Archive for the ‘cross border accident’ Tag

MH17 Crash: Some Legal Questions Answered

For LSA, the Dutch Association of Personal Injury Lawyers, Antoinette Collignon has answered some frequently asked legal questions further to the crash of Malaysia Airlines flight MH17. The Dutch text can be found on www.lsa.nl.

Anyone involved in a crash like Malaysia Airlines MH17 on 17 July 2014 suffers beyond description. So far there are no indications that the aircraft had mechanical failures. It seems that the plane was shot down by pro-Russian rebels using arms supplied by Russia. The investigation into the crash, the recovery and repatriation of the victims are highly complex and sensitive subjects. Just as complex and sensitive is the settlement of the loss already sustained and still to be sustained by the surviving relatives. Based on the information available at the time of writing – 26 July 2014 – experts have answered nine questions of law that have come up.

1. Could Malaysia Airlines Be Held Liable?
Under the Montreal Convention, which provides for strict liability in civil aviation, Malaysia Airlines will be required to pay damages up to 113,100 SDR (around EUR 120,000) for each passenger. It is irrelevant whether Malaysia Airlines is to blame for the crash. The surviving relatives will have to demonstrate the loss. In addition, Malaysia Airlines will be liable if it is found to be at fault. However, without an independent investigation it is impossible at this point to determine whether the airline is to blame. Claims must be filed within two years of the crash or they will lapse.

2. Which Law Applies?
The Montreal Convention does not contain any rules on the law governing the travel agreement and the requirement to pay damages. A European court will apply Regulation EC/593/2008 on the law applicable to contractual obligations (Rome I). Article 5.2 of that Regulation stipulates that if the law applicable to a contract for the carriage of passengers has not been chosen by the parties the law applicable will be the law of the country where the passenger has his/her habitual residence, provided that either the place of departure or the place of destination is situated in that country. This means that for most Dutch victims of the crash the contract for their carriage is likely governed by Dutch law. For non-Dutch nationals the applicable law should be determined on a case-by-case basis.

3. What Do the Claims for Damages of the Victims’ Families Cover?
If Dutch law applies, the claims for damages consist of so-called loss of dependency (costs of repatriation, funeral, etcetera), and loss of earnings (if, for instance, one of the family’s breadwinners or the sole breadwinner has died). It is difficult to compute the loss as allowance should be made for variable and fixed costs, among other things. In some cases it is possible to claim non-economic damages if the victims’ families sustained psychological damage when confronted with the crash. Emotional loss (bereavement following the loss of family members) cannot be claimed (yet) as the Upper House  (Senate) rejected the legislative proposal in 2010.  At the time of writing the government is working on a new proposal for compensation of emotional loss. If not Dutch law applies, but the law of another country, it is possible to claim not only loss of dependency but also non-economic damages following the loss of a family member.
4. Could the Separatists Who Downed the Plane Be Held Liable?
If it is determined that separatists have shot down the plane, Dutch law allows for claims under civil law against individuals for the damage they have caused. It is irrelevant whether or not they intended downing a civil aircraft. In that case the loss and damage should be compensated in full. There is a possibility that the individuals in question could be prosecuted under criminal law. The Dutch Public Prosecution Service could issue an international arrest warrant. A complicating factor, of course, is that the Donetsk People’s Republic (the state proclaimed by the pro-Russian separatists) is not likely to act on such warrant. The Ukrainian central authorities will also lack the power in this area to help. Theoretically, therefore, it is possible to hold the separatists liable, but success is doubtful. Even if the liable party could be found, it would be difficult to force that party to pay up. It is easier to hold a country liable than a group of rebels. In 1996 the United States, for instance, paid damages to the families of the victims of the Iranian civil aircraft that in 1988 had been accidentally shot down by an American warship.

