unidentified motor vehicle, by the Association of Traffic Insurance Companies.

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1 SWEDEN - The activities of the Road Traffic Injuries Commission (Trafikskadenämnden) in Sweden in determining compensation for personal injuries resulting from the use of motor vehicles The Road Traffic Injuries Commission (Trafikskadenämnden) determines compensation for injuries caused by motor vehicles. In a large number of cases where traffic accidents result in severe injuries or death the insurance companies must obtain a recommendation from the Commission before entering an agreement on compensation with the injured party. General background. As a background to the activities of the Commission some general points will be presented here regarding the Swedish motor traffic insurance and the types of compensation which are involved in this insurance. By law all motor vehicles must be insured. Through the motor traffic insurance anyone suffering from a personal injury as the result of a traffic accident is entitled to compensation from the vehicle s insurance company. According to the Traffic Damages Act which has been in effect since 1976 all victims of traffic accidents are entitled to receive, in principle, full compensation for their personal injuries. This applies to drivers, passengers as well as to pedestrians and cyclists. Even drivers and passengers in uninsured motor vehicles and those injured by unidentified vehicles are entitled to full compensation. The compensation is to be paid out by the traffic insurance of the individual s motor vehicle. In the case where uninsured or unidentified motor vehicles are involved the compensation is paid by the Swedish Association of Traffic Insurance Companies. In other words, the insurance companies provide compensation regarding all personal injuries related to a person s own vehicle, even in those cases where the injury was caused as the result of a collision with another motor vehicle. If the injury was caused as the result of a collision with another motor vehicle, the insurance company has the right to have payments made to the victim refunded by the insurance company of the individual who was at fault or, if the injury was caused by an uninsured or unidentified motor vehicle, by the Association of Traffic Insurance Companies. As a main rule, any victim of a traffic accident is entitled to full compensation for his or her personal injuries. The compensation can, however, be reduced if the accident was caused intentionally or through gross negligence. It can also be reduced if the driver has been found guilty of drunken driving in combination with reckless driving. However, a victim of a traffic accident is seldom left completely without any compensation. In most cases where the compensation is reduced, the compensation is reduced to two thirds or to fifty per cent of what would normally have been paid. The types of compensation which are dealt with are mainly the following: If an injury causes loss of income compensation will be provided. Normally this is paid out in the form of annual compensation. If the loss of income is a small amount or refers to a limited time, the compensation can be paid in the form of a lump sum. Furthermore, there is non-economic compensation which consists of different types. One is compensation for pain and suffering which is paid for the period of acute sickness and is determined according to fairly standardized tables. For the injury itself, compensation is paid according to the degree of medical disability. The compensation is determined according to standardized tables based on the victim s age and degree of medical disability. In addition, compensation is paid for scars and other disfigurements and loss of substance based on photos and determined according to tables. Non-economic compensation is also paid for inconveniences which are of two types: inconveniences in daily life and, for those who return to work despite the injury, inconveniences at work. The latter is a compensation for the extra strain, or tension, in a job as a result from the effects of the injury. Compensation for both types of inconveniences, although determined according to standardized tables, takes into 1

