasoning of the insurance industry, the loss of an opportunity was gradually accepted by the courts. (Cass Req. 17 July 1899), extending into many areas. If it is the case that the loss of opportunity is a type of loss which is subject to indemnification, it is also important that such loss be not merely hypothetical. Consequently, the courts must be sure that, on the one hand, if the event in question had not occurred the future gain hoped for by the victim could have materialised, to use the expression sometimes appearing in the cases, that the vanished opportunity was “real and serious” (Civ.2, 3 Nov. 1971, Cass Full Court 3 Jun. 1988), and, on the other hand, that there is a chain of cause and effect between the event creating liability and the loss (French “part” which seems to be a misprint for “perte”) of opportunity (Civ.1, 10 Jan. 1990, Bull I, no. 10). Putting the matter differently, the courts indemnify the victim when a situation which is advantageous for him involved an uncertainty of which the action of the third party caused the disappearance, and, as a result, the opportunity of censure or of seeing the realisation of a beneficial situation. The cases are most numerous in the area of the loss of an opportunity of professional success: loss of the opportunity of passing an examination by reason of an accident preventing the candidate to sit the examination, and so to launch himself into a lucrative career (Crim., 24 Feb. 1970 and 23 Feb. 1977, Bull. Crim. No. 73, Soc. 28 Feb. 1973, Bull. V, no. 126 and 9 July 1986, Civ.2, 9 Nov. 1983, Bull. II, no. 175, 17 Feb. 1961, Bull no. 100, 27 Feb. 1985, Bull. II no. 52), to obtain a promotion in a professional body (Civ.2, 9 Jul. 1954, 20 Dec. 1966, 31 Jan. 1974: Bull, no. 38, Crim., 18 March 1975: Bull Crim. No. 79, 9 Dec. 1980) …. If one attempts to systematise the cases, the criterion seems to be that the hoped for advantage should have come about in a short time: the candidate satisfied the conditions to sit the examination or competition, or to apply for the coveted position; the promotion should have come about very soon. Proof of the opposite is supplied par the cases which refuse to indemnify the loss of a hope which is too far removed not to be hypothetical: a “student” of 39 years of age, with no other professional activity than the drafting of a doctoral thesis, cannot claim indemnification for the impossibility in which he finds himself to embark on a lucrative career by reason of an accident (Civ.2, 10 Oct. 1973, Bull. II, no. 203); similarly, the hope of obtaining a new job after being put into retirement has been considered too uncertain (Crim., 23 Nov. 1971).

Note: this analysis coincides with that of the commentator of the decision of 12 May 1966; the doctrine laid down by the decision cited at the head of this note does not seem to have been contradicted later, the main criterion of assessment of the harm being always based on the element (necessarily relative, it is true) of “necessary proximity” to the hoped for advantage, or, as in this case, of “sufficient certainty” of the obtention of this advantage. Thus, confirmation of this doctrine can be found in the decision of 9 Nov. 1983, already cited, (Civ. 2, Bull. II, no. 175), which quashed for lack of legal grounds “… a judgement which, in order to allocate to the victim of an accident, aged 9 at the time of the latter, not only damages designed to compensate in particular his partial permanent incapacity, but also an annuity to compensate for the loss suffered by reason of the loss of an opportunity to enter a well-paid profession, finds that before the accident the victim was a good pupil at the primary school and that, as the last child of a family with four children, could continue his studies, encouraged by helpful parents, whereas after the accident his school results had become completely insufficient, because he could not give sufficient interest and attention to what he did and that the consequences of the accident prevented him from entering into a specialised manual job, without setting out to what extent the opportunity in question was certain and directly linked to the event which caused the harm”.

Two later decisions of the same Chamber have refined, and added precision to, this doctrine. A decision of 14 Oct. 1992 (Civ. 2, Bull. II, no. 241) states that “a decision is to be quashed if it evaluates the economic loss suffered by a widow and children of a person killed in an accident on the sole basis of the revenue for tax purposes of the deceased and his wife at the moment of death, and refuses to take into account a possible promotion of the deceased without enquiring whether the admission of the latter, shortly before his death, to the scale of remuneration of certified teachers could have an effect, if only by reason of lost opportunity, on the evaluation of the economic loss” while a decision of 7 Feb. 1996 (Bull. II, no. 241) approves the fact that a court of appeal, while taking note of the limitation of later professional choices affecting a child of 2 years injured in the eye – and assessing the harm so caused – nevertheless does not admit the certain loss of professional opportunity as a head of damage. The Criminal Chamber (Bull. Crim. no. 103, 11/03/1986) has also held that “It is true that the loss of the opportunity to improve the resources of a salaried employee by means of the creation of a business may give rise to damages; but it is also true that the very existence of this opportunity, prior to the event causing loss, must not be doubtful” and (Bull. no. 455, 04/12/1996) that “the element of damage which consists of the loss of an opportunity is direct and certain each time it is found that, by reason of the breach, the probability of a favourable event has disappeared, although, by definition, the realisation of an opportunity can never be certain”, and quashed a decision which, “in order to reject the claim of a victim, a teacher, for indemnification in respect of the loss of opportunity arising from a monetary deficiency relating to her pension, proportional to the increase of an index to which she claimed to be able to aspire, states, without further explanation, that this head of damages, linked to the “loss of promotion privileges”, is hypothetical”.

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