RTA VICTIMS: THE 4 TH MOTOR INSURANCE DIRECTIVE AND TRIER II CONFERENCE A PROPOSAL FOR LEGAL REFORM Mr. Paul Kuhn (Abstract)

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1 RTA VICTIMS: THE 4 TH MOTOR INSURANCE DIRECTIVE AND TRIER II CONFERENCE A PROPOSAL FOR LEGAL REFORM Mr. Paul Kuhn (Abstract) INDICE GENERALE Presentation A) Introduction The provisions of the 4th Motor Insurance Directive are a first step towards improving the situation of persons suffering damage in road accidents abroad. However, the mechanisms to be implemented under the 4th Motor Insurance Directive only relate to improved procedures (such as identification of the vehicle owner and insurance company, communication in the language of the accident victim, 3 months deadline for a "reasoned reply"). The specific legal problems of a road accident abroad, however, continue to exist, because foreign law will continue to apply, and, if it is necessary to take legal action, the matter will have to be brought before a foreign court. The mere fact that a claims representative is available in the accident victim's own country to handle the claim does not make a foreign accident claim into a national one. In practice, contacts with the foreign country, for example for an inspection of police files (often the true cause of delay in out-ofcourt claims settlement) will continue to play an important role. A significant weakness of the Directive is that the victim is left alone with the burden of legal problems resulting from an accident abroad. It is of vital importance for the victim to receive qualified legal advice from the start. However, many legal systems provide no or very limited possibilities of recovering lawyers' fees if claims are settled out of court. A claims representative's activities can never replace a lawyer's advice, because the claims representative is on the insurance company's side. It must therefore be emphasised that the victim's situation can only be expected to improve to a certain extent. To create a situation comparable to a national accident, it would have to be ensured that the victim receives independent and qualified legal advice at the cost of the liable insurance company. Improvements are also needed with regard to establishing the facts of the case, especially regarding the creation of a procedure for cross-border inspection of files and use of a standard accident report form. B) Attempts at harmonisation At a time of increasing travel in Europe, differences in accident claims handling from one Member State to the next are especially frustrating. The first European Traffic Law Conference was held on 8/9 June 2000 in Trier (Trier I) on the initiative of Mr Willy Rothley (MEP, Vice Chair of the European Parliament's Legal Affairs Committee). At this conference the delegates explored the issue of a possible harmonisation of the criteria regarding claims for pain and suffering. The resolution adopted by the delegates (representatives from science, justice, lawyers' associations, insurance and consumer organisations) among other things aims at creating a point system for assessing injuries. The Head of Damage and Insurance Law Departement ADAC (ACI Tedesca) Monaco - Germany MICROPERMANENTI-MACROPROBLEMI Roma, maggio

