Personal Injury Practice and Procedure in Europe
CP Cavendish Publishing Limited
London • Sydney
Personal Injury Practice and Procedure in Europe
Research project by Martha Warren Neocleous for the Association of Personal Injury Lawyers, Europe Special Interest Group
CP Cavendish Publishing Limited
London • Sydney
First published in Great Britain 1997 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX. Telephone: 0171-278 8000 Facsimile: 0171-278 8080 Email:
[email protected] Home page: http://www.cavendishpublishing.com © Association of Personal Injury Lawyers and Martha Warren Neocleous 1997
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission of the publisher and copyright owners.
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Personal Injury - Practice and Procedure 1. Personal injuries – England 2. Personal injuries – Wales I. Warren, Martha 346.4’2’0323 1-85941-179-7
Printed and bound in Great Britain
FOREWORD
The Association of Personal Injury Lawyers was founded in 1989 by John Melville Williams QC, Michael Napier, Rodger Pannone and Simon Walton. From their initial vision of an organisation that represented the victims of accidents has grown APIL which now has over 3,000 members. Its members – practising lawyers, academics and students – are dedicated to providing the best possible service to those whom they represent. One of the objects of the Association is to share information and to improve knowledge and understanding of the law and practice of personal injury litigation. APIL’s members are drawn from the jurisdictions of the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man and the Republic of Ireland. APIL’s overseas members come from the United States of America, Canada, Australia and European jurisdictions as well as many others. Their experience, similar and dissimilar, is of equal importance to the Association. In 1990, I had the pleasure of being the first co-ordinator of the Europe Special Interest Group of APIL. It was a particular interest of mine as I believed that, although we have a legal history shared with common law jurisdictions, our future legal development would be shared with the jurisdictions of the European Union. However, it quickly became apparent that our knowledge of what happened in other European jurisdictions was very limited. Our first task was to devise a questionnaire to send to lawyers in other countries. This took us some time as we wished to find out not only about the legal basis of any personal injury case but also such matters as limitation, procedure, how the case might be funded and how evidence was collected and then presented to the tribunal. There had recently been published a review of damages in European jurisdictions which had been undertaken by Davies Arnold Cooper, but we were more ambitious and wanted to widen our enquiries. The questionnaire was sent to lawyers in various jurisdictions who very kindly assisted us in this, the first stage of the work. Their names are amongst those you will find in the following pages. Armed, now, with a huge amount of information, we faced the daunting task of trying to put it into some manageable form. The first part of the project was undertaken by Neil Cawthorn, the secretary of the Europe Special Interest Group, who used part of his sabbatical for the purpose. Without this very important collation of information we would not have been able to take the project forward. The next stage was to take what we had achieved so far, check it, add to it, bring it up-to-date and write it up in a form which would be useful to practitioners. For this, the final part of the project, APIL commissioned Martha Warren, then of the University of Sussex. This volume is the result of her researches and is written by her. The journey that was begun in 1990 has thus reached its first major resting place. However, the journey is not over for there are other jurisdictions to research and a continual need to keep up to date with not one, but 15 jurisdictions. As well as being a reference for personal injury lawyers, we should also use this
v
Personal Injury: Practice and Procedure in Europe book to consider how best we may learn from each other; what aspects of each other’s law and practice we might adopt so that the fairest system possible may be achieved for resolving personal injury litigation. That system should be fair to both sides of the dispute, resolution of which should be achieved at the least cost and delay that is consistent with justice. I would hope, therefore, that readers may like to address such matters as upon whom the burden of proving liability rests, the place of the social security system in the compensation of those injured in accidents, whether or not a system of court appointed experts speeds up and advances justice, and how victims of accidents may finance their claims. These and many other matters such as the different levels of damages in the countries of Europe should form the agenda into the next millennium. Caroline Harmer President Association of Personal Injury Lawyers May 1997
ACKNOWLEDGMENTS
The research for this book was initiated by the Europe Special Interest Group of the Association of Personal Injury Lawyers, and written by Martha Warren Neocleous. Grateful acknowledgment is made to the following lawyers for their involvement and assistance:
CYPRUS Demetris Demetriades is currently a senior partner with Andreas Demetriades & Co, Pafos. He acts mainly as a personal injuries litigator and consultant for major insurance companies. Emilios C Lemonaris is a Barrister of the Honourable Society of Lincoln’s Inn, London and has been in practice since 1969. Ioannis Neocleous is currently a partner and director of the international legal department at Papacharalambous & Angelides Law Firm in Nicosia.
DENMARK Niels Th Bak was, prior to his death last year, a partner of Advokaterne Arup & Hvidt in Copenhagen. Torsten Hvidt is a lawyer with Nebelong & Partners in Copenhagen. Tina Reissmann is a senior associate in Plesner & Grønborg, Copenhagen. She handles personal injury cases for both insurance companies and private clients, and also specialises in insurance and employment laws.
ENGLAND
AND
WALES
Caroline Harmer, Barrister, is President of the Association of Personal Lawyers and was the first co-ordinator of the Europe Special Interest Group of the Association.
FINLAND Henrik Hästö is currently a senior partner with Bützow & Co, Helsinki. The firm has a very strong practice in insurance matters and represents a number of major insurance companies. Leila Lindström is an information service manager of the Finnish Bar Association.
vii
Personal Injury: Practice and Procedure in Europe
FRANCE Dr Peter Marks is a medically qualified Barrister specialising in road traffic accident cases. Bruno Paris is Advocat à la Cour in Paris and specialises in personal injury and insurance laws.
GERMANY Gustav Duden is a Rechtsanwalt from Mannheim. He handles personal injury cases for both governmental institutions and private clients. Dr Petra Schaaff advises and represents her clients in all main areas of civil and commercial law, including personal injury cases, from her practice in Hamburg. Carmen von Briel is a government official for the German financial administration.
GREECE Athanassios Vamvoukos is an attorney at law practising in Athens. He has contributed over 250 articles to legal journals.
ITALY Claudio Ceriani is a partner in Ceriani e Minzioni of Milan, a law firm specialising in the areas of personal injury law, corporate and tax and computer law. Laura Palumbo is a member of the law firm Spreafico Marsaglia in Milan. The firm is involved in all areas of civil and commercial laws, including personal injury.
MALTA Giannino Caruana Demajo LLD is a judge of the Superior Courts of Malta. He also lectures in civil law at the University of Malta. Dr Louis Cassar Pullicino is the litigation partner in the law firm Professor JM Ganado & Associates and is involved in all types of civil and commercial litigation including personal injury claims. Professor Ian Refalo is Dean of the Faculty of Law, University of Malta.
THE NETHERLANDS Bas Baljet is a partner in Tanger cs Advocaten in Velsen. He specialises in personal injury law, insurance law and employment law. Edward Dijxhoorn is currently a partner in Marree & Dijxhoorn in Amersfoot and has been specialising in the field of personal injury law since 1981. viii
Acknowledgments
NORTHERN IRELAND Gerry Daly is a partner in Francis Hanna and Company in Belfast. He heads the personal injury litigation department and is an advocate of the use of modern technology to assist the practitioner in providing an ever improving service.
RUSSIA Dmitry Chuprov is a personal injuries litigator with Linklaters & Paines in Moscow. John Phipson is a senior partner in Linklaters & Paines and was resident partner in charge of the Moscow office. Lisa Booth is a senior lawyer at Cameron McKenna’s Moscow office whose clients include leading international insurance companies.
SCOTLAND David Burnside is senior partner with an Aberdeen firm specialising in personal injury and employment. He has been a solicitor for 30 years.
SPAIN Professor Bernardo M Cremades is a senior partner of J & B Cremades & Associates with offices in Madrid, Paris and Brussels. He is the author of several books and is a regular speaker at international conferences. Juan Blanco Moreno is a lawyer at J & B Cremades & Associates in Madrid. Jose Maria de Lorenzo is an established specialist in Spanish personal injury law. He has acted frequently as an expert witness in the UK. He is a regular speaker at international conferences and contributor to legal journals.
SWITZERLAND Dr Caterina Nageli is a partner of a Zurich law firm specialising in personal injury law, contract law and company law.
ix
CONTENTS
Foreword
v
Acknowledgments
vii
1
INTRODUCTION
1
2
CYPRUS
3
3
DENMARK
13
4
ENGLAND AND WALES
23
5
FINLAND
35
6
FRANCE
45
7
GERMANY
55
8
GREECE
69
9
ITALY
81
10
MALTA
93
11
THE NETHERLANDS
103
12
NORTHERN IRELAND
115
13
RUSSIA
125
14
SCOTLAND
133
15
SPAIN
145
16
SWITZERLAND
157
Index
167
xi
CHAPTER ONE
INTRODUCTION
A generous and elevated mind is distinguished by nothing more certainly than an eminent degree of curiosity; nor is that curiosity ever more agreeably employed, than in examining the laws and customs of foreign nations.1 Samuel Johnson
Until recently, there seems to have been a dearth of information on comparative law, and particularly in the field of personal injury. There is an increasing demand, however, for such materials, due in large part to the ever-increasing mobility of people. A European holidaymaker injured abroad is a classic case of conflicts of law. The lawyer of such a plaintiff is often at a loss as to how to approach the personal injury law of a foreign jurisdiction. It is to this end that this book has been written. It is hoped that legal practitioners will find it a useful reference for cross-border litigation. Academics and those involved in law reform may find the information interesting from a comparative point of view. There is always a great deal of debate on the aims and objectives of comparative methodology. The research undertaken for this book was not meant to be a move towards harmonisation of practice, procedure or quantum of damages for personal injury in Europe. Often the differences between jurisdictions have evolved to accommodate their own particular characteristics. Rather, the strongest argument in favour of comparative methodology seems to be that every system has room for improvement. The benefit derived from the comparison of different legal systems, therefore, lies in education, and learning from the examples and experiences of others. This research presents European lawyers with some interesting alternatives to their present systems. For example, many countries do not award provisional damages. In Spain, the award of damages takes into account the risk of future foreseeable medical deterioration. In contrast, a claim in Denmark can be re-opened at any time and further damages awarded, making awards of provisional damages unnecessary. A comparative approach to personal injury law may be in its infancy but is indisputably the way of the future. In his recent book on comparative law, Peter De Cruz discusses the potential of comparative study: Surely what comparative law can do is to enable us to look beyond our narrow parochial interests, and illuminate our understanding of legal rules and concepts, to remind us that despite differences in culture, history, law and language, we are all part of the larger community of mankind. In the words of Jerome (On Getting on in the World, 1889): ‘We are so bound together that no man can labour for himself alone. Each blow he __________________________________________________________________________________________________________________________________________
1 2
Minor (ed), Boswell’s Life of Johnson I, 1907, Jena, 45, fragment 229. De Cruz, P, Comparative Law in a Changing World, 1995, p 491, London: Cavendish Publishing Ltd. 1
Personal Injury: Practice and Procedure in Europe strikes on his own behalf helps to mould the universe.’2
The research for this book was born out of the initial efforts of the Europe Special Interest Group of the Association of Personal Injury Lawyers. I was very pleased to be given the privilege of carrying on with it. I am grateful to a number of people for their help and support. The following law students worked as my research assistants at the Centre for Legal Studies, University of Sussex: Dina Al Wahabi, Nicola Brant, Anna Vlitas, Rohit Sarobar, Paul Akintunde and Trevor Senkatuka. I also owe a debt of thanks to Linda Gardiner and Louise Tilley at the Centre for Legal Studies, without whose help in performing administrative duties, I would never have found the time to undertake this research at all. I am especially grateful to my husband, Ioannis Neocleous, who worked around the clock on the final drafts and gave us access to his own research on personal injury practice in Cyprus. The lawyers throughout Europe who completed our questionnaires and proofread and corrected endless drafts of each chapter are acknowledged separately in the preceding pages. We surveyed 15 legal jurisdictions, and there are certainly others which could be included in future editions of this book. Ireland, Belgium, Sweden, Norway, Austria, and Portugal, for example, were not included in this project. Moreover, as more Europeans become interested in travelling eastwards, there is likely scope for future study of the Czech Republic, Slovenia and other increasingly popular holiday destinations. This is just the beginning.
