General Damages in Traffic Accident Cases

Transcription

1 HARRIS KYRIAKIDES LLC ADVOCATES LEGAL CONSULTANTS Damages in Traffic Accident Cases Nicolas Kyriakides LL.B. (Athens), LL.M. (UCL, NYU), MSt (Oxon) Vasiliki Panteli LL.B. (Cyprus)

2 Contents 1. Contents Introduction Review Case Comparison 1980, 1990, 2000,

3 1. Introduction We operate one of the largest insurance practices in Cyprus. We represent major Cyprus insurance companies as well as private corporations active in the insurance sector in Cyprus. We also represent overseas insurance companies and international corporations that operate in the insurance industries of major jurisdictions and international financial centres. Our firm's civil trial practice covers a broad range of contentious matters. We represent defendants in all types of insurance disputes, with particular emphasis on traffic accidents, employment injuries, professional claims, and damages to property. Our services include negligence defense and all types of related negligence claims defense. We have extensive experience of defending employers liability and public liability claims on behalf of corporations and insurers. We also represent defendants in professional liability claims against architects, engineers, physicians, nurses, physicians professional groups, lawyers, and accountants. Our experience, expertise, local knowledge and familiarity with information technology, allows us to utilise significant resources to meet the challenges of insurance litigation in modern times. We seek to identify fraudulent and exaggerated claims from an early stage, we deliver early stage liability advice always seeking to achieve early cost effective settlements, by engaging in constructive communications with claimant solicitors to achieve early resolution. If claims are led to trial, our litigation teams provide representation that protects the interests of our clients and seek to aid the to reach a fair result on the issues in dispute. In regard to non contentious matters, we regularly advise and opine on liability and quantum issues subject to the Cyprus law as well as other matters related to Cyprus Insurance law. We also deal with matters related to coverage opinions, claims analysis, regulatory compliance, and endorsements. 3

4 Review Below is a summary of all decisions of the Cypriot courts in 2013 which were awarded general damages as a result of a traffic accident. The purpose of the following collection of decisions is to give an indication of the level of general damages for various bodily injuries. However, as it has been repeatedly emphasised by the courts, previous decisions in matters of compensation are not necessarily binding. Specifically, the courts emphasise that there is no fixed measure of valuation of human suffering. Reports or judgments of courts in other decisions, simply provide a general guidance due to the fact that it is not possible for two persons, who were injured under completely different circumstances and conditions, to have suffered similar injuries, pain, and suffering. However, when in other adjudicated cases there is either some relevance as to the injuries, or the ratio to the extent, type, or the aftermath of the traumas, then it is right and proper that the courts draw guidance and take into account the amount of compensation granted in other matters. Thus, the courts do end up to the level of the damages to be granted guided by jurisprudence, but primarily they have in mind the facts and circumstances of the case under review. In general, there are some trends emerging from the decisions of Specifically, when the injury does not leave serious residues to the claimant, an amount below is usually awarded. If the residues are severe or require further hospitalisation expenses, general damagesrange from to If the injury has caused very serious residues and the claimant was at a young age, general damages may exceed

5 1 2 Action Number 5549/2007 Action Number 3137/2009 Decision Date Decision Date Androulla Evangelou v Avraam Neofytou Matheos Papachristodoulou v Katharina Strachan Limassol District Paphos District The Claimant was hit on the arm, which was bandaged, the elbow, the left ankle and left buttock. She suffered from pain in the hand and waist, which, however, deteriorated and no residue has remained. The pains in the lower back and hand have struggled the Claimant for a period of three months and due to this situation, the Claimant was forced to visit an orthopedic specialist four times. The Claimant, aged 33 years at the time of the accident, suffered injury on the 12th spine leaving him with residues throughout his life. Also, there was a likely need of surgery in the future

6 3 4 Action Number 991/2008 Action Number 261/2008 Decision Date Decision Date Irene Kremmastou v Paraskevi Yiannara Theonitsa Charalampous v Kyriakos Papasavva Famagusta District Nicosia District As a result of a head injury, the claimant suffered chronic subdural hematoma which needed immediate surgery and was treated surgically under general anesthesia. Because of the subdural hematoma that was caused, the claimant showed symptoms of intense headache, severe instability, dizziness, tinnitus, fatigue, and furthermore developed post-traumatic stress disorder and depressive mood. Despite taking precautionary medication for all symptoms, there was no cure and the symptoms worsened and remained without predicting any improvement and healing. The claimant, aged 37 years at the time of the accident, suffered a red bruise on the left clavicle and thoracic spine. After the accident, she suffered severe pain in the back, chest, left shoulder and neck, she was taking anti-inflammatory pills and applied specific massage techniques at the top of her left shoulder and up until the left side of the neck. She was absent from work for 10 days, at which time she was constantly bedridden. The intense pain stopped after about two months from the day of the accident