2 resolution does not call for a common European standard for injury assessment, however. The existing different economic and social conditions in the EU Member States must be taken into account in national assessment rules. Trier II dealt with the question whether complete and comprehensive protection of all road users suffering damage in a road accident, with the exception of the driver of the vehicle, is a useful and achievable aim. In a discussion paper distributed to the delegates, the expert group chaired by Professor Groutel from Bordeaux mentioned the presence of a road accident on a public road involving a motor vehicle as a prerequisite for compensation. Another prerequisite was the existence of a direct right of action against the motor third party liability insurer. All accident victims except the driver would be able to claim damages unless they had committed a very serious mistake themselves ("extremely serious fault"). The driver would be protected by a mandatory insurance to be taken out by the driver himself. C) Situation in Germany German traffic regulations (StVO), 3 (2a) provide that when encountering children, disabled or elderly persons, operators of vehicles shall conduct themselves such as to ensure these road users' safety, specifically by slowing down and being ready to brake. Nonobservance of this rule is punishable by a fine. If another person is injured or killed as a result of non-observance of this rule, criminal proceedings may be initiated for negligent bodily injury or negligent homicide. In addition, under the provisions of the German Civil Code ( 823ff BGB), the motorist can be held liable for bodily injury and property damage caused because he is at fault for the accident. Under current German legislation, a motorist who is not at fault for an accident may avoid liability by asserting that the accident was an "inevitable event" which even an ideal driver straining all his senses would not have been able to avoid. Neither the motorist nor the motorist's third party liability insurance will then have to pay for the property damage or personal injury caused. If a motorist is unable to prove that the accident was "inevitable", he and his insurer can be held liable for damages on the basis of the "operational risk" of a motor vehicle. This is laid down in 7 (1) of the StVG (German Highway Code) which says that anyone who damages a person's health or causes death or bodily injury or damage to property while operating a motor vehicle shall be held liable for the damage caused. However, in cases of bodily injury, currently no compensation for pain and suffering has to be paid if the motorist was not at fault for the accident. If the person suffering the damage has contributed to the accident, e.g. by crossing the road without paying attention, there will usually be joint liability. This does not apply to children under 7 years of age. Under German law ( 829 BGB - German Civil Code) children under 7 are legally incapable of fault. Only in exceptional cases will the parents be liable to pay for damage caused by their child's actions. This will only be the case if parents failed to fulfil their duty of supervision. The highest German civil court, the Federal Court of Justice (BGH) found, for example, that there was a breach of the duty of supervision under the following circumstances: A mother noted that her small child had run away from her while she was shopping and was hopping around on the pavement. The child then ran onto the street and was hit by a car. The mother can be held liable for one third of the damage caused, MICROPERMANENTI-MACROPROBLEMI Roma, maggio

3 because she failed to react in good time to her child's dangerous behaviour although she had seen it (Federal Court of Justice decision of 16 January 1979, file no. VI ZR 243/76). If children are involved in an accident when riding a bicycle, however, the prevailing legal opinion is that there is no breach of the duty of supervision, especially if the child is almost 7 years of age. Legal reform: Already in1998, an attempt was made to change German tort law. It was proposed to restrict so-called "fictitious" accident claim settlement (where expected repair costs can be recovered from the insurance based on a repair shop's damage appraisal or cost estimate) by excluding the recovery of Value Added Tax. This proposal met with vehement criticism. On 20 February 2001, the newly elected German government launched a new attempt. It proposed that the legal liability of children involved in road accidents should start at an older age: Instead of the existing threshold of 7 years, children should now start to be liable at 10. This does not apply to intentional acts, for example if children cause damage by throwing down stones on passing cars from a bridge. In such cases, liability is to continue to start at seven years of age ( 828 (2) and (3) BGB - German Civil Code). In addition to the protection of children, the proposed second tort law reform act also provided for a modification regarding absolute liability, that is liability regardless of fault. According to 7 (1) of the StVG (German Highway Code), the owner of a motor vehicle involved in an accident can be held liable for damages simply because he put the motor vehicle on the road. However, while it is currently still possible to avoid liability by proving that the accident was inevitable (as I explained before), the proposed modification provides that in future, liability can only be avoided if the accident was due to "Force Majeure". German courts have ruled that "Force Majeure" is an external event brought about from outside by forces of nature or the act of a third party, which is unforeseeable according to human understanding and experience, which cannot be prevented or rendered harmless with reasonable economic effort, even when applying the utmost care reasonably to be expected under the circumstances of the case, and which does not occur so frequently as to make it something which has to be reckoned with (e.g. Federal Court of Justice, "Versicherungsrecht" 1988, pages 910 and following). From this definition alone, it becomes clear how difficult it will be for a motorist to avoid liability. Examples for "Force Majeure" include natural disasters which are completely outside the motorist's control. Based on this definition, the motorist can therefore almost always be held liable even if not at fault for the accident. Unlike the existing legislation, the proposal would allow all persons involved in an accident to claim damages, excluding the drivers of the motor vehicles. This is almost identical to the point of view of the Trier II Working Group as laid down in the discussion paper, although only with regard to absolute liability. The proposal also includes a modification regarding claims for pain and suffering: While previously, compensation for pain and suffering could only be claimed from somebody proved to be at fault, such compensation must now also be paid in cases of absolute liability. Changes to the proposed act Not least thanks to ADAC intervention, the second tort law reform act will now be modified to preserve the existing possibility of avoiding liability in accidents involving two motor vehicles or a motor vehicle and a motor vehicle trailer. Car owners who can assert that even an ideal driver would not have been able to avoid the damage will therefore not be held liable in such cases also in future. "Vulnerable" road users, however, above all children, the MICROPERMANENTI-MACROPROBLEMI Roma, maggio