Martha Warren Neocleous Cyprus May 1997
2
CHAPTER TWO
CYPRUS
LIABILITY The general standard of care in negligence is that of the reasonable man, with the burden of proof resting on the plaintiff. Particular types of harm include the following characteristics: • The regime for road traffic accidents, drugs and employer’s liability is fault based. • Medical negligence is also governed by fault-based liability. The standard of care owed is that of the average practitioner. • Environmental accidents are regulated for the most part by the law of nuisance. The burden of proof is the same as for negligence. • Aeroplane crashes are governed by the terms of the Warsaw Convention 1929 which limits liability for international accidents. • Fatal accidents are governed by English common law principles and the Civil Wrongs Act.1 An action will be filed for the benefit of the dependants of the deceased.2 • Occupier’s liability is covered by the Civil Wrongs Act and is based on a standard of reasonable care.3 The distinctions between contractual licensee, invitee and trespasser continue to be observed. • Liability for damage caused by animals is dealt with by the same legislation.4 There is an express reversal of the burden of proof, however, so that the burden rests on the defendant.5 __________________________________________________________________________________________________________________________________________
1 2
3
4 5
Cap 148, s 58. Dependants include the spouse of the deceased, a parent of the deceased or any other ancendant, any other person that the deceased treated as his parent, a child or other descendant of the deceased, a person treated as a child of the family by the deceased in relation to his marriage, and any person who is the brother, sister, aunt or uncle of the deceased or child thereof. Cap 148, s 51(1) states that ‘Negligence consists of (a) doing some act which, in the circumstances, a reasonable, prudent person would not do, or failing to do some act which, in the circumstances, such a person would do, or (b) failing to use such skill or take such care in the exercise of a profession, trade or occupation as a reasonable, prudent person qualified to exercise such profession, trade or occupation would, in the circumstances, use or take, and thereby causing damage ...’ Cap 148, s 54. Section 54 stipulates that ‘In any action brought in respect of any damage in which it is proved (a) that such damage was caused by a wild animal, or by an animal other than a wild animal, which the defendant knew, or must be presumed to have known, had a propensity to do the act causing the damage, and (b) that the defendant was the owner of or the person in charge of such animal, the onus shall be upon the defendant to show that there was no negligence for which he is liable in connection with such animal.’ 3
Personal Injury: Practice and Procedure in Europe
DEFENCES Contributory negligence offers a partial defence and necessity offers a complete one. The former will therefore reduce the claim proportionately to the degree of contribution, while the latter will effectively defeat the claim completely. However, a plaintiff can be found to be 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY Minors over the age of 12 can be held civilly liable.6 There is no statutory provision that would hold the parent liable for the action of his offspring, nor any Cypriot case law to suggest there is such a common law duty of care. A minor or mentally-incapacitated plaintiff can sue in his own right through a guardian and next friend. The court will appoint somebody to act on his behalf and in his interest if the child is a ward of the court. The legal guardian or guardian ad litem are likely to be appointed by the court.
JURISDICTION Place of domicile is defined by statute.7 The domicile will be a domicile of origin (place of birth) or domicile of choice (place in which an individual usually resides). In the case of a legitimate child born during his father’s lifetime, the domicile of origin of the child is the domicile of his father at the time of the child’s birth. The domicile of choice depends on the individual establishing a home with the intention of permanent or indefinite residence there.8 The domicile of origin prevails so long as the domicile of choice is in question.9 Where the domicile of the defendant is different to the place of the accident, Cypriot courts will refer to the judgment of the Supreme Court in Civil Appeal No 496710 and apply the rules of private international law as laid down by Dicey and Morris.11 __________________________________________________________________________________________________________________________________________
6 7 8
Cap 148, s 9. Sections 6–11 of the Wills and Succession Law, Cap 195. Section 9 provides ‘that no person shall be held to have acquired a domicile of choice in the colony by reason only of his residing there in Her Majesty’s naval, military, air or civil service’. This law was enacted in 1946 when Cyprus was a British Crown Colony, but today applies equally to soldiers of the United Nations and civil servants of other countries who are posted by their governments in Cyprus. 9 Section 10. 10 Jupiter Electrical (Overseas) Ltd v Savvas Costa Christides (27 June 1976). 11 Dicey, AV and Morris, JHC, Dicey and Morris on the Conflict of Laws, 11th edn, 1991, London: Stevens. 4
Cyprus If the accident occurs in Cyprus but the defendant is domiciled elsewhere, proceedings would be commenced in Cyprus.12 In such a case, it would be necessary to have the writ sealed for service abroad and a court order for substituted service to take place. For road traffic accidents there is no such need for service out of the jurisdiction due to the latest amendment to the Motor Vehicles (Third Party Insurance) Cap 333.13 It provides for substituted service on the insurer if the defendant resides out of the jurisdiction. The court will apply the lex loci commissionis regardless of the law of domicile of the parties. Lis alibi pendens may be pleaded as a defence if proceedings on the same subject matter and between the same parties are pending in another jurisdiction. The court may stay the Cypriot proceedings by applying the balance of convenience test and other relevant criteria. If the action is brought in one court, neither party has the right to ask that the proceedings be transferred to another court in the same jurisdiction, or to another jurisdiction entirely. Each district court is classified according to the financial value of the actions and the cause of action involved. A party may challenge the jurisdiction of the court, but once it has been decided that the court is seised with jurisdiction to try the case, the wishes of the parties in this respect become irrelevant.
LIMITATION PERIODS All limitation periods for personal injury are laid down by statute.14 Following the inter-communal conflicts between the Greek-Cypriot and Turkish-Cypriot communities in 1964, and the Turkish invasion in 1974, Parliament stayed the limitation period in order to allow rights of action against individuals in the occupied areas (where they are inaccessible) to be maintained.15 There is still a limitation period of two years, however, for fatal accident claims and all claims against insurers.16 Neither the parties nor the courts are allowed to extend the limitation period by consent. To bring an action against an insured defendant, seven days formal notice must be given to the insurers from the issue of the writ. Failure to give notice will excuse the insurer from satisfying a judgment.
__________________________________________________________________________________________________________________________________________
12 Courts of Justice Law, Cap 8, s 25(1) stipulates that every district court has jurisdiction to hear and determine all actions where ‘(a) the cause of action has arisen either wholly or in part within the limits of the district in which the court is established; or (b) the defendant or any of the defendants, at the time of the institution of the action, resides or carries on business within the district in which the court is established’. 13 Section 15B. 14 Limitation of Actions Act, Cap 15. 15 There is no statutory provision for the stay of this limitation period. 16 Civil Wrongs Act, Cap 148, s 58(20). 5
Personal Injury: Practice and Procedure in Europe
FUNDING Legal aid There is no legal aid scheme in Cyprus.
Contingency fees Lawyers do not operate on a contingency fee basis, but have a fixed level of charges which are regulated by the rules of the court.17
Legal expenses insurance Plaintiffs may not rely on legal expenses insurance. Home contents insurance policies do not cover legal costs, and there do not seem to be any special legal insurance policies which can be taken out.
Trade unions Unions are prohibited from assisting a member in either bringing or defending an action.18
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings Criminal courts do not have the power to award orders of compensation to the plaintiff, so it is left to the plaintiff to pursue a civil remedy for damages.
Criminal investigation When a person is injured, the police are always called and automatically start to investigate. The police will only commence criminal proceedings if their investigation reveals that a crime was committed. Proceedings can otherwise be instituted with the approval of the Attorney General. Local or foreign criminal proceedings will not interrupt the civil limitation period.
__________________________________________________________________________________________________________________________________________
17 Advocates Fees Rules. 18 Champerty. 6
Cyprus
Release of evidence It takes approximately three months to obtain police reports. Disclosure may be delayed by pending criminal proceedings. Copies of statements taken by the police in the course of their investigations may be made available to interested parties. There is a fee to pay to obtain the evidence in road traffic accidents only.19
Use of evidence in civil proceedings Where criminal proceedings are brought and result in a conviction, that conviction cannot be pleaded in the civil court unless the conviction rests on the admission of the accused. A foreign conviction could likely only be pleaded in the same way.
Criminal injuries compensation scheme There is no body for criminal injuries compensation in Cyprus.
THE LEGAL PROFESSION There is a fused system of legal practice in Cyprus, despite the fact that many Cypriot lawyers received their training at the English Inns of Court, where the distinction between barristers and solicitors has been preserved. Lawyers have the right to call themselves specialists in the field of personal injury. There is no association of personal injury lawyers. They are prohibited from advertising their services, but information about lawyers who specialise in personal injury can be obtained from the Bar List issued by the Bar Association. Cypriot lawyers have rights of audience in all levels of court all over the country. The only exception to this regards lawyers with less than three years experience in practice, who do not have a right of audience in the Supreme Court. If a person cannot find a lawyer willing to represent him, the court will appoint a lawyer ex officio for criminal proceedings. In civil proceedings the court will not interfere, leaving a party with the option of representing himself before the court. A foreign lawyer will require permission from the Supreme Court to appear before a Cypriot court.
__________________________________________________________________________________________________________________________________________
19 The cost at the time of writing is C£12. 7
Personal Injury: Practice and Procedure in Europe
INSURANCE Insurance requirements Insurance is compulsory for motor vehicles.20 Limitations on indemnity apply to damage to property but not to personal injury.
The uninsured driver Where the defendant is uninsured or in breach of the terms of his insurance agreement, the plaintiff will not be compensated by the insurance company. In exceptional cases, such as where the plaintiff suffered very serious injuries, compensation may be paid by the Motor Insurance Fund, which will adopt the claim.
Insurer as party to proceedings The plaintiff must always sue the tortfeasor. He does not have the option of suing the insurance company directly, even where the writ has been served on the defendant’s insurers because the defendant resides outside the jurisdiction.
DAMAGES Heads of damage The heads of damages available are pain, suffering, loss of amenity, general damages, special damages and private medical expenses.
Interest Interest is set at 6% on the damages awarded for the period of time between the date of accident and the date of judgment.21 The court has a residual discretion, however, to award a different rate of interest if it deems it appropriate.
Lump sum or periodic payments Structured settlements and periodic payments are not used in practice in Cyprus. Damages are generally payable in a lump sum. Damages are sometimes awarded in a foreign currency where commercial contracts are involved. __________________________________________________________________________________________________________________________________________
20 Motor Vehicles (Third Party) Insurance Law, Cap 333. 21 Section 58A of the Civil Wrongs Act, Cap 148. 8
Cyprus
Provisional and interim payments There is no provision for interim payments under the Civil Procedure Rules. They are made only very rarely on compassionate grounds at the discretion of the defendant insurer. Provisional damages are not used. Once a case is settled or adjudicated it cannot be reopened. The possibility of future deterioration of health is taken into consideration when calculating the damages initially. Compensation for the likelihood of this risk has already therefore been included in the settlement or award.
Punitive damages The courts do not award punitive damages in personal injury cases.
Bereavement damages Bereavement damages are available to the spouse and dependants of the deceased. Where the deceased was under the age of 25 and was never married, they may be claimed for the benefit of the parents of the deceased.22 The sum awarded is C£6,000 at the time of writing.23
Level of damages The publications used in Cyprus which detail and update levels of damages are primarily Kemp and Kemp,24 and Nicolaides’ Personal Injury Claims.25
Principles and guidelines The guiding principles for assessment of the quantum of damages to be awarded is restitutio in integrum, ie restoring the plaintiff to the position he would have been in had the injury not been sustained. Despite this, quantum has until recently remained remarkably low. In the last three years, the Supreme Court judges have started making reference to the enhanced value of human life, pain and suffering, and there has been an overall increase in the quantum of damages awarded for all types of personal injury. The response to this new judicial liberalism was an increase in insurance premiums of approximately 30% in 1995. __________________________________________________________________________________________________________________________________________
22 Section 58(*) and (10) of the Civil Wrongs Act, Cap 148. 23 Section 58(9) of the Civil Wrongs Act, Cap 148. 24 Kemp, DAM and Kemp, MS, The Quantum of Damages in Personal Injury and Fatal Accident Claims, revised edn, London: Sweet and Maxwell. 25 Nicolaides, F, Personal Injury Claims, 1987, Cyprus: Zavallis Press Ltd. 9
Personal Injury: Practice and Procedure in Europe
Social security and employers’ payments Social insurance benefits are paid regardless of the compensation awarded by the court. Such benefits are not refundable on receipt of an award of damages. In the absence of special agreement, employers have no obligation to pay salary during incapacity.