5. Could Russia Be Held Liable?
At this point there is no definite answer to this question. If it turns out that the Russian political or military powers had direct command and control to down the aircraft, Russia might be held liable. Russia could also be held liable (in part) for supplying the weapons used to shoot down the aircraft. If separatists have used an SA-11 missile it might have been provided by Russia. SA-11 grizzly – so-called double-digit surface-to-air missile (BUK) – developed by Russia is an anti-aircraft system capable of bringing down aircraft from high altitudes. There have been reports that the equipment and the crew running it were provided by Russia. However, a causal connection should be demonstrated between the supply of the system and the crash. Also established should be fault. Although difficult, legally speaking, this is not impossible. The question further arises whether under the law applicable to the crash a government could be held liable. In other words: If Russia turns out to have supplied the weapons used to take down the aircraft, Russia might be held liable.
6. Could the Ukraine Be Held Liable?
This depends on the facts and circumstances. If the investigation reveals that Ukrainian military downed the aircraft, the Ukraine could be held liable. So far there has been no mention of this in the reports. The Ukrainian aviation authorities could be liable if they have given permission to fly over the area at an altitude from which they knew missiles could take down aircraft. This, too, calls for further investigation.
7. Could the Victims’ Families Go to Court to Demand Damages from One of the States Involved?
There are possibilities for the families of the victims to file claims against the states involved for damages to the extent that these are not paid by Malaysian Airlines. It is early days yet to answer this question fully and properly.

8. Which Law Governs Claims against One of the States/Separatists?
This question should be answered under private international law. A Dutch Court will apply Regulation EC/864/2007 (Rome II). The principal rule is the lex loci damni meaning the place where the damage occurred. It could be argued that court should apply Malaysian law as the victims were on board a Malaysian plane governed by Malaysian law at the time when they sustained damage. It could be argued also that the damage occurred outside the aircraft, in Ukrainian airspace. In that case Ukrainian law would apply. Finally, it would be fair to argue that Dutch law applies. Let’s say a breadwinner died in the crash. His or her family in the Netherlands, who relied on the deceased for their livelihood, suffers loss of income. A loss sustained in the Netherlands, although the cause of the loss lies in events in the Ukraine.  The same applies to losses of victims in Belgium, the UK and other EU countries.

9.  Are There Other Potentially Liable Parties?
The investigation might show that there are other potentially liable parties. Examples are companies responsible for making or authorising the flight plans or authorities that have the power to prohibit certain routes. The crash could be due (also) to mechanical failures, which could make the manufacturer liable. As mentioned earlier, mechanical failures are likely ruled out. However, it is too early for definitive conclusions.

Conclusion
The victims’ families could hold Malaysia Airlines liable for compensation of their loss, up to EUR 120,000 approx. per passenger. Any higher amounts can be claimed only if the airline has been found at fault. At this point no fault has been determined and there are other parties that might be held liable. Investigations will have to identify those parties and whether claims can be filed successfully. It is important that the competent court and governing law will be determined on a case-by-case basis. The many victims from various countries and the range of potentially liable parties make for a complex puzzle that can be completed only once the investigation has been concluded.
Let us hope that all parties involved will proceed with the utmost urgency and care to avoid any more suffering for the many affected.

Author: Antoinette Collignon

Extension Powers Claim Representatives in International Traffic Cases

English: Courtroom at the European Court of Ju...

 Courtroom at the European Court of Justice  (Photo credit: Wikipedia)

 

In international traffic cases in Europe involving Dutch vehicles loss and damage may be claimed from the representative of the foreign liability insurer in the Netherlands (claims representative) under Directive 2009/103 (the fifth Motor Liability Insurance Directive). The claims representative will settle the loss further to applicable law.

 

Although most cases are settled, some call for litigation. In that case there are several options. Under Brussels I  (EC Regulation 44/2001) a person sustaining damage can sue the insurer of the liability party in the country where the liable party resides, where the insurer has its registered office, in the country in which the accident happened or in the country where the victim resides.

 

So far the writ of summons was served through the competent authorities at the office of the insurer established abroad. Service abroad takes time and money. Service at the office of the claims representative is not possible as the adjuster is usually not authorized to take receipt of services and notifications. See, for instance, Court of Rotterdam, 23 September 2009, JA 2010,12.

 

A recent ruling of the European Court of Justice of 10 October 2013, C-306/12 (Spedition Welter/Avanssur) changed this.  The Court of Justice held that the writ of summons can also be served at the office of the insurer’s representative.

