Decision of the Cour de Cassation of 15 December 2022 no. 21-16.712 – No obligation to mitigate losses

by | 15 Feb 2023

This principle, which has long been recognized in French case law, was recently reiterated by the Cour de cassation: the victim is not obliged to minimize his or her loss in the interests of the person liable.

In this case, a person was involved in a traffic accident while riding as a passenger on a motorbike. The permanent after-effects of the accident meant that she could not squat or carry heavy loads, and was restricted to standing. However, the Court of Appeal limited the lifetime third-party assistance to an average of 20 hours a year, ruling that, with regard to grocery shopping, “the frequency of shopping can be increased to break up the carrying of heavy loads and reduce the time spent standing in the aisles” and that “home delivery services are offered by a large number of professionals, including in the food industry“.

On the grounds of the principle of full compensation of the damage without loss or profit for the victim, the Cour de cassation censured this reasoning, pointing out that “the victim of a damage is not obliged to limit it in the interest of the person liable“.

Indeed, the absence of mitigation is an essential corollary to the principle of full compensation for loss, which implies restoring as exactly as possible the balance destroyed by the damage and putting the victim back in the situation he or she would have been in had the harmful event not occurred.

Requiring a victim to do their shopping more often or to do it online, when they were not doing so before the harmful event, would directly contravene this fundamental principle of compensation under French law.

A victim is therefore never required to improve his or her physical condition or economic situation, or to compensate for his or her disability in the interests of the defendant, and this can never restrict his or her right to compensation.

For example, compensation is not limited if the victim

  • stops his antidepressant treatments, contributing to the worsening of his state of health (Cass, Crim, 27 September 2016, no. 15-83.309),
  • refuses to move to accommodation adapted to her disability or to fit out a ground-floor bedroom, even though she lives in an isolated two-storey house in the countryside (Cass, 2e civ, 25 October 2012, no. 11-25.511),
  • refuses an outplacement proposed by his employer after having been dismissed from his previous job due to unfitness (Cass, 2e civ, 26 March 2015, no. 14-16.011).

This is a welcome reminder from the French Cour de cassation, at a time when some legal and insurance professionals would like the legislator to adopt a principle of mitigation of loss, as it exists in certain Anglo-Saxon countries.