PROCEDURE Commencing proceedings Service A claim is initiated by writ against the defendant. Notice to the insurance company concerned should be sent within seven days of the filing of the writ.26 Cross-border service requires leave of the court, which can be obtained to serve notice of the writ on the defendant out of the jurisdiction if the defendant resides out of Cyprus and the writ cannot be served upon him within the jurisdiction. A defendant can bring in a third party to the action by application to the court. The plaintiff can bring in a second defendant such as an employer who might be vicariously liable for the act of the defendant. If more than one person is responsible for the injury to the plaintiff, they can all be joined as defendants in the same action. If one of more defendants appeal, only his liability is retried. The rest of the judgment against the other defendants is final.
Level of the court Proceedings will be commenced in the district court with competent jurisdiction.
Court management The court will give directions on how to proceed with the case at the summons for directions stage of proceedings which takes place after the pleadings have closed. The average time from the commencement of civil proceedings to the court hearing is between 6–12 months.
Evidence A local lawyer should be instructed from the outset, as the police will only give information to a lawyer and to the insurance company concerned. The Cypriot legal system is adversarial in nature. The onus is therefore on the parties to a civil action to obtain their own evidence. __________________________________________________________________________________________________________________________________________
26 Cap 333, s 10. 10
Cyprus Patients do not have a legal right to medical records or details of treatment. A medical report will be made available for examination on payment. A hospital will provide a medical report on application by a lawyer to the lawyer or the patient. The court can issue an order for the release of medical records by issuing a summons.
Witnesses The court will not instruct its own independent experts. Evidence is given mainly by way of written documents if both parties consent. Witnesses can be compelled by summons to attend court to give evidence. A party can be compelled to disclose his evidence by discovery. Consent of the parties is needed to submit sworn depositions by the parties and witnesses who reside outside the jurisdiction.
Settlement procedures Defendants can make a payment into court before a case is heard. This can be advantageous in respect of costs, in that costs are not awarded against a defendant who makes a payment into court if the plaintiff fails to obtain judgment for an amount larger than that paid into court.
ENFORCEMENT PROCEEDINGS Enforcement procedures include writs of fieri facias which direct the sheriff to seize and sell all the defendant’s movable assets, attachments for physical internment of the defendant, sale of moveables, and bankruptcy proceedings. It is not costly to seek enforcement. It is up to the parties to seek it, but it is carried out through the courts. Enforcement is likely to be a problem where the defendant is insolvent. Interim orders can be enforced by imprisonment or attachment. Cross-border enforcements are only possible if a bilateral agreement between the countries is in force.
COSTS The losing party generally pays the winner’s costs. If a foreign and a local lawyer have been involved, the costs of both solicitors can be recovered from the losing party.
11
CHAPTER THREE
DENMARK
LIABILITY In general, negligence is fault based (culpa) with a standard of care based on reasonableness.1 The burden of proof rests on the plaintiff. Particular types of harm include the following characteristics: • Road traffic accidents are governed by a no-fault scheme.2 • Employer’s liability is based on a no-fault system for lack of future earnings and employment prospects, and the general disability caused by the accidents.3 Claims for pain and suffering and lost, past earnings require proof of the employer’s negligence. • Medical negligence is governed by legislation for patient insurance, imposing a standard of care for doctors based on the reasonable practice of his peers. It is covered by a compulsory liability insurance scheme via the private-insurance-pool system. • Product liability is now governed by a no-fault scheme in accordance with European Union regulations.4 • Occupier’s liability is fault based, with a reversed burden of proof. • Accidents caused by animals are governed by various no-fault schemes.5 • Environmental accidents are governed by a new regime of strict liability.6 • Train and aeroplane accidents are governed by no-fault schemes.7
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1
2 3 4 5 6 7
For an excellent introduction to Danish accident compensation and tort law, see von Eyben, B, ‘The Danish System in the Perspective of the Swedish Alternative,’ in Oldertz, C and Tidefelt, E (eds), Compensation for Personal Injury in Sweden and other Countries, 1986, pp 243–68, Juristforlaget; and Norgaard, J, ‘Torts and Insurance in Danish Law’, in Danish Law in a European Perspective, 1996, Ch 11. Objektivt Ansvar. Article 3-19-2 of the Danish Code. Danish Act on Product Liability 1989, enacting Council Directive 1985.374. Personal injuries caused by dogs are governed by the Danish Act on Liability caused by Dogs 1937. Runaway cows, horses and wild animals are regulated by an Act of 1683. Act No 225 of 6 April 1994. These are the Railway Damage Compensation Act 1921, and Law of Aviation 1960, respectively. 13
Personal Injury: Practice and Procedure in Europe
DEFENCES Available defences include self-defence, consent and contributory negligence. Generally the defence of contributory negligence only reduces the compensation payable to the plaintiff. If the plaintiff is considered to have acted entirely at his own risk, he can be 100% contributorily negligent and his claim will be ousted.
PERSONS UNDER A LEGAL DISABILITY Minors can be held liable from the age of five. Parents are not liable for the acts of minors unless they were negligent themselves. A minor cannot sue as a plaintiff in his own right. The court will appoint someone to act on his behalf and in his best interests, usually the closest relative of the minor. Similarly, where a plaintiff or defendant is not mentally capable of conducting his own affairs, a guardian will be appointed by the court.
JURISDICTION Place of domicile is defined as being the place where a person stays and lives without intending to return somewhere else.8 If the accident happened in Denmark and the defendant is domiciled elsewhere, proceedings will be commenced in either the place of domicile of the defendant or the place of the accident. Neither party alone has the right to ask for the proceedings to be transferred to another court. For example, the defendant cannot normally ask for the proceedings to be transferred from the place of the accident to his domicile, but the parties can agree that the case should be transferred to another court. According to Danish private international law, the law of the place of the accident must be used before the Danish courts, unless both parties are Danish and live in Denmark, even though the accident happened in another country.
LIMITATION PERIODS The general limitation period in civil law is five years from the date of the accident. If the tortfeasor cannot be found or there is a delay in actually suffering the damage, the limitation period will run from the date of knowledge of the damage.9 Danish insurance companies are allowed to invoke a limitation period of two years from the expiry of the year in which the plaintiff learned of the damage. The limitation period __________________________________________________________________________________________________________________________________________
8 9
Animus revertendi in accordance with the Brussels Convention 1968. This is referred to as a suspension of the limitation period. 14
Denmark for accidents caused by some animals is 20 years from the dated of the accident.10 Cases of product liability include a three year limitation period, while cases of medical negligence operate with a limitation period of 10 years. The commencement legal proceedings or recognition of liability by the defendant will interrupt a limitation period. The parties can agree to extend the limitation period by consent to no overall maximum. The courts, however, have no discretion to extend the limitation period. There are no special rules for circumstances in which the plaintiff is a minor or a mental patient.
FUNDING Legal aid The financial circumstances of the applicant is the main criterion for eligibility under the Danish legal aid scheme. No contribution is expected by the applicant towards his costs. It is difficult, but not impossible, to obtain legal aid for an action outside Denmark. A foreigner who is not resident in the jurisdiction can qualify for legal aid according to the same rules applied to residents. Applications are sent to the Civilretsdirektoratet. To qualify for legal aid, the applicant must earn under DKK 185,000 per year and have a good chance of success on the merits of his case. There is no set limit to which a legal aid board will fund. The legal aid board has no right to recoup its expenses from the damages awarded to the plaintiff where the defendant is unable to pay costs.
Contingency fees Danish lawyers are prohibited from working on a contingency fee basis. They calculate their charges based on the type of work involved and the amount of time spent on it. If a case is settled out of court, the lawyer usually charges two-thirds of what he would have charged had the case gone to court.
Legal expenses insurance Legal expenses insurance is available as part of other policies such as householder’s __________________________________________________________________________________________________________________________________________
10 Danish Law of 1683, supra. 11 Lyngso, P, Danish Insurance Law, 1992, pp 116–19, Deventer, The Netherlands: Kluwer. 12 Home contents insurance in Denmark will cover expenses of up to DKK 75,000, with a deductible of DKK 2,500. 15
Personal Injury: Practice and Procedure in Europe insurance.11 These are becoming increasingly popular.12
Trade unions Unions will assist members in either bringing or defending an action if the claim involves an accident at the workplace.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings Danish criminal courts have the power to award compensation to the plaintiff on his submission of a formal claim. The police are obliged to ask the plaintiff if he would like to file a claim. As similar to civil awards, the criterion for assessment of criminal damages is the injury itself. If the defendant is unable to pay, the State will usually not pay compensation. In a very few cases of violence, a small amount of compensation may be offered.13 The board has redress against the defendant. It will not investigate a case directly and does not reserve the right to nominate a lawyer for the claimant. The awarding of damages by a criminal court will not prevent a civil claim being made if the Danish Criminal Act 1930 gives specific rights to do so in those particular circumstances.
Criminal investigation The police are not always called when a person has been injured, and will not automatically start to investigate. If they are called to the scene of an accident, they will start criminal proceedings if they feel it is warranted. The police will often reconstruct an accident, especially serious motor vehicle accidents. There are no other bodies which must be informed when a person has been injured.
Release of evidence The police will usually make their evidence readily available by formal request. As soon as a police report is issued, the solicitor will have access to it. This will take 2–3 weeks. Normally there is no fee for this.
Use of evidence in civil proceedings __________________________________________________________________________________________________________________________________________
13 Including cases of rape. 16
Denmark A strong division between civil and criminal proceedings has been maintained in cases of personal injury, with neither bearing much influence evidentially or procedurally on the other. A criminal conviction cannot be pleaded in the civil court. Criminal proceedings do not interrupt the civil limitation period unless they occur in a foreign jurisdiction.14
Criminal injuries compensation scheme The Danish compensation board for criminal injuries is called the Voldsoffererstatningsnaevnet.
THE LEGAL PROFESSION There is no distinction between solicitors and barristers in Denmark. Lawyers do not have the right to call themselves specialists in the field of personal injury. Danish lawyers are allowed to advertise the fields in which they practice as long as they do not claim to be specialists or have special expertise in these areas. There is no association of personal injury lawyers, but information can be obtained about lawyers who specialise in personal injury from the Danish Law Society.15 Danish lawyers have rights of audience in the courts of first instance all over the country, including the Faroe Islands and Greenland. Where a person is legally aided, the only restriction on choice of lawyer is that he must be well regarded. If a lawyer cannot be found who is willing to act under the legal aid scheme, the court will appoint a lawyer ex officio.
INSURANCE Insurance requirements There are limitations on indemnity, in cases of road traffic accidents16 and aeroplane crashes, set by the Danish Road Traffic Act and the Warsaw Convention 1971 respectively.17
The uninsured driver __________________________________________________________________________________________________________________________________________
14 15 16 17
Sometimes criminal proceedings in the Scandinavian countries will interrupt the limitation period. Advokatsamfundet. 50 m Danish crowns (DKK). 100,000 Special Drawing Rights (SDRs) per person. SDRs are published daily by the International Monetary Fund in financial newspapers around the world. At the time of writing, 1 SDR is approximately equal to DKK 8.33. 17
Personal Injury: Practice and Procedure in Europe In some cases the defendant’s non-compliance with the terms of the insurance contract will have no impact on the insurer’s obligation to pay. For example, since car insurance is for the car itself rather than the driver, it will not matter whether there has been a breach of the terms of the insurance agreement. Furthermore, it is impossible to own a car without insuring it in Denmark. If the defendant is not known, a special body will pay compensation to the plaintiff.18 It should be formally notified of the proceedings by letter.
Insurer as party to proceedings The insurance company can be sued directly where there is compulsory insurance, except in cases of vicarious liability where the plaintiff will either sue the employer19 or the body which administers the workers’ compensation scheme.20
DAMAGES Heads of damage Heads of damage include temporary loss of earnings, pain and suffering, permanent injury, permanent loss of earning capacity, compensation for loss of support, and compensation for humiliation.
Interest Interest accrues on damages from the date of the injury.21
Lump sum or periodic payments Damages are usually awarded in a lump sum.