 

The case concerned a traffic accident that occurred near Paris on 24 June 2011, in which a lorry was involved of Spedition Welter, established in Germany. The French vehicle causing the accident was insured with the motor insurance liability insurer Avanssur established in France. Spedition Welter went to court to claim compensation. The writ of summons, however, was not served on Avanssur in France but on the representative designated by Avanssur in Germany, AXA Versicherungs AG (hereinafter: ‘AXA’).

 

The court in first instance held that the claim was inadmissible as the writ of summons had not been lawfully served on AXA as the latter was not authorised to take receipt of services and notifications.
Spedition Welter filed appeal with the Landgericht Saarbrücken. According to the Landgericht admissibility was decided by the interpretation of Article 21.5 of the Motor Insurance Liability Directive. For that reason the Landgericht submitted the case to the European Court of Justice.

 

Article 21.5 of the Directive says, in summary, that  claims representatives should possess sufficient powers to represent the foreign insurer and meet claims in full.  The article does not define the extent of those powers.

 

The European Court of Justice puts first and foremost that in determining the scope of an article its wording, context and objectives should be considered.  The objective of the Directive was to make it easier for victims of accidents to take action and to enable them to file claims in their own languages and countries.  The preamble to the Directive (paragraph 37) shows that Member States should ensure that claims representatives have adequate powers to represent the insurance undertaking in relation to persons suffering damage, before national authorities including the courts, insofar as this is compatible with the rules of private international law on the conferral of jurisdiction.

 

The European Court of Justice therefore reached the conclusion that Article 21.5 of the Directive should be interpreted to mean that the powers of the claims representative include taking receipt of court documents required to file a claim with the competent court.

 

This implies that in international traffic accidents in which the fifth Directive applies Dutch victims deciding to litigate in the Netherlands can now simply serve the writ of summons against the foreign insurer at the office of the Dutch claims representative.  For Dutch representatives this means an extension of their powers.

 

New Dutch International Private Law (general principles)

If a client in a cross border case decides to issue proceedings in the Netherlands it is important to know which private international rules a Dutch court will apply. After all these rules determine which country’s law should apply.

The new Book 10 of the Dutch Civil Code  includes a number of general principles (Articles 1-5), and articles that can correct the initial referral result (Articles 6-9). Articles 10-14 contain a number of important legal concepts such as choice of law and form of legal acts. Finally, there are some provisions relating to the nationality of a person and the personal status of a refugee (Articles 15-17).

All these rules are common rules which Dutch courts already applied but which are now codified.

Article 1: Priority of regulations of international and community law
For example, in article 1 priority of regulations of international and community law over national rules is included. Although this seems unnecessary, the minister of Justice was of the opinion that it was desirable to codify this principle. It would be useful for lawyers and would provide clarification. Furthermore it is also included in many foreign codifications of private international law.

Article 2: Application ex officio
Article 2 provides that rules of private international law and the law designated by rules should automatically apply. The court may, and thus need not wait until one of the parties invokes applicability of foreign law.
In case a judge considers application of another law, while parties have not indicated possible application of this law during court proceedings, he is obliged to give parties the opportunity to comment thereon.
Article 3: Procedural rules
As indicated Book 10 contains no rules of a procedural nature. Article 3 only provides that Dutch law shall apply to the rules of procedure of legal proceedings before Dutch courts.
Article 5: No renvoi
Renvoi is, briefly stated, the practice in which private international law of the forum that was chosen according to the international private law rules of the other country also applies. This could lead to the result that according to the private international law of the chosen forum the law of another country applies. Under Dutch law there is no place for renvoi.
Article 5 therefore states that the application of the law of a State means the application of the rules of law in that State, with the exception of its private international law.

Article 8: General exception
In article 8 a general exception is included. It offers a correction for cases in which application of a rule of conflict is based on a presumed connection which is only limited and where there is a closer relationship another law.
This involves a situation where, given all the circumstances of the case, apparently the presumed close relationship ‘exists only in a very small extent “and” in which another country has a much closer connection.
The law designated by the conflict rule remains inapplicable and instead, the law with which the much closer connection can be used. This article should be applied by the court ex officio. Of course sufficient facts must be stated by parties that lead to application of the exception clause. If the court is considering the use of this clause, and it has not been mentioned during proceedings, parties must be given the opportunity to give their opinion.
The provision only applies to statutory rules and can not set aside regulations of international and community law.

