Compensation for Extrapatrimonial Damages in Vegetative State

Extract

[...] The Constitutional Council refused to admit it in a decision of 21 March 2018 (on the law of 29 March 2018). It seemed unjust then that victims in a vegetative state were excluded from this principle. The judges' reflection is logical here: as the victim's prejudice has been recognized, all its aspects must be repaired. This therefore includes the moral prejudices (in this case, the prejudice of enjoyment (the impossibility of practicing a specific activity) and the aesthetic prejudice) of the person. The Court therefore clearly states that the victim's state of unconsciousness does not excludeany head of compensation ». [...]

[...] It does so here by affirming that the prejudice cannot be refused to a person in a vegetative state because one must ignore their state of unconsciousness. It argues in fact that "the vegetative state of a human being [excludes] no head of compensation ». It also renders a ruling on the same day that overrules a decision that had refused to recognize the compensation of a victim in a vegetative state. This decision therefore also harmonizes the jurisprudence of the courts of first instance, which had a different position. The decision therefore does not take into account the victim's unconsciousness. [...]

[...] The victims will therefore not be able to appeal to the cassation court because they consider that the compensation for their damage is too low (or conversely with the defendant). In fact, the Court of Cassation judges in law and not in fact. The Court also separates itself from the scientific matter with this decision. In fact, the debate rested on the fact that there was no scientific consensus on whether people in a vegetative state were aware of their state or not. [...]

[...] He concludes by supporting that the vegetative state of the victim does not allow her to feel the damage of pleasure and the aesthetic damage and that they therefore do not call for compensation. The Court of Cassation must then decide how to compensate for the moral harm suffered by a victim who does not necessarily feel its effects. By a judgment rendered on February the Court of Cassation reverses its jurisprudence and holds that the vegetative state of the victim does not exclude a head of compensation. Thus, all the harm suffered by the victim is repairable. [...]

[...] For this, some authors recommend that we should turn to a hierarchy or a delimitation of moral damage in order to offer a better readability and legal security and avoid excesses. Of course, this hypothesis only applies if the person has no chance of 'waking up'. In addition to being based on the principle of integral repair of the damage, the Court makes its decision because it goes in the direction of the objectification of the damage, which is positive for the victims. [...]