7 5 6 Action Number 831/2005 Action Number 3036/2006 Decision Date Decision Date Xenofon Xenofontos v Carolina Demetriou and Maria Petoufa as Administrators of the property of the late Panayiota Christodoulou Andri Mormori Mina v Costakis Theodorou Nicosia District Nicosia District The claimant, aged 44 years at the time of the accident, suffered a fractured sternum, fractured nasal bone, neck sprain, lumbar sprain, and head injury in concussion level. He was admitted in Nicosia Hospital for nine days and underwent conservative medication. After leaving the hospital the headaches and dizziness continued, there was pain and slight stiffness in the neck with limitation of movement and intense chest pain whilst breathing. He remained out of work for about two months. The pains in the chest and in the lumbar and neck spine as well as the dizziness - headaches continued for several months. As a result of the nasal fracture came little distortion and difficulty breathing. The fractured sternum was fully cured while degenerative changes of the neck and lumbar spine were not proved to be the result of the road accident. The Claimant suffered a traumatic brain injury with semiotics, had to stay in bed for some time after the accident until she eventually returned to work, and had dizziness, nausea, headaches, and migraines. Also, she suffered post-traumatic neural disorder which had healed after taking medication for two years

8 7 8 Action Number 1852/2012 Action Number 3604/2012 Decision Date Decision Date Pantelis Panteli 2. Georgia Ioannou v Giorgos Tziortzis Mikaella Iakovidou v Dimitris Mavros Larnaca District Limassol District Claimant 1 had suffered abrasions on the fingers of his left hand, injuries on the left sides and spinal lumbar fracture of the spine without any visible sign of the fracture. As a result of the accident he was unable to work for two weeks. Claimant 2 suffered strains on both knees, injury to the knee, the calf, right thigh, the pelvis, and the elbow. She had suffered strain on the skull, head injury, and a heavy neck sprain. She was troubled for a month and a half, immobilized her neck with a collar, received physical therapy and medication. Also she suffered post-concussion condition, which persisted for some time. The court ruled that there is a possibility that the accident has left some residues on Claimant 2, that she will have pain in the neck and knee after tiredness, moisture, and weather change. The Claimant suffered a neck strain, lumbar strain, concussion and headaches. She suffered limitations in flexibility and extension and neck stiffness, loss of normal neck lordosis, and reduced twisting of the neck due to the pain. Due to the fact that the claimant was pregnant, she had premature contractions whilst the pregnancy had worsened the pain, anxiety, discomfort, and the cure. No residues or other consequences remained in pregnancy for Claimant 1 and for Claimant

9 9 10 Action Number 2843/2006 Action Number 2095/2006 Decision Date Decision Date Constantinos Christou v Kyriakou Athienitou Christos Challoumis v Grigoris Nicolaou Limassol District Nicosia District The claimant underwent surgery for a small, dirty receding wound to the height of the index and the base of the metacarpal. An object entered the index in the middle and cut the tendon, because it was slant. Stitching was applied and glass residues were removed at the base of 4th and 5th metacarpal and a plaster splint was placed in Box-in glove position. It was not proved that there were any forms of functional residue. However, some scars remained from the wounds. The area of the middle finger at the time of the trial was complete while bending showed very little reduction, i.e. the full bend of the finger was at a distance of about half a centimeter from the palm. During the clinical examination of the range of motion of the neck and the waist, there was small degree of stiffness, but there were no traumatic findings or fracture. The Claimant suffered a fracture of the lateral malleolus. He was admitted to hospital and was subjected to restoration of the injured member and surgery for the placement of osteosynthesis material. The injured lower end of the Claimant remained immobilised in a splint for a period of one month. The Claimant remained out of work for four months. At the time of the hearing of the trial he continued to feel discomfort and still faced limitations in his daily activities and in whilst exercising his profession, since, as a civil engineer it was often needed to be present on construction sites and therefore his income capability had now been reduced. The accepted that the osteosynthesis materials which were placed on the injured limb of the claimant for stabilisation purposes and which were still in his system, should be removed with an additional surgery