Article 10: Choice of Law
Article 10 provides that where a choice is allowed, this must be made explicitly or otherwise be sufficiently clear.
This rule was developed in international contract law and is for example enshrined in article 3 Rome Convention and Article 3 Rome I. The idea is that parties engaging in international agreements have the freedom
to choose which law they want to apply. In other treaties, such as Rome II (Article 4), the possibility of choice is
also included. It is therefore codification of existing law.

Article 14: Limitation and lapse of claims
Article 14 provides that whether a legal claim has prescribed or lapsed shall be determined pursuant the law applicable to the legal relationship giving rise to such a right or legal claim. This is in accordance with Dutch case law and with prevailing doctrine. (Dutch Supreme Court of 27 May 1983, NJ 1983, 561).

Draft EU directive on patient’s rights on cross border health care

The draft directive is part of the social agenda package of 2 July 2008. It focusses  on a triple goal:

1. to guarantee that all patients have care that is safe and of good quality,

2. to support patients in the exercise of their rights to cross-border healthcare;

3. and to promote cooperation between health systems.

The aim of the second goal is to codify the case-law of the Court of Justice on reimbursement of cross-border healthcare.

More information can be found on:
http://www.consilium.europa.eu//uedocs/cms_data/docs/pressdata/en/lsa/114992.pdf

In January 2011 the European Parliament voted in favour of this new EU Directive.
John Dalli said: “Today’s vote marks an important step forward for all patients in Europe. I congratulate and thank the Rapporteur, Mrs Grossetete, for all her work.”

See also: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/53&format=HTML&aged=0&language=en

The EC has published a Q&A for cross border health care which can be found here: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/32&format=HTML&aged=0&language=en&guiLanguage=en

 

Amsterdam, 26 March 2011

Antoinette Collignon

 

 

 

 

 

 

 

 

Pain and suffering awards in the Netherlands

If you have had an accident in the Netherlands and suffered injuries and provided that there is a liable party from which you can claim damages  under Dutch law one of the questions you will ask yourself could be: Am I entitled to an award for pain and suffering?

According to Dutch law (article 6:95 in combination with article 6:106 BW)  there is a limited right to non-pecuniary damages.  The main source for these damages is article 6:106 Dutch Civil Code. According to article 6:97 Dutch Civil Code the judge is entitled to quantify the total amount of damages suffered .

Where an injured person suffers mentally from the consequences of physical injuries sustained, there are no specific requirements about the degree of seriousness of the mental suffering. If a victim has only suffered psychiatric injury, the threshold is that there is a recognizable psychiatric illness. Annoyance of greater or lesser mental discomfort will not suffice.
There is a wide margin of appreciation deciding on the amount of non-pecuniary damages.  The victim doesn’t need to specify to what extent he suffered non-pecuniary damages nor is he obliged to demand a specific amount. It is however wise to state all relevant facts and circumstances.
The Dutch Supreme Court has set out some basic rules. First of all a judge has to look at all circumstances of a particular case .  More specifically a judge should consider the injuries and the consequences of the injuries on the victims life. The injuries and disabilities are particularly relevant, as well as the age at which the accident occurred. As a rule the more severe the injuries and the younger the victim, the higher the damages awarded for pain and suffering.
Furthermore the judge  has to pay attention to case law in similar cases. This process is simplified by the collection of abstracts in a special edition in the review of traffic law ‘ Verkeersrecht ‘, the ‘ Smartengeldbundel ‘  which provides index-linked awards.  Judges can also refer to awards for non-pecuniary damages in other countries, albeit that the award can no be solely determined on that basis. A judge may also look at the nature of the liability.  There is no  absolute limit on the amount of non-pecuniary damages that can be awarded. There are no caps set by law or baremes. Awards are among the lowest in Europe.

An important thing to know is that a victim should explicitly claim an award for pain and suffering. If he or she fails to do so and dies the heirs can’t claim these damages.