2 account the individual s living and working conditions. Compensation is also provided for costs caused by the injury. Compensation for inconveniences and costs are normally determined in an annual sum which is capitalized and paid for in the form of a lump sum. As a result of changes in the Swedish Tort Law there have been some changes in determining non-economic compensation for injuries caused by traffic accidents that have taken place after 1 st January In these cases compensation for the injury itself, i.e. the degree of medical disability, is determined in the form of a lump sum which also includes compensation for inconveniences in daily life and, if the victim has returned to work, compensation for inconveniences at work. The compensation is determined in accordance with standardized tables. When changes were made in the Tort Law, a new type of compensation was introduced which is called special inconveniences (särskilda olägenheter). Compensation for special inconveniences is provided for in a very few cases per year and only when the amount of compensation according to the standardized tables is found to be too low. Compensation for loss of income is the only compensation which is taxable. The individual s loss of income has to be calculated before it can be determined. According to the Tort Law, damages are calculated according to a net method which means that so-called coordination benefits such as compensation from the social insurance system, compensation by employers in the form of sick pay etc. are deducted before the amount of compensation from the traffic insurance can be determined. In other words, tort damages can be said to lie at the top of other types of compensation and therefore represent only a small portion of the total economic loss involved in each individual case. With regard to non-economic losses there are usually no co-ordination benefits from the social insurance system that can be deducted. The compensation from the traffic insurance is only meant to cover what remains after the basic protection provided for by the social insurance system and various benefits paid by employers have been deducted. As a rule, a victim of a traffic accident is entitled to these benefits regardless of the reason for the incapacity for work, i.e. regardless of the cause of causation. The various types of compensation an employee with an average income is entitled to from the social insurance system, employers benefits and various types of insurances etc. often add up to 90 % of the loss of income which means that only 10 % remains to be compensated through tort damages, i. e. the traffic insurance. The fact that tort damages are paid out on top of other compensation arrangements results in various complications. It means, in practice, that the amount of compensation from the traffic insurance cannot be determined until the total amount of all other forms of compensation have been investigated and determined. These other compensation arrangements are often co-ordinated with each other and decisions made on what will be paid out by one compensation arrangement will sometimes overlap in time with compensation from another compensation arrangement. Because of this there is often a considerable delay in deciding the amount to be paid from the traffic insurance even in those cases where it is obvious from the outset that the victim is entitled to full compensation for his injury. This situation makes it possible for the insurance company to make partial payments which will be deducted once the co-ordination benefits have been sorted out and it is possible to calculate the exact amount of compensation to be paid from the traffic insurance. The Road Traffic Injuries Commission (Trafikskadenämnden) For several decades the idea that private insurance companies should have the sole responsibility in deciding the often difficult and for the individual very important compensation issues has been considered inappropriate, especially regarding injuries that result in a medical disability. It has been considered important that these compensation issues become subject to an impartial body of investigation in which even people without any connection with the insurance branch participate. An impartial investigation has also been considered important to increase the uniformity and fairness of the decisions. In the field of traffic insurance this resulted in the creation of the Road Traffic Injuries Commission in The basis for the activities of the Commission is regulated by law. In 6 of the Traffic Insurance Decree, it 2

3 states that all insurance companies which provide traffic insurance are obliged to maintain and pay for a road traffic injuries commission. In addition, its regulations must be approved by the government. This means that the regulations cannot be changed without the government s approval. Under the regulations an insurance company is obliged to obtain a recommendation from the Commission before presenting a settlement offer to a victim. The Commission s recommendation, however, is only an advice which means that it is not binding for either the insurance company or the victim. According to its regulations, the Commission s aim is to work for a uniform and fair settlement of claims within the field of traffic insurance. The regulations also contain detailed rules on the types of compensation issues for which a recommendation must be obtained by the Commission. It should be pointed out that in principle it is only in cases where a traffic accident has led to a medical disability or death that the insurance companies must request a recommendation from the Commission. The majority of traffic accidents do not result in personal injuries leading to medical disability and are therefore settled directly by the insurance companies. The insurance companies also pay compensation for pain and suffering, costs and loss of income for the period of acute sickness without any involvement by the Commission. The main issues in which the companies must obtain a recommendation from the Commission are the following: 1. Compensation for loss of income, if the degree of medical disability is 10 % or more or if the annual loss of income amounts to a certain sum (the sum being connected to the Swedish consumer price index for January the year the accident occurred). 2. Compensation for personal injury (physical and/or mental) as well as costs and other inconveniences caused by the injury if the medical disability is 10 % or more. 3. Compensation for loss of support for survivors in cases where the accident results in death. 4. Reconsideration, under certain circumstances, in cases that have already been tried by the Commission. In addition to these compulsory issues, there is another important rule in the Commission s regulations that states that if a victim of a traffic accident requires a recommendation from the Commission, the Commission must issue a recommendation even on other compensation issues. This means that the victim of a traffic accident has the right to have his case tried by the Commission whether it involves compensation during the period of acute sickness or in cases in which the medical disability is less than 10 %.The Commission issues recommendations basically only on compensation issues. However, there has been an increase in the number of cases in which the Commission s recommendation is being requested on medical matters, for example whether the traffic accident is the cause of the victim s mental or physical suffering and/or the victim s inability to work. The Commission issues its recommendations to the insurance companies. From this it follows that it is always an insurance company which brings a case to the Commission. The injured person cannot request a recommendation from the Commission. If a victim wants his case to be tried by the Commission on an issue that is not compulsory the request is made to the insurance company which, in turn, must comply with the request. In practice the Commission deals mainly with matters concerning insurance companies settlement of claims. In accordance with its regulations the Commission also issues recommendations at the request of courts and other government authorities on matters concerning compensation for personal injuries. The Commission s structure The chairman of the Commission is appointed by the government. The present chairman is a former chief judge at one of the courts in Stockholm. The remainder of the members is made up of three categories. The first category consists of six deputy chairpersons and substitutes for them. The chairpersons and the deputy chairpersons must be lawyers and not 3