4 disabled and elderly, will be able to claim damages also if the motorist is not at fault for the accident, unless the motorist can assert that the accident was due to "Force Majeure" ( 7 (2), 17 StVG - German Highway Code). These regulations will become legislation in August first D) Trier II harmonisation concepts from an ADAC viewpoint In principle, ADAC welcomes any attempt aimed at systematic improvement of liability law in theory and practice. However, this must not lead to a complete reversal of the tried and tested principles of national tort law. According to the Trier II discussion paper, all persons suffering damage in an accident (except the drivers) should be compensated. This is not in compliance with existing national legislation, from liability strictly based on fault (e.g. in Great Britain), to liability regardless of fault resulting from the operational risk of a motor vehicle (Germany), to liability based on causation (Denmark), which, however, also privileges the motorist if causation is established. One should also mention the "liability based on involvement" under the French "Loi Badinter", which only privileges a certain group of persons (younger than 16, older than 70, at least 80 % disablement). We believe that the approach now being taken in Germany, namely to grant special protection to non-motorised road users by only excluding liability if the accident was due to "Force Majeure", is a satisfactory solution. Even a person riding as a passenger in a motor vehicle and suffering damage or injury in an accident for which nobody is at fault will be able to claim compensation. This will be the case, for example, if an accident occurs on an unexpected slippery patch of wet road ("aquaplaning"). However, if a vehicle is damaged on a motorway by small stones flung into the air by the preceding vehicle, the driver of the preceding vehicle will continue to be able to assert that even an ideal driver could not have avoided the damage. In this case, neither the driver nor the owner nor the insurance of the preceding vehicle can be held liable. For the sake of clarity, it should be pointed out that, if a driver is at fault for an accident, the general operational risk will not play a role unless there is contributory fault. If a rear-end collision accident occurs at a red traffic light, the insurance of the vehicle rear-ending the other will pay 100% of the damage. The issue of causation should therefore remain the basis of a common - European - solution as far as the assessment of liability is concerned. If, as suggested in the Trier II discussion paper, the principle of general liability independent of fault were to be incorporated into European Union legislation, there would also have to be a provision preventing a reduction of the no-claims bonus of the owner of the vehicle involved in the accident. If such a provision cannot be incorporated into national law, insurance companies could seize the opportunity to recruit new customers by not reducing the no-claims bonus in cases of liability without fault. E) Conclusion The harmonisation of provisions aimed at protecting vulnerable road users will prove to be very difficult in view of existing different conditions in the Member States. It appears that the EU has no competency to regulate this matter by a directive. Substantive tort law falls under the competency of each individual Member State. Harmonisation by means of a European directive does not seem to be possible, at least for the time being, because of the principle of subsidiarity. Further, one must be extremely cautious when trying to harmonise a component part of an overall legal system. Any new regulation of such a component part may strongly disturb the balance of the overall system, including social security systems. It is therefore particularly MICROPERMANENTI-MACROPROBLEMI Roma, maggio

5 important to observe the principle of proportionality in this respect. Prior to a harmonisation of European tort law, modifications to a Member State's overall legal system should only be made in exceptional cases. It is of course legitimate to make suggestions to national legislators. The discussions at the Trier II conference are certainly useful for pointing out the existing differences in the protection of vulnerable road users, and for making public the points of view of experts from all over Europe who are involved in the discussion. In any way there will be hard work to do and it surely will take a long time again until the regulation of the rights concerning road-traffic-accidents will be harmonisized ADAC e.v., JZE, Paul Kuhn, Tel. 0049/(0)89/ INDICE GENERALE MICROPERMANENTI-MACROPROBLEMI Roma, maggio

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