If you need further information about Dutch law on negligence and damages you can contact Antoinette Collignon at antoinette.collignon@legaltree.nl

Amsterdam, 6 March 2011

copyright Antoinette Collignon

Award for damages in the Netherlands

An accident causing permanent injuries has far-reaching implication for a victim’s personal life. If an accident occurs when working or traveling in the Netherlands and Dutch law is applicable damages will be awarded according to Dutch law, even if  the victim lives in another country. The rules for damages are set by law and case-law.

This blog gives a brief description of compensation which can be claimed from the liable party.

Principle of full compensation

The principle of full compensation is the basic principle underpinning the law of damages in The Netherlands.  A person liable shall put the victim – as far as possible – in the position he would have been had the accident not occurred.

Damages

A victim can claim general and special damages.  Special damages, or pecuniary damages are all costs incurred as a result of the accident as well as losses, such as medical expenses, domestic care, travel expenses, costs of nursing and care, change to one’s house but also lawyer’s fees.  A victim needs to substantiate his claim by presenting invoices, bills, salary slips and so on.

Pain and suffering

General damages or pain and suffering are determined by  equity, taking all circumstances into consideration.
 The Dutch Supreme Court has set out some basic rules. First of all a judge has to take into consideration all circumstances of a particular case.  More specifically he should look at the injuries and the consequences of the injuries on the victims life.  Furthermore the judge  has to pay attention to case law in similar cases. This process is simplified by the collection of abstracts in a special edition in the review of traffic law ‘ Verkeersrecht ‘ , the ‘Smartengeldbundel’ which is updated every three years and provides index-linked awards.  Judges can also refer to awards for non-pecuniary damages in other countries, albeit that the award can not be solely determined on that basis. A judge may also take into consideration the nature of the liability.  There is no  absolute limit on the amount of non-pecuniary damages that can be awarded. There are no caps set by law.

The injuries and disabilities are particularly relevant, as well as the age at which the accident occurred. As a rule the more severe the injuries and the younger the victim, the higher the damages awarded for pain and suffering.  The damages awarded for pain and suffering are determined in negotiations with the insurer or by the court if the parties fail to reach agreement. Awards are among the lowest in Europe.

A victim should explicitly claim an award for pain and suffering. If he or she fails to do so and dies the heirs can’t claim these damages.

Lawyer’s fees

A distinction is made between costs of a procedure and the out of court lawyer’s fees.
During negotiations, according to article 6:96 BW costs of legal assistance and other disbursements  are to be compensated in full. They should be reasonable and reasonably made. This means that it should be reasonable to incur  these costs and their extent should also be reasonable.

In case of court proceedings other rules apply. According to article 241 of the Dutch Code of Civil Procedure (Rechtsvordering) legal fees are awarded on a fixed basis. The courts use tables. The awards do not cover the real lawyer’s fees.

Personal injury lawyers generally charge on an hourly basis. They are not allowed to charge on a contingency or conditional fee basis. If liability is accepted this is not necessary as fees are part of damages incurred.

For further information on Dutch law on negligence and damages contact Antoinette Collignon, antoinette.collignon@legaltree.nl

copyright Antoinette Collignon  2011

Cross-Border Traffic Accidents in Europe: Diversity in the EU

Cross-Border Traffic Accidents in the European Union

Introduction

The slogan of the European Union is: Unity in diversity. The E.U. has 27 MS with unique languages, cultures, histories, and legal systems.  Every Member State has different laws on damages, limitation periods and standards for medical evidence.  For lawyers working in the field of cross border accidents it is important to understand these differences.

The answer to the question what happens if a Polish citizen on vacation in the Netherlands suffers a traumatic injury while driving through Belgium is  not so clear-cut.

According to Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (“Rome II”), a victim is entitled to compensation according to the law of the country where the accident occurred unless both parties have “their habitual residence” in another country or another country is “more closely connected” with the tort.

This means that an Italian injured by a Belgian driver on the streets of Belgium will apply Belgian law to her claim.  This scenario has become more common with the growing mobility of E.U. citizens and an increase in the number of cross-border accidents.

This article highlights a few substantive and technical differences in the law of torts as applied to cross-border accidents.

Specialization of lawyers in the field of personal injury law

The development of an experienced and qualified personal injury bar makes a big difference in the enforcement of legal rights of traffic accident victims.  In most European jurisdictions, the degree of specialization in personal injury law is fairly low.  This is not the case in England, Wales, Ireland, Scotland, The Netherlands, France, and Switzerland.