4 employed by an insurance company. Most of them are men and women who either are or have been, working as judges. The next category represents the insurance companies and consists of thirteen members and substitutes for them. They are appointed by the Swedish Financial Supervisory Authority on the recommendation of the Swedish Association of Traffic Insurance. They must have a substantial knowledge and experience of claim settlements. The third category consists of thirteen lay representatives and substitutes for them. They are also appointed by the Financial Supervisory Authority, on the recommendation of the labour market s interest organisations. They consist of thirteen members and substitutes for them. The Commission has a secretariat where the meetings take place. There are currently twenty people working at the secretariat. Seventeen of them are lawyers. In total, the Commission consists of 68 people including the substitutes. In addition, there are those employed at the secretariat. The Commission meets almost every day during the working week throughout the year. Normally there are about 24 cases dealt with at a meeting. Six members (two from each member category) will decide on each case. Sometimes, however, there may be as many as 35 cases to be tried in one day. About 2/3 of the cases will then be of a less complicated nature. These cases will be tried during the second half of the meeting with only three members deciding on each case (with one member from each member category). Thus there will be two groups dealing with the remaining less complicated cases, working parallel in two separate rooms. If a case that is being dealt with by three members of the Commission turns out to be of a more complex nature, it will be lifted out to be tried at a meeting with six members. The rules on voting are formulated in such a way that the chairman at the meeting has the casting vote and, in addition, the representatives from the insurance companies can never alone determine the outcome of an opinion issued by the Commission. The procedure before the Commission In practice the proceedings are as follows. The insurance company puts the result of its investigation into a special report (nämndpromemorian). The report consists of various forms which give a short presentation of the case, issues to be dealt with and the insurance company s and the victim s view of the matter. Relevant material like medical journals and economic reports are attached to the forms. There is also a detailed account of the injured person s situation before and after the accident regarding his working and living situation and so on. In addition, the report contains the victim s claims, if they have been specified, although this is not required as the Commission takes an independent view of the issues to be dealt with. The degree of medical disability, which is normally used as a point of reference, has been estimated by a doctor, or by doctors, at the insurance companies. To the extent that other degrees of medical disability have been indicated by other doctors, these doctors opinions should also be included. The special report with its enclosures and the insurance company s compensation offer will first be sent to the injured person or his representative. He or she may add supplementary material to the report or express any additional viewpoints that he might have. Thereafter, the company submits the report, together with the entire file, to the Commission. About a fortnight before a case is due to be tried, the report with its enclosures is sent to the members who will participate in the meeting. A case is normally presented by one of the lawyers at the secretariat. However, the secretariat does not have the resources to deal with all cases which means that some cases, about twenty per cent, are presented to the Commission by members from the insurance companies. A member representing the insurance branch may of course not be present when a case from the company he or she is working for is being tried and, likewise, may not be present when a case from his or her company is being dealt with. Since the members who will be deciding at the meeting will have read the report concerning each case in advance, the presentation will usually be very short and the discussions will focus on issues which are questionable or otherwise of special interest. The presenter of the case has access to the file and is able to answer any questions which may have been left unclear or unanswered in the report. The Commission s recommendation is based entirely on written material. 4