Provisional and interim payments Interim payments are awarded where a claim will take some considerable time to finalise. The plaintiff must make a reservation for the full amount of his claim at this time. Sometimes insurers will make an interim payment on a voluntary basis to avoid __________________________________________________________________________________________________________________________________________
18 Dansk Forening for International Motorkoretojsforsikring (DFIM), in accordance with Circular No 241 of 8 November 1961. 19 For claims for pain and suffering and lost past earnings. 20 Arbejdsskadestyrelsen. For claims for lost future earnings, employment prospects and the general disability caused by the accident. 21 At time of writing the rate of interest was 9.25%. 18
Denmark proceedings for the amount which can be assessed at that time, and to save interest on he claim, since interest for most claims runs from the date of accident. Provisional damages are not used in Denmark since a claim can be re-opened at any time without any kind of agreement having to be made. If the plaintiff develops a side-effect or suffers an unforeseeable deterioration of his condition in the future, a further claim can be made.
Punitive damages Punitive damages are not awarded very often, but may be used by the courts where the tortfeasor has acted with extreme carelessness.
Bereavement damages Bereavement damages are available to spouses and children of the deceased. The amount available to spouses is 30% of the amount the deceased would have gained had he lost 100% of his ability to work. Despite this, the amount will be at least DKK 331,000. Bereavement damages payable to children amount to approximately DKK 9,000 per year until the child is 18 years of age. In certain cases, the parents of the deceased can claim them where the child was the main financial provider to the family.
Level of damages Damages for personal injury are quantified as a percentage according to the degree of incapacity suffered by the plaintiff. The percentages are fixed by a normative table.22 In 1996, permanent injury of 100% was valued at DKK 302,000.23 Damages for pain and suffering are awarded at the standardised rate of DKK 150 per day of ‘sickness in bed’ and DKK 70 per day for ‘sickness out of bed’.24 The total amount awarded is normally capped at approximately DKK 40,000. Certain minimum thresholds exist. For example, no damages are payable for permanent injury of less than 5%, and no compensation for loss of earnings is payable for permanent loss of earning capacity of less than 15%. There are also some maximum thresholds. For example, the maximum amount of damages payable for lost earnings is capped at DKK 528,500 per year. Where a claim is likely to render an award of damages of less than DKK 10,000 it may not be worthwhile for the plaintiff to proceed. Many plaintiffs carry ‘trial loss’
__________________________________________________________________________________________________________________________________________
22 For example, the loss of an eye is fixed at 20% and the loss of a leg at 65%. 23 Norgaard, note 1 above, p 282. 24 Ibid. 19
Personal Injury: Practice and Procedure in Europe insurance, however, which will cover the costs of taking such cases to court.
Principles and guidelines The Danish courts are, comparatively speaking, conservative in awarding damages since there is a comprehensive social welfare system in place. The Danish Liability Act 198425 provides a standard set of regulations for the assessment of damages to be awarded to the plaintiff.26 Updated levels of personal injury compensation are legislated by Parliament. The Danish Law Society details levels of damages twice a year in the members’ magazine. Damages are not usually awarded in a foreign currency, but the amount of compensation required by a plaintiff in a foreign jurisdiction can be assessed according to the costs of his needs in that jurisdiction, and then converted to Danish crowns.
Social security and employers’ payments All benefits received from Danish social services are deducted from the plaintiff’s claim. Since 1 January 1996, Danish social services have had full recourse against tortfeasors for sickness allowances. These will have been paid by social services from the time of the accident, or three weeks after the accident, where the victim had been in that particular employment for 13 weeks. The employer is, however, obliged to pay the employee sick leave for the first three weeks of illness or incapacity. Only after that period will sick leave be paid by social services. Workers’ compensation is paid by the State for permanent work-related injuries, and levels of workers’ compensation are generally more generous than the amount of damages available under the Danish rules of tort law. Although receipt of workers’ compensation does not bar an action in tort, there is often nothing left after the deductions of benefits from the damages awarded, and so litigation is rarely worthwhile.27 Work-related injuries causing short-term incapacity do not include indemnification for loss of income above a fixed level. Injured employees retain an incentive, therefore, to sue for damages.
PROCEDURE Commencing proceedings Service __________________________________________________________________________________________________________________________________________
25 Act No 228 of 23 May 1984. 26 Erstatningsansvarsloven. 27 Von Eyben, note 1 above, p 245. 20
Denmark A claim is initiated by writing to the defendant and, if he is insured, to his insurer as well. Once the defendant has refused to assume liability, a writ is issued. It is not necessary to instruct a local lawyer at the outset, as a foreign lawyer can carry out the initial requests for information from the authorities investigating the accident. However, the issuing of a writ in Denmark and assistance in a Danish court case will almost always require Danish legal counsel. Local service of proceedings is carried out by the court. If both parties have legal representation, it will usually be agreed that no service of proceedings is needed. When this happens, the writ will be sent to the court with a note that the parties agree that no service is necessary, and the court will return the writ to the plaintiff’s lawyer after a date and time for the first hearing has been set. The plaintiff’s lawyer then notifies the defendant’s lawyer of this, along with the original writ for his notation on the document itself, confirming that service of proceedings is unnecessary. The original writ is then returned to the plaintiff’s lawyer who presents it in court at the first hearing. Cross-border service is governed by the Hague Convention.28 A defendant can bring a third party into proceedings by issuing a separate writ. A plaintiff can bring in a second defendant. This is often done in employer’s liability cases, where the employer is vicariously liable for the tort of an employee. If there is more than one tortfeasor, they can all be joined as defendants in the same action. If only one of more defendants appeal, it is only that defendant’s involvement which is retried.
Level of court All claims of less than DKK 500,000 commence at the level of the lower court.
Court management The Danish legal system is adversarial in nature. The court will not give directions on how to proceed with the case. The parties have full control of the proceedings which usually last 8–12 months from the date of commencement to the court hearing itself.
Evidence The onus is primarily on the plaintiff to obtain the evidence. Danish courts do not normally recognise expert independent witnesses and experts, however. The parties should agree on the expert testimony to be presented to the court. The court will only interfere if they fail to do so.
__________________________________________________________________________________________________________________________________________
28 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965. 29 Act on Public Access to Administrative Files 1993. 21
Personal Injury: Practice and Procedure in Europe There is a statutory right in Denmark to see one’s own medical records.29 They will usually be released directly to the lawyers.
Witnesses Witnesses normally give their evidence in person rather than by way of written documents or sworn depositions, and can be compelled to attend court by police escort.
Settlement procedures There are no payments into court by the defendant before a case is heard.
ENFORCEMENT PROCEEDINGS Both interim orders and final awards of damages are enforceable. Enforcement is likely to be a problem where the defendant has no money or cannot be found. It is up to the parties to seek enforcement. Enforcement procedures are generally carried out through the sheriff’s office. The cost will be DKK 300 plus 0.5% of the amount above DKK 3,000, payable as a court fee. The cost of lawyers’ fees will be additional.30 Cross-border enforcement is governed by the Brussels Convention31 and the Hague Convention.32
COSTS The losing party generally pays the winner’s costs as set by the court in determining the award. The winner’s legal costs could well exceed the amount set by the court, however, in which case it is left to the winner to pay the rest. Only in cases of legal aid is the lawyer forbidden to charge more than the costs set by the court. When a case is settled out of court, the parties usually carry their own costs. The costs of a foreign lawyer are unlikely to be recovered. However, there are no strict rules on this.
__________________________________________________________________________________________________________________________________________
30 For further details see Richardson, J, Debt Recovery in Europe, 1993, Chapter 5, London: KPMG Peat Marwick. 31 See note 7 above. 32 See note 21 above. 22
CHAPTER FOUR
ENGLAND AND WALES
LIABILITY Most cases are brought in negligence, where the standard of care is that of the reasonable man with the burden of proof resting on the plaintiff. Particular types of harm include the following: • Road traffic accidents are governed by fault-based liability. • Employer’s liability is governed by fault, according to which the employer owes a duty of care to provide a safe system of work based on reasonable practice, and by duties imposed by statute, breach of which can give rise to liability.1 • Medical negligence is based on fault. The burden is on the plaintiff to prove that the defendant acted outside normal medical practice.2 • Fatal accidents are governed by a fault-based regime.3 The burden is on the plaintiff to prove that the defendant’s negligence caused the death and financial loss to the dependants of the deceased. • Consistent with the EC Directive on Product Liability, this area is governed by a strict liability regime, subject to certain defences.4 • Occupier’s liability is based on a standard of reasonable care under both statute and common law.5 • Accidents caused by animals are based on both fault and strict liability, depending on the category of animal.6 • Environmental accidents are governed by both common law and statute and based primarily on fault. The burden of proof is on the claimant to show fault in either nuisance or negligence.7 • In cases of train accidents the plaintiff must prove fault. • Aeroplane accidents are governed by the Civil Aviation Act 1949, which imposes a regime of strict liability, and the Warsaw Convention 1929. __________________________________________________________________________________________________________________________________________
1
2 3 4 5 6 7
For example, Wilsons and Clyde Coal Co Ltd v English [1937] 3 All ER 628, HL, and regulations introduced following the EC directives on health and safety in the workplace. There is strict liability imposed on employers for injuries caused by defective equipment. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. Fatal Accidents Act 1976. 85/374/EEC and Consumer Protection Act 1987. Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984. For example, the Animals Act 1971, Dangerous Dogs Act 1991 and Occupiers’ Liability Acts 1957 and 1984. Cambridge Water v Eastern Counties Leather plc [1994] 1 All ER 53. 23
Personal Injury: Practice and Procedure in Europe
DEFENCES The defences which apply to cases of negligence include volenti non fit injuria, contributory negligence, and novus actus interveniens. A case may fail for want of proof of causation, foreseeability or remoteness of damage. Most defences will oust the injured person’s claim, but contributory negligence will reduce the compensation proportionately.
PERSONS UNDER A LEGAL DISABILITY A person under 18 (a minor) who is a defendant can be held liable at any age. He is sued through a parent as guardian. The parents of the minor will only be held liable for his negligence if they were also in breach of their own duty of care to the plaintiff. As a plaintiff, a minor can sue in his own right but must act through a ‘next friend’. Court approval is not necessary before proceedings are instituted, unless there is no legal guardian (or ‘next friend’) for the minor. The court must then appoint one for proceedings to be commenced. In the case of a plaintiff of any age who is mentally incapable of conducting his own affairs, the court of protection will appoint a next friend to bring the action or ask the official receiver to intervene on behalf of the person.
JURISDICTION If the accident happened in England or Wales and the defendant is domiciled elsewhere, proceedings must be commenced in either the place of domicile of the defendant or the place of the accident. Place of domicile is defined as being the place where a person stays and lives, without the intention of returning somewhere else.8 Under the applicable rules of private international law, the laws of the place of the accident must be used before English courts, unless both parties are from there and live there, even if the accident happened in another country.9 Either party has the right to ask for the proceedings to be transferred to another court.