10 11 12 Action Number 9227/2005 Decision Date Action Number 391/2011 Decision Date Sun Lian Bin v Stelios Panayiotou Dina Stavrinou v Losing Jurgen Nicosia District Limassol District The Claimant was 34 years old at the time of the accident and sustained abrasions and friction burns of the front of the head and mid-thorax, receding wound on the upper and lower end, rib fracture, lung and pneumothorax contusion, liver injury, lower limbs injury, and severe injury of the right arm with inoperability of the fingers. With time, the movements of the right shoulder, elbow and finger deteriorated. Stiffness was observed in the right knee. Due to the accident, he showed a psychogenic disorder, i.e. intense psychological problems and depression and worsening of cognitive functions, namely thinking, concentration, learning, and memory. Moreover, he suffered from phobias, insecurity, insomnia, anger as well as permanent weakness of the lower limbs thus leading to limping gait, weakness of normal use, brief standing fatigue, inability to concentrate and also a possibility of deterioration of all symptoms in the future. By the time of the trial, the Claimant continued to walk with a limp and had stiffness on the right knee, on the joint of the right shoulder, elbow and hands. He also suffered Sudeck syndrome which had greatly influenced him psychologically. He was not communicating with other people, had limited understanding, could not help himself and needed constant care. Also, his ability to work and his activity with Kung Fu had decreased. The Claimant suffered chest, abdomen and pelvis contusion, sternum injury and fracture of the coccyx. The fracture of the coccyx resulted in the restoration of the injury to become time consuming with many inconveniences such as pain when walking and difficulty to sit. During the last examination before the hearing of the trial, healing of the fracture and back pain with atypical causalgia was diagnosed. The Claimant also suffered from depression as she was no longer able to look after herself and depended on the help of other people and, in general, she could not live her life as she did before the accident

11 13 14 Action Number 1089/2008 Action Number 316/2009 Decision Date Decision Date Ulrike Koch v Demi Bestaev Giorgos Grigoriou v Constantinos Kapnos Paphos District Nicosia District The Claimant suffered a fracture on the right distal radius in her right 4th metacarpal, fracture in her right head bone, and back dislocation in the 3rd and probably the 4th carpometacarpal joint. She also suffered a receding injury on the right frontal and a head injury which was stitched. She received medication and physiotherapy was recommended for a period of nine months. There was an improvement and her fractures during the hearing had healed but it was proved that some residues have remained in the long term and the injuries could lead to secondary traumatic osteoarthritis in the right wrist and hand. By the time of the hearing, there was constant irritation and discomfort in her right hand with intermittent pain, she was suffering from stiffness, especially early in the morning with a feeling of crepitation when moving the right hand and wrist, and reduced strength had remained in her right hand compared to the left, although she was right-handed. Some subtle movements of the right hand were affected and there was stiffness in the right wrist especially when turning the wrist radically. She also could not complete a certain number of daily activities. The Claimant suffered second-degree post-traumatic arthritis in the right hip, right hip fracture, a femoral head epiphysis in the right hip, and reduction of the posterior dislocation of the right hip. It is noted that the ruled that there was no liability,, but mentioned the amount of compensation to be awarded in the event it was proved

12 15 16 Action Number 5650/2006 Action Number 624/2010 Decision Date Decision Date Paraskevas Giannoglou v Stella Flouri Zacharias Chatzinikola v Georgios Katsouri Nicosia District Famagusta District The claimant suffered an open, crushing upper-condylar fracture of the right elbow and on the back of the elbow with a length of 20cm crushing and filthiness without neurovascular semantics. The operation of the right elbow showed severe permanent impairment, painful and severe osteoarthritis without chances of improvement. Because of the apparent stiffness of the right elbow and the weakness of the limb, the Claimant remained with a serious degree of disability and the scars will remain while in the future the deterioration of osteoarthritic lesions is expected which will likely force the Claimant to undergo further surgery. The Claimant was suffering from a narrowing of C5-6 intervertebral space with front osteofyto before the accident, but had no signs of any disease of the spine and the neck spine. After the accident and because of his whiplash injury and consequent fracture, symptoms of neck pain and stiffness in the neck had occurred, with adverse consequences as to the everyday life, i.e. work and daily activities and amenities. He had to take medication, refrain from work, and attend physiotherapy programmes

13 17 Action Number 2373/2013 Decision Date Averof Nikolaou v Central Insurance Nicosia District The Claimant suffered a rupture of the tendon of the upper-spinatus muscle, a rupture of the front portion of the lower labial cartilage and tendonelitritis of the long head of the bicep muscle. The healing of the damage suffered by the claimant would occur with surgery, the cost of which amounted to It is noted that in this case the Defendants did not appear

