The third party: how to evaluate & compensate him

A victim of a road accident who becomes disabled as a result of a physical injury will experience a real shock. Emotional shock, no doubt, but also physical… How to face the past, now disabled, to continue to live with dignity? This will inevitably require the intervention of a third party who will come to help the victim, the child or the adult in this matter; it is an intervention of a third party. This element of trauma is therefore an element to be assessed and will certainly be more important for the most dependent people, such as head injuries, spinal cord injuries, etc. The consequences and injuries of the victim, leading to a partial or total loss of autonomy, cannot go uncompensated.

Victims who have suffered extremely serious consequences should seek assistance from a third party in their daily activities. This is therefore a very important element of a claim, which should not be underestimated, as insurance companies, guarantee funds (in the absence of civil liability insurance) and even French nationals (foreign insurers) will not hesitate to regularly underestimate this position, which is costly to them.

According to the principle of full compensation for the damage suffered by the victim, negotiations must be conducted, i.e. the victim must be in the same position as before the accident.

Second, the victim who has been paid a high wage for the work may consider performing tasks that he or she can no longer perform. For example, with the help of a third party, a quadriplegic person can perform all necessary daily care, and can even get out of the vehicle by auxiliary means of transportation.

But how do you assess the needs of personal injury victims as a third party?

A personal injury lawyer, especially for car accidents, will be your guide, your helper, and even your negotiator because they have two powerful hats:

– the first is the subtlety of the “conductor” in terms of professional knowledge and evaluation of human injuries.

– the second is the role of “actor” when negotiating the position out of court, or when a dispute arises when submitting the case to the judge.

Thus, a personal injury attorney is the ”commander” of the third-party needs assessment process for car accident victims.

Some medical expertise (friendliness or justice) must be possessed, as everything will be derived from this expertise. Moreover, this expertise is prepared in advance with your lawyer and your medical advisor. The greater the damage to health, the greater the risk of misunderstanding and therefore of disputing the assessment of the third party’s position on the damage. In addition, often with serious injuries such as head trauma, amputation, paralysis of the lower limbs, quadriplegia and other paralysis, the victim is quickly referred by his or her personal injury lawyer to court proceedings for forensic examination.

Thereafter, an expert doctor will be appointed, and at this crucial stage, your medical adviser and personal injury lawyer will negotiate every element of the claim and therefore a third party position to compensate the damages. There are very significant financial rates which require particular vigilance and knowledge experience.

Your personal injury lawyer, the “conductor” of the medical examination organization, will be very attentive to its progress. Beforehand, your personal injury lawyer will give you a “personal injury questionnaire” which is supposed to contain most of the questions that are likely to be asked by the victim’s medical advisor and of course the medical expert who will be appointed.

This questionnaire is essential because it will allow you to collect useful supporting documents but above all to think about the different “invisible” damages and to list them before even consulting a doctor. Prejudices and other invisible disabilities are those which are not visible by definition (change in behaviour, anxiety, post-traumatic stress, pain of the invisible limb, aches…).

Still before the medical examination, the victim’s lawyer will organise a consultation before the examination, with his own victim adviser, the same one who will assist the road accident victim on the day of the medical examination. In this respect, the lawyer will ask the victim to collect a certain number of medical documents (X-rays, scans, initial certificate, medical certificates, intervention reports, etc.) which he or she will give directly to the victim’s medical advisor.

This upstream consultation will allow the consulting physician to get to know the victim, to understand the evolution of his or her “illness”, to diagnose all of his or her prejudices in order to be able to defend his or her position on the day in front of the medical expert.

Thereafter, a medical expertise will then be set up and the victim will then be summoned by the expert doctor.

As you will have understood, it is unthinkable that this victim would go there without a medical consultant and a lawyer who understands the mechanisms of personal injury assessment.

The expertise is more or less long depending on the severity of the injured victim’s after-effects but, in any case, too short to evoke the symptoms in an always technical dialect, without the help of the victim’s medical adviser and the specialist lawyer.

The lawyer, present at the medical examination, will see his role as observer or “conductor” evolve according to the bodily injuries assessed.

The injured party position is one of the positions in which the personal injury lawyer is most active.

His past experiences, his perfect mastery of legal and other notions will enable him to negotiate directly with the medical expert the item of assistance to a third party for his evaluation which is, let us remember, one of the most prejudicial items. discussed and refused by the insurance companies and the guarantee fund.

Also, the lawyer will not hesitate to raise various technical issues, all related to the evolution of court decisions in this area (case law on personal injury).

Often, the family of the injured victim has a central role, mainly for moral support but also for the help they provide to the injured victim (shopping, hygiene, meals, clothes…). This valuable help must of course be considered as assistance to third parties. The Court of Cassation has had occasion to specify that her free service does not allow the insurance company to compensate her despite everything.

In a road accident case, a victim had then sought compensation for the item of third party assistance but the court of appeal held that as her children were already providing her with assistance, the item could only be partially compensated. .

The Court of Cassation reversed the reasoning, stating that “in application of the principle of full compensation, the amount of compensation awarded for the assistance of a third party cannot be reduced either in the case of family assistance or in the case of the organisation of an adult protection measure”.

Sometimes, too, there is this tendency to want to systematically replace human assistance with new technologies such as home automation or the like, and this is not in the injured victim’s favor.

The personal injury lawyer will not hesitate, in the most delicate cases, to seek the intervention of an occupational therapist in order to refine the needs of the injured victim. It is therefore in this context that the loss item related to the assistance of a third party will be evaluated.

There are two periods to be distinguished: that between the day of the accident and the day of consolidation & that from the date of consolidation.

The number of hours is important but not the only one. The qualification and type of assistance provided by the third party are also essential.

Does the victim need medical, administrative or other assistance? Should this assistance be active, passive (simple presence), medical, safe? Should this help be multidisciplinary (several people with different qualifications)?

In any case, the injured victim’s lawyer may, in the case of forensic expertise, when he receives the preliminary report from the legal expert, make a “note”, i.e. make final observations before writing the final report.

The hourly rate for third party assistance is also of major importance and will be negotiated later. The charges must of course be calculated and this rate must then correspond to the reality of the labour market and the qualification of the helper. This hourly rate will be negotiated directly by the victim’s lawyer with the life and health insurance inspector or the insurance lawyer.

With the hourly rate set, the number of hours adjusted, the victim and his or her attorney will have the cost of the human assistance set annually if the negotiations go well.

If not, a judge’s intervention will settle the procedure and in any case, this annual cost will have to be capitalized on a pension rate set according to the victim’s age.

The assistance of a medical consultant and a personal injury lawyer in the compensation of the third party assistance item is not an option, but an obligation.