LIMITATION PERIODS The limitation period for cases of personal injury is generally three years from the date of damage, which is generally the date of the accident, or from the date of knowledge __________________________________________________________________________________________________________________________________________
8 9
Animus revertendi, Brussels Convention 1968. Private International Law (Miscellaneous Provisions) Act 1995, Part III. 24
England and Wales of the injury, the identity of the defendant and that it was attributable to an act or omission of the defendant.10 The parties can extend the limitation period by consent if the defendant waives his right to rely upon it as a defence. The defendant may do so by either he or his insurer expressly declaring to the plaintiff that they will not rely on the limitation period. There is no maximum to which the limitation period can be extended. The court also has discretion to extend the limitation period and will do so if it appears equitable having due regard to the degree to which the limitation period prejudices the plaintiff or any person whom he represents, and the degree to which the decision of the court to extend the limitation period would prejudice the defendant or any person he represents.11 If the plaintiff was under 18 at the time of the accident, the limitation period does not start until he or she reaches the age of 18. If the patient was a mental patient at the time, or as a result, of the accident, the limitation period will start from when mental incapacity ceases. The limitation period can be interrupted by the death of the injured person before the expiration of the limitation period.12 The time limit for the causal action for the estate of the deceased is three years from the date of death, or from the date of the personal representatives’ knowledge, whichever is later.13
FUNDING Legal aid Subject to eligibility, legal aid is available to a plaintiff to pursue a personal injury action if the claim is worth more than £1,000. In order to qualify for legal aid, the plaintiff must satisfy both a means and merits test. He must therefore be financially eligible and also show that he has reasonable grounds to take the action. If a person qualifies for legal aid, there is often a contribution payable which will be calculated on the basis of the plaintiff’s means. Legal aid certificates are generally granted up to a financial level, at which point further application must be made to extend them. If a legally-aided plaintiff wins the case but the defendant does not pay all the plaintiff’s costs, the Legal Aid Board is entitled to recoup its expenses from the damages awarded to the plaintiff. __________________________________________________________________________________________________________________________________________
10 Section 14 of the Limitation Act 1980. 11 Section 33(3) of the Limitation Act 1980. This section lists some of the matters which should be taken into account in determining whether it would be equitable to allow an action to proceed. For example, the length of, and the reasons for, the delay on the part of the plaintiff will be considered, along with the extent to which the defendant is, or is likely to be, less cogent than if the action had been brought in time. 12 Law Reform (Miscellaneous Provisions) Act 1931. 13 Section 1 of the Law Reform (Miscellaneous Provisions) Act 1931. 25
Personal Injury: Practice and Procedure in Europe Legal aid can be obtained for actions outside the jurisdiction on the same basis as proceedings within England and Wales. In practice, it is more difficult as, inter alia, one is expected to apply for legal aid in the country in which the applicant wants to bring proceedings.
Contingency fees Lawyers are allowed to operate on a limited conditional fee basis.
Legal expenses insurance Legal expenses insurance is increasingly relied upon by litigating parties. Some home contents insurance policies offer assistance with legal expenses.
Trade unions Unions will often assist a member in either bringing or defending an action, depending on union rules.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings The criminal courts of England and Wales have the discretion to award criminal compensation to victims of crime, without formal application by the injured parties. The awarding of damages does not prevent a civil claim being made, but will be deducted from any civil claim.
Criminal investigation The police are not always called to the scene of an accident. Under s 170 of the Road Traffic Act 1988, however, the driver must stop and provide his name and address, and produce a certificate of insurance to anyone having reasonable grounds for requiring information. If he fails to provide this information at the time of the accident, he must report the accident and produce a certificate of insurance to the police as soon as is practically possible, and in any case, within 24 hours of the accident. The police will only reconstruct an accident in exceptional circumstances where there has been a criminal offence and they are looking for witnesses. The police do not automatically commence proceedings, but if they consider the matter suitable for prosecution they will pass the file to the Crown Prosecution Service who will conduct the prosecution.
26
England and Wales Criminal proceedings do not interrupt the civil limitation period, and neither will prosecution in a foreign jurisdiction. If the accident happened in a foreign jurisdiction, the English courts apply the foreign limitation period (Foreign Limitation Periods Act 1984, s 1).
Release of evidence In practice, the police will prepare a report where there have been injuries, especially for road traffic accidents. The police will make their report available to the solicitor for a prospective plaintiff for a fee. It is also possible to interview the police officer who attends the scene of the accident for an additional fee. The police report will usually only be made available after criminal proceedings have been concluded, or the police have made a decision not to prosecute.
Use of evidence in civil proceedings A criminal conviction may be pleaded in the civil court. The effect will be to reverse the burden of proof, so that the defendant must prove, on the balance of probabilities, that the conviction was erroneous or is irrelevant to the civil proceedings, or deny the facts on which the criminal conviction was based.
Criminal injuries compensation scheme The Criminal Injuries Compensation Authority may pay compensation to a plaintiff injured as a result of certain road traffic offences.
THE LEGAL PROFESSION Lawyers in England and Wales have the right to call themselves specialists in the field of personal injury if they are approved by the Law Society and have satisfied certain professional criteria. They may advertise their services. Information about lawyers who specialise in personal injury can be obtained from the Law Society and from the Association of Personal Injury Lawyers. Barristers and solicitors both have rights of audience in all lower courts of first instance (county courts) in England and Wales, and there is no limitation in respect of the regional areas in which they may practise. Claims certified as being in excess of £50,000 must be issued in the High Court, where solicitors’ rights of audience are restricted. Where a person is legally aided there are, in theory, no restrictions on choice of lawyer. In practice, however, there are lawyers who do not undertake legal aid work. If a person cannot find a lawyer willing to act under the legal aid scheme, the Official Solicitor to the Supreme Court can act for people who cannot legally act for 27
Personal Injury: Practice and Procedure in Europe themselves (ie people under 18 years or who are mentally ill) and only then after a judge has agreed that the person’s rights cannot be safeguarded without his help.
INSURANCE Insurance requirements Insurance is compulsory for road traffic accidents, employers’ liability and aeroplane accidents. There are some limitations on indemnity. For example, the Road Traffic Act requires insurers to provide unlimited cover for liability in respect of injury to all persons with the exception of the driver of the vehicle and for a minimum of £250,000 in respect of damage to property arising out of any one accident.14 Compulsory insurance is difficult to enforce. The only time proof of insurance is required is when a vehicle is taxed, and proof at that time is only that the vehicle is insured for the day the tax is due. Where a vehicle has registration plates of another EU country, or a country which is a signatory to the multilateral guarantee agreement of the green card system, such vehicles are deemed to be insured by the green card bureau of the country in which they are being used. Any damage caused by such a vehicle will be paid for in accordance with the minimum insurance requirements of the Road Traffic Act. However, it is considered that the regular use of a foreign registered vehicle would be noted by the police, although the movement of these vehicles is difficult to monitor, particularly as there are open borders. In such a case, the Motor Insurers’ Bureau may provide compensation to the plaintiff on formal notification of the claim by letter.15
The uninsured driver Where the defendant omits to take out insurance cover, the plaintiff may not be paid by the insurer. In road traffic accidents, the Motor Insurers’ Bureau will satisfy any judgment against the uninsured defendant provided notice of proceedings is given within seven days of commencement of proceedings, and the judgment remains unsatisfied for seven days. It is also possible to receive compensation from the Motor Insurers’ Bureau where the driver of the vehicle that caused the accident cannot be found.
Insurer as party to proceedings Proceedings cannot be brought against the tortfeasor’s insurer directly. In the event that an action against the tortfeasor is successful and an insurer fails to meet its obligations __________________________________________________________________________________________________________________________________________
14 Section 145(4)(b) of the Road Traffic Act 1988. 15 Uninsured Drivers Agreement dated 21 December 1988. 28
England and Wales under the terms of s 152 of the Road Traffic Act 1988, then the judgment may be enforced against the insurer directly. Formal notice must be given to the insurers to secure the insurance cover.16 If the defendant is in breach of terms of his insurance agreement, the plaintiff will be protected by the provisions of the Road Traffic Act which precludes an insurer avoiding his obligations under the Act, even where the vehicle is being driven by an unauthorised driver, including an unidentified thief, provided proper notice under s 152 has been served.17
DAMAGES Heads of damage The heads of damages under which an injured person can recover include the following: • General damages. This includes past, present and future pain and suffering caused by the injury, including psychological injury. This also covers loss of amenity, which includes loss if enjoyment of life.18 • Special damages. This includes past pecuniary loss 19 as well as increased expenditure caused by the accident.20 • Property damage. This includes damage to a motor vehicle and loss consequential thereon. • Third party losses. This includes care voluntarily provided by, eg a relative. Damages are broadly based on the third party’s loss of earnings, or the net cost of employing a carer. • Future losses. This includes loss of future earnings, loss of earning capacity, the cost of future care, and future expenses.
Interest Interest accrues on damages at the discretion of the court. Interest on special damages accrues at half the special account rate from the date of the accident to the trial.21 Interest on general damages is 2% from service of proceedings. There is no interest on damages for future loss. __________________________________________________________________________________________________________________________________________
16 Section 152(1)(a) of the Road Traffic Act 1988 provides that notice of the commencement of proceedings must be given to the insurer either before or within seven days of commencement. 17 Section 151 of the Road Traffic Act 1988. 18 For example, inability to pursue a hobby, loss of enjoyment of work, and impairment of housekeeping ability and other general tasks. 19 For example, loss of earnings. 20 For example, medical expenses, travelling expenses, cost of help in the home or nursing care. 21 The special account rate at the time of publication is 8%. 29
Personal Injury: Practice and Procedure in Europe
Lump sum or periodic payments Damages are usually awarded by way of lump sum. Recently structured settlements have been developed whereby periodic payments are made from an annuity purchased from the lump sum damages. These have tax and other advantages. Damages can only be awarded in this form by agreement of the parties, as the courts have no power to impose a structured settlement on a plaintiff.
Provisional and interim payments The courts will award interim payments where it will take time for an award to be finalised. Provisional damages may be awarded where there is a risk of a serious deterioration in the plaintiff’s condition sometime in the future.22 The plaintiff may return for a further amount if this happens.
Punitive damages The courts do not generally award punitive (referred to as exemplary) damages in England and Wales, but may award aggravated damages.
Bereavement damages Bereavement damages are available to the spouse of the deceased, and to some other family members such as the parents of children under 18 years of age at the time of death.23
Level of damages Certain publications detail and update levels of damages.24 There are cases in which the damages likely to be awarded are too small to proceed with a claim. The successful claimant must bear his own costs for claims of less than £1,000, and no award will be made for legal costs other than a small, fixed fee.
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22 Supreme Court Act 1981; Willson v Ministry of Defence [1991] 1 All ER 638. 23 Fatal Accidents Act 1976. A sum of £7,500 is awarded for death after March 1991; £3,500 is awarded if the death was earlier. 24 Kemp, DAM and Kemp, MS, The Quantum of Damages in Personal Injury and Fatal Accident Claims, revised edn, London: Sweet and Maxwell, as well as Butterworths Personal Injury Litigation Services, Personal Medical Injuries Lawletter and Current Law (Sweet and Maxwell). 30
England and Wales
Principles and guidelines The guiding principle for assessment of the quantum of damages to be awarded is restitutio in integrum, ie restoring the plaintiff to the position he would have been in had the injury not been sustained. The courts will not award damages in a foreign currency in personal injury cases. In cases relating to minors (persons under 18), court approval is necessary for any settlement once proceedings are instituted.
Social security and employers’ payments Reimbursement to the State of some of the benefits paid to the plaintiff as a consequence of the accident is made by the compensator (the defendant) to the Compensation Recovery Unit. This system is currently under review. Employers have no statutory obligation to pay salary during incapacity, although such an obligation may exist in the contract of employment. They have an obligation to pay statutory sick pay.
PROCEDURE Commencing proceedings Service Proceedings in the High Court are started by service of a writ and a statement of claim, which may be endorsed on the writ or contained in a separate document served within 14 days together with a medical report and a schedule of special damages. The writ itself must be served within four months of issue and can be served personally on the defendant, or by first class post, or through a letterbox. Other documents may be served by leaving them at, or posting them to, the address of the person to be served. In the county court, proceedings are commenced by filing a summons together with particulars of a claim, a medical report and a schedule of special damages; the court then usually serves the summons by post. There are special rules for cross-border service of proceedings, depending on which, there is an international convention in force. Either a specific civil procedure convention dealing with service of court documents or the Hague Convention25 will usually apply.26 If more than one person is responsible for the damage to the plaintiff they can all be joined as defendants in the same action. This will sometimes require the leave of the __________________________________________________________________________________________________________________________________________
25 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965. 26 Supreme Court Practice Order 72. 31
Personal Injury: Practice and Procedure in Europe court. The defendant may bring in a third party by issuing third party notice proceedings after giving his own notice of his intention to defend. No leave is needed to issue the notice unless the defence has been served, in which case the defendant must seek leave by an ex parte application. If one defendant appeals, that defendant’s liability will be retried.
Level of court Cases are heard in the county court or the High Court, depending on the value of the claim and the complexity of the case. Cases valued at less than £50,000 must be commenced in the county court and will be tried there, unless they are of particular importance or complexity. Cases valued at an amount greater than this may be commenced in the High Court, and will be tried there unless they are so straightforward as not to merit trial in that forum.
