What is the impact on the prescription delay when the consolidation date not set by the medical expert?

Cass. 2^ème civ, February 10, 2022

The consolidation date, corresponding to the date of stabilization of the victim’s condition, is a key notion in personal injury compensation. It permits to distinguish temporary and permanent damages and is also considered as the starting point of the limitation period to bring a claim for compensation.

If the consolidation date, as a medical concept, is in practice set by a medical expert, what happens in the absence of such a determination?

On February 10, 2022, the second chamber of the Court of Cassation made an interesting decision which reaffirm the discretionary power of the judge to determine the date of consolidation and which impact on the statute of time limitation.

In this case, the claimant was victim of a traffic accident at the age of 3, in 1985. A previous decision had ruled on compensation for his injuries in 1994. Several years later, a new medical assessment was ordered by the judge. The expert submitted his report on May 15, 2002.

The particularity of this case lies in the fact that the determination of the date of consolidation was not part of the missions entrusted to the expert, who had therefore not expressly deal with this issue.

On May 18, 2015, the victim, who was placed under guardianship, sued the insurer of the vehicle and the driver and claimed additional compensation. The Court of Appeal ruled that the claim was time-barred, considering that more than ten years had elapsed between the filing of the judicial expert report and the initiation of the legal proceeding.

The victim appealed to the French Supreme Court and criticized the previous decision for having judged that his claim was time-barred, although the medical expert’s report did not indicate a date of consolidation. He claimed that the time-limitation delay could only begin to run once its starting point had been notified and acknowledged by the victim, and that, failing this, no time-limitation could be invoked against him.

The Court of Cassation, after recalling that the legal claim for compensation of a personal injury is prescribed by 10 years from the consolidation date, referred to the reasoning adopted by the Court of Appeal.

The latter had indeed noted that the expert’s report mentioned that “the victim’s sequala condition was not likely to evolve favorably after the date of the expert’s examination and that it does not appear that this condition has worsened since then“. The Court thus concluded that these findings of the expert allowed the victim to understand that the consolidation had been achieved and set the starting point of the prescription period at the date of notification of the expert report, (namely May 15, 2002).

The Court of Cassation referred to the sovereign discretion of the trial judges and dismissed the appeal.

This reaffirmation of the discretionary power of appreciation of the judge and of the freedom he/she has regarding the medical expert report is always appreciable. This principle has been established by case law (for example: Cass. 2^ème civ, September 17, 2009 – n° 08-15.113). The judge is in no way bound by the opinion of the medical expert and remains free to rely on his/her own assessment.

In line with this discretionary and casuistic approach to the dispute submitted to it, the solution of the Court of Appeal, validated by the Court of Cassation, fixing the starting point of the limitation period at the date of filing of the report, seems rather pragmatic.

In this case, the opposite solution would have had the effect of indefinitely delaying the starting point of the limitation period, or even leaving it to the goodwill of the victim, who neglected to have recourse to medical expertise to determine the date of consolidation.

While the relatively long ten-year statute of limitations is primarily intended to protect the victim and facilitate compensation, the victim shall remain careful and proactive.