The most formidable European organisation for personal injury lawyers is PEOPIL (www.peopil.com) with members in all member states.  PEOPIL is a non-partisan organisation, focussing on dissemination of  knowledge of personal injury law, networking, access to justice for victims.   The PEOPIL Research Group has published books explaining the central components of personal injury litigation in different MS, and PEOPIL organizes periodic conferences throughout Europe for its members.

Limitation periods
Limitation periods can prevent claimants from obtaining remedies if they act too late after suffering injuries.  There are major differences among MS with respect to personal injury limitation periods.  Not only do limitation periods vary in amount of time, but there are variations as to the beginning of a limitation period, procedural requirements for stopping the running of a limitation period, and application to minors, disabled people, and victims.

In Spain, the limitation period for road traffic accidents is one year. In Italy, there is a 2-year limitation period for road traffic accidents.  Germany has a 3-year limitation period for actions in tort, but claims for pain and suffering have a limitation period of 30 years. Belgium has a limitation period of 3 years as well as a statute of repose with a limitation period of 30 years regardless of when the victim discovered his or her injury.

In all European jurisdictions the limitation period begins to run from the date of occurrence of the damage, which is usually the date of the accident.

In Belgium, the Netherlands, Italy and Spain, it is enough to send the defendant a registered letter with a written warning in which a victim unequivocally claims damages sustained as a result of the accident. It is not necessary to issue proceedings. In England, Wales, Ireland and Scotland, it is necessary to issue proceedings.

In the E.U., courts apply the limitation period of the country where the accident occurred even if the lawsuit is filed in a different MS.  The limitation period is generally considered to be a matter of substantive law except in the United Kingdom where there is uncertainty as to whether a court will apply the UK limitation period, as a matter of procedural law, instead of the limitation period of the country where the accident occurred.

Applying these principles to the hypothetical example, an Italian who was injured by another driver in Belgium and later files a lawsuit in Italy will have her case managed by an Italian court that applies the Belgian limitation period.  The need for lawyers in the E.U. to apply the limitation period of a different member states i.e., where the accident occurred, demonstrates the necessity for a high level of cooperation among lawyers in different jurisdictions.

Protection of minors
In most member states, minors and disabled people are under-protected. In Italy and Austria, the limitation period starts to run from the appointment of a legal representative. In The Netherlands, the limitation period starts to run from the date a minor turns 18 years old but there is no such protection for disabled people.  In France, the limitation period starts to run from the age of 18.  In France and Italy, the limitation period is suspended during a period of disability unless the disabled injured person is under the charge of someone capable of taking action.

Medical experts
Medical experts play an important role in case assessment and evaluation but there are wide differences with respect to requirements to act as medical experts, the form and content of medical reports, medical scales for the evaluation of injuries, and the use of experts and expert reports in court. There is no unified standard for expert evidence.

In most member states, there are no special courses or certificates for medical experts. The form and content of medical reports vary. In The Netherlands, Spain, and Belgium, experts report on injuries as well as the percentage of disability.  In The Netherlands, experts are appointed by both parties or by the judge. Luxembourg courts often rely on foreign experts from France, Belgium, or Germany. Some courts strongly rely on expert reports while others use them, only partially, to help in reaching a decision.

Awards for pain and suffering
In different Members States, the same kind of injuries with the same kind of impacts on victims’ lives may lead to completely different compensatory awards. Some member states allow unlimited non-pecuniary losses while other member states apply caps, fixed tariffs, and limits set by law. The latter include Spain and Italy with respect to road traffic accidents.  Denmark also has fixed maximum statutory awards.

Be Aware of differences and seek help
As compensation of damages for traffic accident injuries vary widely throughout the E.U. on the basis of different limitation periods, substantive laws, caps, admissibility standards for expert opinions, and networks among plaintiff’s lawyers. Lawyers working in this field should be aware of the procedural and substantive differences and seek help from lawyers in countries where the accident occurred.

If you need help in the Netherlands or have questions about Dutch law and cross border accidents contact antoinette.collignon@legaltree.nlhttp://www.legaltree.nl/en Continue reading