5 After a case has been presented a vote is taken on the decision of the Commission. A dissenting view may be expressed in the Commission s recommendation, however, a dissenting opinion is relatively rare. After a case has been submitted to the Commission it normally takes between two and five months before the Commission s recommendation is issued. The proceeding before the Commission is free of charge for the individual and thus does not cost him anything. As has already been mentioned, the insurance company presents a compensation offer in its report which is sent to the Commission together with the file of the case. The victim has the right to present his claims, although this is not required. The Commission makes its own analysis of the compensation issues at hand and can therefore increase or lower the insurance company s offer and even go beyond the claims of the victim. According to the statistics for 2007 the Commission approved the insurance companies offers in 64,9 % of the cases and recommended an increase in 27,8 % of the cases and a decrease in 7,3 % of the cases. By independently examining the issues of compensation without being bound by either the insurance company s positions or the individual s claims, the Commission is able to work towards the goal of uniformity in the settlement of traffic insurance claims which is a task set out in its regulations. When the insurance company has received the Commission s written recommendation, it will be communicated to the victim along with any dissenting view. As mentioned above, the Commission s recommendation is not binding for either party. However, the insurance companies usually follow the Commission s recommendations and offer compensation in accordance with a recommendation. A recommendation is normally accepted by the individual. The injured person has the right to take his case to court after it has been at the Commission, however, this happens only in a very few cases per year. It should be mentioned that just because a case has been brought before the Commission it does not mean that a final decision on compensation for the future must be made. It is quite common that a final decision cannot be made until the situation for the victim has been stabilized. It may, for example, be necessary to wait with a final decision in order to see how the individual s rehabilitation is succeeding and whether the person will be able to return to work. Sometimes it is necessary to wait with a final recommendation because important facts are missing. In such cases the Commission might suggest compensation for a limited time, perhaps for a few years, after which the case is tried again. This means that the Commission may issue several recommendations in a case, perhaps during a ten year period, before a final recommendation can be made. This procedure means that it may take several years before a case is finally settled, but on the other hand the individual has the right to receive compensation that he is entitled to while waiting for the point in time when the final compensation for the future can be determined. In some cases where it is not possible to determine the final compensation the first time the case is tried, the Commission can give guidelines for the next few years and leave it up to the insurance company and the individual to reach an agreement without the Commission s involvement. For example, if it is uncertain at the time when the case is tried whether the victim will be able to return to the job he or she had at the time of the accident, the Commission may state that until the next time the case is tried, the insurance company should pay compensation for the loss of income that arises in the meantime. In these cases, however, the case must be subject to the Commission s examination one last time in order to determine the final compensation for the future. If the parties disagree on what the compensation should be in the meantime, either party has the right to have the case brought to the Commission again at any time during that period. In addition to issues concerning deciding compensation, the Commission may issue recommendations concerning medical questions for example whether the traffic injury is the cause of the medical disability and/or the individual s reduced capacity to work. The Commission makes an independent analysis even on these issues and can have the 5

6 case examined by independent medical experts. If the insurance company believes that the compensation should be reduced (which is allowed only in cases of intentional causation, gross negligence and drunken driving combined with reckless driving) the Commission decides on the issue of reduction. The cost of a trial at court is avoided through the proceedings at the Commission. In addition, the injured person is able to obtain an impartial examination of his case and therefore often considers it unnecessary to employ an attorney to assist him. The individual is usually represented by an attorney in more complicated cases. If the cost is not covered by public legal aid or by legal insurance, the insurance companies provide compensation to cover the attorney s fees. Other tasks of the Commission Besides issuing recommendations regarding individual injury cases, a substantial amount of additional work is carried out within the Commission. As has been mentioned above, non-economic compensation is based on certain tables. These tables, some of which have been in existence for several decades, have been developed by the Commission and were originally based on legal precedents. Over the years their contents have been revised several times. Each year the Commission adjusts the figures by taking inflation into account. The tables are accepted as guidance for decisions made by the Supreme Court and are used by the courts. They are, in fact, almost always used in the settlement of claims related to compensation based on tort rules. The Commission often appoints internal working groups which investigate various compensation issues. These investigations may result in guidelines which are accepted and applied by the Commission and, in turn, used by the companies in the settlement of claims. The Commission has a board consisting of the chairman and a small number of members from each member category. The board usually meets once a year to discuss important policy issues. The Commission publishes recommendations of special interest in a publication which is distributed to the insurance companies, the courts and the Swedish Bar Association. In 2007 the Commission published thirteen opinions of special interest. As has been mentioned above, the courts and other governmental authorities have the right to request a recommendation from the Commission regarding questions about personal injury compensation. The cases do not have to involve traffic injuries; the issue may for example be the calculating of the compensation for a personal injury resulting from assault or battery. Even the Supreme Court, before issuing a decision, may request a recommendation from the Commission in areas involving its field of expertise. Some statistical information The number of cases in which the Commission issues a recommendation has increased during the last ten years. In 1998 the Commission issued about opinions, in 2007 the number was about There has been a reduction in the number of personal injuries caused by traffic accidents during the last few years. In 2002 there were almost cases whereas for 2007 the number has been estimated to about The reason for this reduction is not known. The preliminary number of fatal traffic accidents in 2007 is 405. Final comments Because of the existence of the Road Traffic Injuries Commission it is possible to settle claims due to personal injuries caused by traffic accidents outside the courts. As a consequence, the number of legal precedents is limited, which is unfortunate. The Commission has, nonetheless, because of the large number of recommendations that it has issued over the years, had an important effect on and, in many ways, been a guiding force regarding the development of the law in the field of personal injury compensation in Sweden. More information about the Commission can be found on g/dok-om nämnden på engelska wennborg 1987/ekwall

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