Archive for the ‘road traffic accident’ Tag

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.

 

Cross-border cases. Why it is important to decide in early stage where to bring your case.

Many products and services originate from abroad, involving cross-border transport. If damage is sustained as a result of a traffic accident, the question arises if, where and against which party a liability suit may be initiated. The same applies for defective products and services. There are different ways of conducting litigation, collecting and assessing evidence,  limitation periods and the ways in which these are to be interrupted. In addition there are huge differences between the ways in which the merits of a case are judged.

In some countries it is possible to demand damages for surviving dependants, whereas such is not possible in the Netherlands. Damages and the way these are determined also vary from country to country. Furthermore court proceedings vary and costs of lawyers are assessed in a different way.

For all these reasons it is essential to decide at a very early stage before which court a case is to be brought and which law is to be applied.

For more information please check our website http://www.legaltree.nl/en/services/liability-and-insurance/

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