Court management The average time from commencement of proceedings to the hearing is difficult to determine, and will depend on the complexity of the case and the injuries involved. As the system is adversarial, it is the plaintiff’s lawyer who has control of the case. A case in the county court will be automatically struck out after 15 months from close of pleadings unless a hearing date has been applied for. In personal injury cases there are generally automatic directions which lay down the time limits in the case. The court will give directions in husband and wife cases, and where third party notice has been issued. In these circumstances, there will be a pre-trial review to deal with directions. These rules are currently under review. Automatic directions require that discovery, exchange of expert witness reports and exchange of witness statements be done without a formal order from the court, within a set period of time after close of pleadings.
Evidence The legal system in England and Wales is adversarial in nature, and the respective legal representatives of the plaintiff and the defendant are responsible for obtaining evidence and instructing any experts. In principle, a foreign lawyer may obtain details from the authorities investigating the accident, but for practical reasons it is advisable to instruct a local lawyer from the outset. Where criminal proceedings are being considered, or indeed being brought, it will not be possible to obtain copies of the full police report until the criminal proceedings are concluded.
32
England and Wales Patients have a statutory right of access to their own medical records held in computerised form, or on paper since November 1991. Records may be released to the plaintiff’s solicitor. The court is empowered to grant orders for the release of medical records.
Witnesses At trial, much evidence is given in written form, although witnesses and experts will often be called to give oral evidence in respect of any evidence which is in dispute. Court-appointed experts are unusual. The parties are generally responsible for collecting and presenting the evidence. Witnesses can be compelled to attend court by subpoena in the High Court and witness summons in the county court. Parties are compelled by legislation to disclose their documentary evidence and witness statements (known as discovery).27 As well as discovery during the course of an action, a prospective party to an action can obtain pre-action disclosure of a document against someone who is likely to be a party to an action. This is frequently used in medical negligence cases for the purposes of investigating liability.
Settlement procedures The defendant may make a payment into court in respect of damages at any time between service of the proceedings on the defendant and the date of the trial. Such a payment does not prejudice the defendant’s right to continue his defence. If the plaintiff refuses to accept payment, the case goes to trial and, if the plaintiff is not awarded a higher sum, he will pay both his own and the defendant’s costs from the date of the payment into court.
ENFORCEMENT PROCEEDINGS As most awards of damages are paid by insurance companies, enforcement of the award is not generally a problem; however, enforcement of any costs order may be. It is up to the parties to seek enforcement of an award or interim order, although it will be carried out through the court by various methods including sale of the defendant’s moveables by bailiffs or the sheriff’s officer.28 The rules for cross-border enforcement are governed primarily by international convention.29 A certificate of judgment should be obtained from the court by __________________________________________________________________________________________________________________________________________
27 For example, RSC Order 25 regarding the disclosure of medical evidence and Order 28 regarding the disclosure of engineers’ photographs and plans. 28 For further details see Richardson, J (ed), Debt Recovery in Europe, 1993, Chapter 23, London: KPMG Peat Marwick. 29 Title III Articles 25–49 of both the Brussels Convention 1968 and the Lugano Convention 1988. Note that there is no convention relating to the USA. 33
Personal Injury: Practice and Procedure in Europe application to the central office or the district registry in which the judgment was obtained. The judgment will have to be registered in the enforcing jurisdiction. The cost of enforcement procedures will depend on the nature of the enforcement and the outcome.
COSTS Where the plaintiff is successful in his action, the defendant will generally be ordered to pay his costs. If the plaintiff is unsuccessful he will be ordered to pay the defendant’s costs. If the case settles out of court, it is usual to agree that the successful party’s costs will be paid by the other party, although this is a matter for negotiation. In legal aid cases, if the plaintiff wins his costs are paid by the defendant. If the plaintiff loses he is unlikely to be ordered to pay the defendant’s costs. His own costs will be paid by the Legal Aid Fund, although at a fixed, hourly rate. This is a lower hourly rate than he would have obtained from the other side.
34
CHAPTER FIVE
FINLAND
LIABILITY There is no concept of common law or legal precedent in Finland. Claims are based purely on statutory rights. The standard of care is based on pater bonus familias and reasonableness. However, not all areas are based on fault. Particular types of harm include the following: • Road traffic accidents, employer’s liability, product liability, medical negligence, train accidents, aeroplane crashes are governed by no-fault schemes. • Fault-based liability covers accidents caused by animals and environmental accidents. There are no special rules for fatal accidents.
DEFENCES The defences which can be raised include contributory negligence, intervening acts of third parties, and necessity, but their application will depend on the type of accident. Some of them will act as partial defences, merely reducing compensation, while others will act as complete defences, ousting the claim entirely. For example, a plaintiff may be found to be 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY If the defendant is under 18 years of age he will be liable for an amount which is deemed reasonable considering his age and behavioural and intellectual development, the nature of the act, his financial circumstances and those of the plaintiff.1 The parents of the minor may be held liable if it is proved that they have been negligent in their supervision of the child. A minor cannot sue in his own right. He will be represented by his parents or guardian as a plaintiff. If there is no guardian, or there is a conflict of interest between the minor and his guardian, the court will appoint a trustee to act on his behalf. Where the plaintiff or defendant is not mentally capable of conducting his own affairs, a
__________________________________________________________________________________________________________________________________________
1
Chapter 2, s 2 of the Damages Act. Vakingonkorvauslaki. 35
Personal Injury: Practice and Procedure in Europe guardian will also act on his behalf.
JURISDICTION According to the rules of Finnish private international law, the law of the place of the accident must be used before the Finnish courts where domicile of the defendant and place of accident are different, unless both parties are Finnish and live in Finland. Place of domicile is regarded as being the locality in which a person resides under the Population Records Act.2 It will usually be the place in which he is permanently resident. If the accident happened in Finland but the defendant is domiciled elsewhere, proceedings will usually be commenced in the place of domicile of the defendant. It is possible in some circumstances, however, to commence proceedings in the place of accident.3 If an action is brought in one court, neither party has the right to ask for the proceedings to be transferred to another one.
LIMITATION PERIODS A claim becomes statute barred after the general limitation period of 10 years has elapsed. Shorter limitation periods apply in special cases, however.4 Limitation periods start to run from the date of the accident or the date of the plaintiff’s knowledge of the injury. The parties cannot normally extend the limitation by consent and neither can the courts. The limitation period may be interrupted by police investigations, civil proceedings or the provision of an accident report to the insurers. There are no special rules on limitation where the plaintiff is a minor, or a mental patient.
FUNDING Legal aid __________________________________________________________________________________________________________________________________________
2 3 4
5
Kotikuntalaki. For example, in the case of a road traffic accident. Three years for road traffic accidents; one year in cases of employer’s liability; three years in cases of medical negligence; three years in cases of product liability; two years for train accidents; and two years for aeroplane crashes. Maksutou oikeuden kayuti. 36
Finland The Finnish legal aid scheme is not run by a legal aid board. Instead, cost-free trials are granted on application to the court.5 Legal aid is available for an action outside the jurisdiction. A foreigner who is not resident in Finland can qualify for legal aid. The main criterion for qualification for legal aid is the applicant’s income and assets. In some cases an applicant will be granted partial legal aid and will be expected to meet the remaining costs himself. There is no prescribed limit to which legal aid will fund. All necessary expenses are met. If the defendant cannot satisfy an award and costs against him, the court will not be entitled to recoup its expenses from a legally-aided plaintiff.
Contingency fees Finnish lawyers do not operate on a contingency fee basis. Lawyers do not have a fixed level of charges, nor do they charge by the hour. Charges are calculated on the basis of work involved in a case, the degree of complexity and the client’s interests.
Legal expenses insurance Plaintiffs are sometimes supported by legal expenses insurance. Some home contents insurance policies will assist with legal actions. The extent to which they will assist depends on the terms of the insurance policy. Generally, there is a 15% excess or a minimum of FIM 1,200 payable by the insured, and a maximum of FIM 50,000 to be covered by the insurance company. There are some special legal insurance policies available.
Trade unions Unions do not assist their members in bringing or defending an action.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings There are no separate courts for criminal and civil proceedings in Finland. In Finnish criminal proceedings, the courts have the power to award orders of compensation to the plaintiff on the submission by the plaintiff of a formal claim. As in civil proceedings, the quantum of criminal damages is assessed on the basis of the injury, and the awarding of criminal damages prevents a civil claim being made altogether.
Criminal investigation
37
Personal Injury: Practice and Procedure in Europe The police should always be called when a person is injured. When they are called they will automatically start to investigate. Criminal proceedings will commence automatically if a criminal offence has been committed. The police will reconstruct an incident on rare occasions and only where the accident was very serious. There are no other bodies which have to be informed of accidents.
Release of evidence The prosecution and police will readily make their evidence available to the plaintiff’s lawyer after the investigation has been completed. The evidence may be obtained by formal request for a fee. The cost will depend on the extent of the evidence, but is usually nominal. It generally takes about two weeks to obtain police reports providing the case is not overly complicated.
Use of evidence in civil proceedings Not applicable.
Criminal injuries compensation scheme If the defendant is unable to pay the state will pay compensation to the victim via the criminal injuries compensation board.6 It has redress against the defendant. If the prosecution is successful the board will pay the costs of the victim’s lawyer of his choice. The board does not make it a condition that it has the right to nominate the lawyer.
THE LEGAL PROFESSION There is no distinction between solicitors and barristers in Finland, and lawyers in Finland have rights of audience in all the courts in the country. Finnish lawyers may advertise their services. In principle, lawyers have the right to call themselves specialists in the field of personal injury. There do not seem to be any publicly referring to themselves as such at present, however. There is no association of personal injury lawyers.
__________________________________________________________________________________________________________________________________________
6
Rikosvahinkolautakunta. 38
Finland Where a person is legally aided, there is no restriction on choice of lawyer. The court will not appoint a lawyer ex officio if a person cannot find a lawyer willing to act under the legal aid scheme.
INSURANCE Insurance requirements Insurance is compulsory in the areas of road traffic accidents, employer’s liability and medical negligence. There are some limitations on the indemnity.7
The uninsured driver Where the vehicle is uninsured or the defendant is unknown, the Finnish Motor Insurers Association will pay compensation.8 If the defendant omits to take out insurance cover, or is in breach of the terms of his insurance agreement, the plaintiff will not be paid by the insurer. One exception to this rule is where the driver of a motor vehicle had a blood-alcohol content of 1.50/00 or more at the time of the accident. In these circumstances the insurer will pay the compensation to the plaintiff, unless he was a passenger in the defendant’s care and knew, or ought to have know, of the driver’s condition.
Insurer as party to proceedings The defendant’s insurance company will normally be sued directly. The usual sequence of events starts with the insured defendant giving notice to his insurers of the accident. The insurance company generally makes an effort to settle the claim. If the plaintiff is dissatisfied with the amount of compensation, he will then resort to an appeal procedure according to the type of insurance in question.
DAMAGES Heads of damage The heads of damages for personal injury are divided into a number of headings: • Expenses for necessary medical treatment. This includes hospital fees and medicines. __________________________________________________________________________________________________________________________________________
7 8 9
For example, in the case of drunken drivers. Liikennevakuutuskeskus. Sometimes referred to as disability pension. 39
Personal Injury: Practice and Procedure in Europe • •
• •
• • • • •
•
• •
Loss of income.9 This includes fringe benefits, holiday compensation and future raises in salary according to expected career development. Decrease in income. Should the plaintiff return to work or find lower-paid employment, the difference between this and his former income will be compensated. Delayed income. This is compensated where the plaintiff was a student at the time of the accident and employment opportunities were delayed due to his injuries. Rehabilitation. Both medical and vocational rehabilitation are compensated under this head, and include alterations to accommodation and necessary auxiliary devices. Pain and suffering.10 Permanent defect and handicap. There are 20 disability categories under this head which have been approved by the Ministry of Social Affairs and Health. Permanent cosmetic handicap. Care allowance. This will be granted to a plaintiff who will need help with daily functions, and is sub-divided into four categories of compensation. Clothing allowance. This will be granted to a plaintiff who must use some auxiliary device due to his injuries, which causes his clothing to wear out more quickly than it otherwise would. This head is subdivided into four categories of compensation. Increased costs of running a household. This includes the expense of having paid help to take care of property, such as mowing the lawn or clearing snow off the driveway. Funeral expenses. These will be paid to survivors of the deceased and assessed on the basis of the age and social status of the deceased and local custom. Survivors’ pension.