14 3. Case Comparison 1980, 1990, 2000, 2010 Below is an indicative comparison of decisions of the Cypriot courts in which Damages were awarded for fracture of the tibia and fibula during the decades 1980, 1990, 2000, and The purpose of the comparison is to determine whether there is an increase in the amount of compensation and if there is, what is the breadth. Indeed, the comparison has reflected a steady increase (see chart on page 17). The courts recognise the steady rise in the level of general damages that the jurisprudence reveals. According to the courts, this trend reflects the greater sensitivity towards human suffering, the discomfort, the agony of disability, and the mental anguish of the marginalisation of ordinary human activities. Meanwhile, the yield of the compensation reflects the reduction of the purchasing value of money In any case, however, the courts emphasise that it is a constant legal principle that the compensations should be socially acceptable. The purpose of the compensation for civil wrongs is not to punish, but to restore. In subsequent years, it is predicted that the increase of general damages will stop. This conclusion results from the new circumstances in the Cypriot economy and especially deflation. Specifically, according to a survey by the Statistical Service, in January 2014 there was a negative inflation of -2.9%, compared with inflation of 1.8% in January The courts are expected to take into account the increase in the purchasing power of money in the calculation of general damages. Indeed, in a recent first instance decision, the taking into consideration the new economic circumstances such as the salary cuts, concluded that the amount of general damages should be 10% less than previous years. 14

15 1 2 Appeal Number 6504 Appeal Number 7836 Decision Date Decision Date Andreas Tranta v Michael Evangelou Boyadji Panayiota Neofytou ν Chrysanthi Demetriou Superior Superior The Appellee was 17 years old at the time of the accident. He suffered fractures to the middle and lower third of the left tibia and fibula. He was hospitalized for a month and underwent physiotherapy for two months and was using crutches for six months. Also, stiffness whilst walking and kneeling remained as a residue, while he felt pain in the ankle after physical exercise. At the same time, he had difficulty and felt pain when dancing and running, whereas before the accident these specific activities were of pleasure to him. Finally, as a result of the injury the Appellee obtained a scar sized 13x4cm. The Supreme affirmed the decision of the court of first instance. The Appellee aged 70 years old suffered a fractured tibia and fibula that needed surgery and platinum and screw placement. She had prolonged pain and discomfort due to post-operative complications as she had suffered a shallow infection and a reaction from the stitches was caused resulting in the creation of small abscesses. At a later stage, she developed a heel injury. The accepted that some residues would remain permanently and there was a possibility for a second surgery to be needed in order to remove the screws and platinum. The Supreme affirmed the decision of the court of first instance ( 6.834,40) ( 9.568,16) 1 The amounts were converted from Cyprus Pounds to Euro using the exchange rate on when the Euro became the official currency of Cyprus (1 Euro = Cyprus Pounds). 15

16 3 4 Action Number 1225/2004 Action Number 290/2009 Decision Date Decision Date Christos Ioannou v Vyron Kotziampasis Thushara Hemantha Dabare Alboruge v Vidane Mohondiraige Sujith Larnaca District Paphos District The Claimant suffered a fractured left tibia and fibula. The fracture was reset with two screws for immobilisation. He remained in hospital for five days and re-entered the hospital in order to have an external fixation in the left tibia placed and was instructed to fully operate the leg. He had been given three months leave from work. At the time of writing the exhibit which was accepted by the, the Claimant was described to walk without limping and it was explained that there was a clear fracture union while no specific future functional disorders were predicted. Apart from that fracture, the claimant suffered grazes on the left leg and rupturing trauma, followed later by skin necrosis sized 2x3cm at the wound which, after frequent changes, was healed. The Claimant suffered bipolar fractured left tibia and fibula which was treated conservatively with plaster bandage. He remained in hospital for three days and after four months he re-entered the hospital where pseudarthrosis of the fracture was found and due to this he was operated. Then came the healing of the fracture and the situation went smoothly. The knee and ankle gained full range of motion. There was not any residue left and the Claimant was walking freely and was able to work ( ,10)

17 Amount in Year Comparison of general damages in cases where the claimant suffered a fractured tibia and fibula during the decades 1980, 1990, 2000, and

18 Nicolas Kyriakides Trainee Lawyer LL.B. (Athens), LL.M. (UCL, NYU), MSt (Oxon) E: T: F: Vasiliki Panteli Trainee Lawyer LL.B. (Cyprus) E: T: F: Faneromenis Avenue, Antouanettas Building, 6031, Larnaca, P.O. Box: 40089, 6300 Larnaca, Cyprus Tel: Fax: Website: 18