Interest Interest accrues on damages from the date of judgment, unless there are valid reasons for an earlier date.11
Lump sum or periodic payments Awards of damages are paid by way of a lump sum for pain and suffering, permanent defects and handicap, and permanent cosmetic handicap. Compensation for future earnings and expenses are usually paid periodically.
__________________________________________________________________________________________________________________________________________
10 It is interesting to note that, since 1989, the average amount of compensation awarded for pain and suffering has risen by approximately 22%. 11 Statutory interest at time of writing is 16%. 40
Finland
Provisional and interim payments All awards of damages are provisional in essence, since a claim can be re-opened and further damages paid providing there is a clear causal connection with the original trauma. The amount of compensation awarded may also be adjusted according to the circumstances of the defendant. Interim payments are not used.
Punitive awards There are no punitive damages for personal injury.
Bereavement damages No information is available at the time of writing.
Level of damages Since an undisputed amount of compensation is paid by the insurers without legal proceedings, the plaintiff needs to assess whether it is worthwhile financially to bring an action for the remainder. The Ministry of Social Affairs and Health issues the Categories of Permanent and Defect of Handicap periodically, which details and updates levels of damages.
Principles and guidelines Damages can be awarded in a foreign currency if they are claimed as such and sufficient evidence has been presented to substantiate their accuracy.
Social security and employers’ payments When compensation is paid to the plaintiff from an award of damages, benefits from the state will be deducted. The State has a right of priority over the plaintiff’s damages. There are complex regulations governing employers’ obligation to pay salary during incapacity. Employers and the social insurance institution cooperate to cover sickness allowance for employees.
PROCEDURE Commencing proceedings
41
Personal Injury: Practice and Procedure in Europe
Service A claim is initiated in Finland by writing to the defendant or his insurers. It is possible for a foreign lawyer to make initial enquiries, but due to language difficulties and differences between legal systems it is advisable to contact a local lawyer at the outset. The time limits to be met depend on the location of the court and the place of domicile of the defendant. Cross-border service is done through letters of request to the Minister for Foreign Affairs. Local service of proceedings is carried out by the court. The plaintiff can bring in a second defendant. The defendant can bring in a third party by way of summons. If more than one person is responsible for the damage to the plaintiff, they can all be joined as defendants in the same action. If only one of more defendants appeal, only the involvement of that particular defendant will be retried.
Level of court Proceedings must be commenced in the court of first instance.12 Criminal proceedings concerning liability of certain officials may qualify for commencement of proceedings in a higher court.
Court management The Finnish courts changed their rules of procedure on 1 December 1993, introducing preliminary procedures. The average time from the commencement of proceedings to the court hearing is one month.
Evidence The Finnish legal system is a mixture of both adversarial and inquisitorial procedures. The burden of proof is on the plaintiff who is responsible for obtaining the evidence. The parties normally instruct their own independent experts. There are no courtappointed experts. There is a statutory right to see medical records for patients and any other persons authorised by them. Evidence is given mainly by way of written documents, but witnesses and experts may sometimes appear before the court in person. Where the criminal injuries compensation board13 or Finnish Motor Insurers’ Association will be dealing with the matter, they should be formally notified by sending an accident report identifying the parties.
Witnesses __________________________________________________________________________________________________________________________________________
12 Karajaoikeus. 13 Rikosvahinkolautakunta. 42
Finland Witnesses who fail to appear at court when requested can be fined and physically brought before the court by the police. A party can be compelled to disclose documentary evidence but not witness statements.
Settlement procedures There are no provisions for a defendant to make a payment into court before a case is heard.
ENFORCEMENT PROCEEDINGS It is up to the parties to seek enforcement. Enforcement is normally only a problem if the defendant has insufficient means to meet the judgment, or no permanent residence. Enforcement of a judgment is carried out by ‘distrainers’, who are State officials and their charges are fixed. Interim orders can be enforced in some circumstances. Cross-border enforcement are governed by treaties between Finland and other countries. Most of these are multilateral, such as the Lugano Convention 1988 and various Nordic conventions.
COSTS It is usually stipulated in the agreement of an out-of-court settlement which party will pay which costs. If a case goes to trial, the court will usually order the loser to pay the winner’s costs. In principle, all the costs should be recovered by the winner, but this is not always the case in practice. For example, it is unlikely that the costs of both a foreign and a local lawyer will be recovered.
43
CHAPTER SIX
FRANCE
LIABILITY Civil liability in France is based on rules of both fault and strict liability.1 Particular types of harm include the following characteristics: • Road traffic accidents are subject to a no-fault regime of liability, according to which all victims are fully compensated.2 The only reduction in damages is for the victim’s contributory negligence which was the exclusive cause of the accident.3 • Product liability is governed by the Civil and Criminal Codes, as the 1985 European Directive on product liability has not yet been implemented.4 • Employer’s liability is based on fault, but the duty of care owed by an employer is to prevent unsafe work practices rather than to prevent the injuries themselves. This is the same duty of care owed in cases of medical negligence. • Occupier’s liability is governed by rules of strict liability. The owner of a building is liable for damage caused by deterioration of the premises, whether caused by latent defect or negligence on the part of the owner.5 • Train accidents are governed by a no-fault regime.6 • Aeroplane crashes are governed by the Warsaw Convention and the Civil Aviation Code.7 • Accidents caused by animals are governed by rules of strict liability.8 • Fatal accidents are governed by rules of strict liability9 in conjunction with a faultbased system.10 The only exception to this scheme is for motor vehicle accidents which are governed by a separate no-fault scheme.11
__________________________________________________________________________________________________________________________________________
1
Articles 1382 and 1383 of the French Civil Code provide for fault-based liability, while Arts 1384–86 provide for strict liability. 2 Loi Badinter (Motor Vehicle Act) 1985. See Redmond-Cooper, R, ‘No Fault Liability on the French Roads’, for a detailed description of this legislation. 3 Paris, B, ‘France’, paper presented at the European Conference of the Association of Personal Injury Lawyers, Windsor, UK, 9 March 1996. 4 Articles 1382 and 1384 of the Civil Code; Arts 222–19 et seq, 221–26 et seq, 223–21 of the Criminal Code. 5 Article 1386 of the Civil Code. 6 Article 1147 of the Civil Code. 7 L 141–42. 8 Article 1385 of the Civil Code. 9 Article 1384 al 1 of the Civil Code. Liability is strict, eg where the defendant is a hotel or restaurant. 10 Article 1382 of the Civil Code. 45
Personal Injury: Practice and Procedure in Europe
DEFENCES Defences are limited. Contributory negligence12 and intervening act of a third party13 may be raised, but necessity and self-preservation do not constitute valid defences. Defences usually reduce compensation rather than ousting the claim entirely. It is therefore unlikely that a plaintiff would be found to be 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY If the defendant is a minor he can be held liable at the age of 18. Below this age his parents may be held vicariously liable for his negligence.14 A plaintiff who is a minor can sue in his own right. The court is unlikely to appoint someone to act on his behalf unless legal aid includes such costs. It is usually the parents of the plaintiff who will act on his behalf. Where a plaintiff or defendant is not mentally capable of conducting his own affairs, a guardian will be appointed on an ad hoc basis by the court.
JURISDICTION Proceedings must be commenced in either the place of domicile of the defendant or the place of the accident.15 Domicile is regarded as being a person’s fixed residence, ie the place in which he incurs tax liabilities and is resident over 183 days per year. Where the accident happened in France but the defendant is domiciled elsewhere, proceedings will be commenced in either the place of the accident, the domicile of the defendant or the domicile of the defendant insurer. The only proviso is that there be proper service on the defendant at his normal residence. Either party can ask that the proceedings be transferred to another court, but objections to jurisdiction must be raised in court in limine litis before any defences are raised on the merits. If proceedings are brought at the place of domicile of the defendant which is different to the place of the accident, the court will apply the law of the place of the accident.
__________________________________________________________________________________________________________________________________________
12 13 14 15
Faute de la victime. Fait ou faute d’un tiers. Article 1384 of the Civil Code. Lugano Convention 1988. 46
France
LIMITATION PERIODS The limitation period for civil claims for torts is 10 years from the date of knowledge of the injury. The parties may in theory agree to extend the limitation period either expressly or impliedly to no overall maximum, but it is rare for defendant insurers to agree to this. The courts do not have the power to extend the limitation period, except where the plaintiff is constrained in some way that prevents him from meeting the deadline.16 The limitation period may be interrupted by written acknowledgement from the defendant of the plaintiff’s claim or the initiation of judicial proceedings. Where the plaintiff is a minor or a mental patient there are special rules regarding limitation periods.17
FUNDING Legal aid The legal aid system (Aide Juridictionnelle) underwent immense reforms in 1991,18 and legal aid is now available for legal advice as well as representation. Legal aid is available to persons of French nationality and foreigners resident in France, subject to a means test. Legal aid is not available for actions outside France. The legal aid board cannot recoup its expenses from the damages awarded to the plaintiff.
Contingency fees French lawyers are allowed to operate on a limited contingency fee basis. Otherwise, charges are calculated on an hourly basis.
Legal expenses insurance Parties are allowed to be supported by legal expenses insurance, but at present it does not seem to be very widely used. Some home content insurance policies offer similar support.
__________________________________________________________________________________________________________________________________________
16 Article 540 of the Civil Code. 17 Article 2252 of the Civil Code. 18 Loi du 10.7.1991. 47
Personal Injury: Practice and Procedure in Europe
Trade unions A union may assist a member in either bringing or defending an action only in the industrial court, and is prohibited from providing assistance in civil proceedings.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings The French criminal courts are empowered to award orders for compensation on the submission of a formal claim by the plaintiff, supported by expert evidence.19 Such an award generally prevents a civil claim being made until the conclusion of the criminal proceedings. The criteria for assessing quantum in the criminal courts is, as in civil proceedings, based on the plaintiff’s injury rather than the means of the defendant.
Criminal investigation The police are not always called to accidents in which there have been personal injuries; if called, they do not automatically start to investigate. They take their instructions from the public prosecutor who decides whether the matter should be investigated with a view to prosecution, or filed. When a person is injured, apart from the police, the defendant’s insurance company and the social security body should be notified.20
Release of evidence The prosecution and the police make their evidence available to the lawyer of a prospective plaintiff on request, as soon as the plaintiff has registered himself as a party to a civil action.21 It can take from two weeks to two months to obtain police reports.
Use of evidence in civil proceedings A criminal conviction can be used as evidence in subsequent civil proceedings.22 A foreign conviction can also be used.
__________________________________________________________________________________________________________________________________________
19 20 21 22
For example, a medical report from a doctor approved by the court. Caisse de Securité Sociale. At time of writing the fee for this was three francs per page. Res judicata. 48
France
Criminal injuries compensation scheme In a road traffic accident case in which the defendant has insufficient means to pay, the plaintiff may apply to the state for compensation from its Guarantee Fund.23 The fund has redress against the defendant. It will not pay for the plaintiff’s lawyer in any case. Criminal proceedings are subject to a time limit of 1–3 years, depending on the type of crime, and interrupt the limitation period for civil proceedings. Prosecution in a foreign jurisdiction also interrupts the limitation period.
THE LEGAL PROFESSION24 French lawyers enjoy unlimited rights of audience in all civil, criminal and administrative courts in the country, except the Tribunal de Grande Instance (court of first instance). Before a Tribunal de Grande Instance outside his jurisdiction, the lawyer will appoint a local lawyer to carry out procedural tasks such as filing the pleadings and defence, while he remains entirely in charge of the case and pleads before the court at the final hearing.25 Lawyers have the right to call themselves specialists in the field of personal injury. They may advertise their services in professional publications only. To obtain information about personal injury lawyers, one should contact the Conseil de l’Ordre des Avocats at the local High Court.26 There is also an association of personal injury lawyers called the Association des Avocats des Compagnies d’Assurance et du Droit de la Responsabilite (ASACA). There is no restriction on a plaintiff’s choice of lawyer where he is receiving legal aid. Many lawyers are reluctant to take on legal aid work, however, and they must be a member of the Bar attached to the competent court. If the person cannot find a lawyer willing to act under the legal aid scheme, the head of the Bar will appoint a lawyer ex officio.
INSURANCE Insurance requirements Insurance is compulsory for road traffic accidents, medical negligence, employer’s liability, fatal accidents, product liability, occupier’s liability, accidents caused by __________________________________________________________________________________________________________________________________________
23 Fonds de Garantie Automobile. 24 For a detailed examination of the legal profession in France see West, A, Desdevises, Y, Fenet, A, Gaurier, D and Heussaff, M, The French Legal System: an Introduction, 1992, pp 112–22, London: Fourmat Publishing. 25 A lawyer registered in Paris does not need a local agent to act on his behalf before the Tribunal de Grande Instance at Nanterre, Bobigny and Creteil, which are high courts in the Greater Paris area. 26 There are 179 High Courts and Conseils de l’Ordre in France. 49
Personal Injury: Practice and Procedure in Europe animals, environmental accidents and train and aeroplane accidents. Indemnity may be limited by contract.
The uninsured driver The insurance company is under no obligation to pay if the defendant was in breach of the terms of the insurance agreement or failed to renew his insurance cover. In such circumstances, the Guarantee Fund (Fonds de Garantie Automobile for motor vehicle accidents) will adopt the claim. If the Guarantee Fund will be involved with the claim, application must be made to the fund during the procedural stage before the date of the hearing.
Insurer as party to proceedings Insurers of motor vehicles must send the victim a full questionnaire requesting details of his injuries, and make an offer of compensation within eight months of the date of the accident.27 If the victim’s condition has not stabilised by this time, an interim offer must be made, with a final offer no more than five months later.
DAMAGES Heads of damage The heads of damages under which an injured person can recover include the following: • Pain. • Suffering. This includes fright, fear of a future disability, humiliation, embarrassment and sickness. • Loss of amenity. This includes injury to any sense, sexual dysfunction, loss of enjoyment of work,28 loss of holiday,29 inability to care for an invalid or sick spouse, impairment of house-keeping ability, and spouse’s loss of earnings.30 • Physical injuries which cause: temporary partial incapacity as a percentage of the whole body; and/or permanent incapacity of that part of the body function as a percentage. • Past loss of earnings. This includes lost fringe benefits and lost chances of promotion. __________________________________________________________________________________________________________________________________________
27 28 29 30
Loi Badinter (Motor Vehicle Act 1985). L 211–18 to L 211–26 of the Code des Assurances. Where the plaintiff has to undertake work for which he is overqualified. Where the accident happened during a holiday. Where the spouse gives up work to care for the plaintiff. This may be limited to the costs of the alternative of hiring a nurse to care for the plaintiff. 50
France • • • •
• • • •
Loss of future earnings. Loss of pension. Handicap on the labour market. This includes loss of earnings capacity where the plaintiff suffers a disability which restricts him in his choice of employment. ‘Do-it-yourself’ loss. This is where the plaintiff planned to carry out decorations, maintenance or renovations to his house before the accident, and, after the accident, must employ others to do so. This head also includes privately-incurred medical expenses. Cost of medical care. Cost of acquiring or adapting accommodation. Damage to property.31 Other expenses incurred as a direct result of the accident.
Interest Interest accrues at a rate fixed annually from the date of the issuing of proceedings.32
Lump sum or periodic payments Damages are usually awarded by way of a lump sum.
Provisional and interim payments Provisional damages are awarded where there is a real risk of the person developing a side effect or of his condition deteriorating in the future. An interim payment may be negotiated by the parties. The insurer is compelled to make an interim payment where the plaintiff’s injuries derive from a motor vehicle accident.33
Punitive damages Punitive damages are not awarded.
Bereavement damages Bereavement damages are not covered by baremes, but court awards are similar. Low __________________________________________________________________________________________________________________________________________
31 For example, clothing, glasses, automobile. 32 At the time of writing the rate was 6.65%. 33 1985 Act. L 211–18 to L 211–26 of the Code des Assurances. 51
Personal Injury: Practice and Procedure in Europe moral damages are also available.
Level of damages Publications such as the Gazette du Palais regularly detail and update levels of awards of damages. Quantum is determined by an average across the Courts of Appeal.34
Principles and guidelines The aim of compensation in damages for personal injury is to restore the plaintiff fully to his pre-accident position.35 The courts do not award damages in a foreign currency.
Social security and employers’ payments Social security benefits received by the plaintiff are deducted from the award of damages. French social services have a right of reimbursement via a direct right of action and a right of priority over the plaintiff’s damages. Most collective bargaining agreements36 in France provide that salary shall be maintained by employers for a given period. Employers have a right to be reimbursed and a final right of action, but no right of priority over the plaintiff’s damages. If there is no such agreement, State social security pays a daily allowance to the employee which is recoverable against the tortfeasor.
PROCEDURE Commencing proceedings Service A claim in France is initiated by notifying the defendant by letter, and then issuing a writ and statement of claim. A foreign lawyer may request and obtain police reports and other official information from the authorities, but this may be greatly facilitated by the assistance of a local lawyer.37 Service of proceedings is subject to a 10 year time limit from the date the damage __________________________________________________________________________________________________________________________________________
34 35 36 37 38
Bareme. Reparatio in integrum. Conventions collectives. Articles 1382 and 1384 of the Civil Code. Article 2270–71 of the Civil Code. 52
France was sustained.38 The rules for cross-border service allow a further delay of two months for the defendant to file a notice of defence. A third party may be brought into the action by either the plaintiff or defendant.39 Where there is more than one defendant, they can all be joined as defendants in the same action. If only one of more defendants appeal, only his involvement will be retried rather than the whole action.
Level of court The level of court at which civil proceedings commence depends on the amount of damages claimed by the plaintiff. Claims of less than FF 30,000 commence in a Tribunal d’Instance, while claims over that amount begin in a Tribunal de Grande Instance.
Court management The court will not usually give directions on how to proceed with the case. This decision rests with the plaintiff. The average length of time from the commence of proceedings to the court hearing is 18 months.
Evidence The plaintiff is mainly responsible for obtaining the evidence. The plaintiff instructs his own experts to give evidence with the court’s approval. Under French law, medical records can only be disclosed to the doctor of the plaintiff’s choice. In practice, however, it seems that the plaintiff’s lawyers may obtain his medical records on signed authority of his client. The court may also instruct its own independent experts. These will not necessarily be in the plaintiff’s jurisdiction. Evidence is given mainly by way of written documents.
Witnesses In theory, both local and foreign witnesses can be compelled to attend court to give evidence in person, but this rarely happens.
Settlement procedures Defendants are not required to make a payment into court before a case is heard, but
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39 The vicarious liability of an employer for the negligence of an employee, or a parent for a child, is governed by Art 1384, paras 2–7 of the Civil Code. 53
Personal Injury: Practice and Procedure in Europe plaintiffs are obliged to guarantee payment before an examining magistrate (Juge d’Instruction) against the risk of frivolous claims and consequential court costs.
ENFORCEMENT PROCEEDINGS It is up to the parties to seek enforcement rather than the court. Enforcement is only likely to be a problem where the defendant has changed domicile or become insolvent. The creditor pays the costs of the services of a bailiff, but these are recoverable from the debtor. Interest runs on judgments at the legal rate increased by five points if not satisfied within two months.40 In the case of motor vehicle accidents where the insurer fails to make a timely interim or final offer, the victim is awarded interest on the final award by the court at double the normal rate. The insurer will also pay up to 15% of the award to the Guarantee Fund for Uninsured Vehicles.41 Interim orders can be enforced as well as final awards of damages. Cross-border enforcement is governed by the Brussels Convention 1968. There must be proper service of proceedings on the defendant and be no appeal pending.
COSTS That the losing party should pay the part of the winner’s costs is encoded in statute.42
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40 See note 34 above. 41 Fonds de Garantie Automobile. 42 Section 700 of the Code of Civil Procedure. 54
CHAPTER SEVEN
GERMANY
LIABILITY In Germany the standard of care is generally an objective one, demanding proper care as reasonable in the ordinary course of business. There must be foreseeability of the damage sustained by the plaintiff, but the remoteness of damage requirement does not seem to be a difficult hurdle as the actual loss suffered by the plaintiff does not have to be foreseeable. Particular types of harm include the following characteristics: • In road traffic accident cases, the owner of the vehicle is liable for any bodily injury or property damage caused by the operation of his vehicle, even if he is not at fault. Strict liability does not apply for damages for pain and suffering and liability is capped by the Road Traffic Act. The only exception to the strict liability regime is where the accident was unavoidable, ie where the accident was caused by some defect in the vehicle and the owner and driver exhibited utmost care. Strict liability will also not apply as regards passengers unless there was a charge for transport.1 • Work accidents insurance is generally relied upon rather than employer’s liability.2 • In cases of medical negligence the burden of proof is on the patient to prove causation. It then shifts to the doctor who must prove that the damage was not caused by malpractice. • Pharmaceuticals are governed by a regime of strict liability.3 The rest of product liability is governed by a combination of this regime, plus the former case law. The burden of proof will shift to the manufacturer if the consumer can establish the product was faulty. • There are few statutory provisions covering occupier’s liability.4 Occupier’s liability is based on proof of fault. The occupier is under a duty to take care and can be liable for failing to do so. __________________________________________________________________________________________________________________________________________
1 2 3
4
For example, taxi service. Berufsgenossenschaften, Art 646ff, 790ff, 850ff Reichsversicherungsordnung. Section 84 of the Arzneimittelgesetz of 24 August 1976: ‘If in consequence of the use of any pharmaceutical designated for use by human beings, which was distributed to consumers within the territorial scope of this statute and was either subject to admission or released from the duty of admission, a human being is killed or his body or health damaged, the pharmaceutical company marketing the product within the territorial scope of this statute, will be liable to compensate the injured person for the damage suffered. This liability exists only if (1) the pharmaceutical has harmful effects in its designated use which exceed a degree tolerable in light of current knowledge of medical science, and have their cause in development or production, or (2) the damage resulted from labelling, information or instruction insufficient in light of the current knowledge of medical science.’ But see Art 836 of the Burgerliches Gesetzbuch. 55
Personal Injury: Practice and Procedure in Europe • •
Strict liability governs accidents caused by animals except regarding animals used for purposes of the owner’s business.5 There is a strict liability regime for environmental accidents,6 train accidents,7 and aeroplane accidents involving non-passengers. With aeroplane accidents involving passengers, there is a presumption of fault and the onus is on the defendants to prove otherwise.8
DEFENCES The main defences are necessity, intervening acts of third parties, contributory negligence, and volenti non fit injuria. An employee also has the defence of hazardous work against his employer, with the result that he will not be able to be held liable by his employer. Contributory negligence can be raised concerning the injury and the duty to minimise the loss. An influence of drugs or alcohol is treated as contributory negligence if the claimant cannot prove that this was not relevant to the accident. In cases of road traffic accidents this assumption is almost irrefutable. The German approach to defences is to strike a balance between the individual shares of responsibility for the damage. This usually results in a reduction of compensation, but it may occasionally oust the injured person’s claim. It is quite possible for a plaintiff to be found 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY Defendants who are minors can be held liable between 7–18 years of age if they have an understanding of the consequences of their acts. Minors under the age of seven have a limited legal capacity according to which they are never liable. The parents can be held liable if they fail to supervise their child adequately. A minor can sue in his own right, but must be represented by a legal representative who is usually one of his parents. A special guardianship court will appoint someone to act on behalf of the minor if the parents fail to bring a claim which would be in his best interests. A minor is most likely to be represented by his parent. An illegitimate child will be represented by his mother. In all other cases, the minor will be represented by a guardian. Normally a guardian will be responsible where a plaintiff or defendant is not mentally capable of conducting his own affairs.
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5 6 7 8
Article 833 of the Burgerliches Gesetzbuch. Umwelthaftungsgesetz. Haftpflichtgesetz. Article 44ff of the Luftverkehrsgesetz. 56
Germany
JURISDICTION German law does not recognise the legal principle of domicile. Emphasis is placed instead on the residence of the parties. Residence is treated as being the place in which a person stays and lives without the intention of returning elsewhere.9 A person who resides in Germany must actually be living there and register his residency at the local police station. A person’s residency can be provided on request by the local Ordnungsamt. If the accident happened in Germany but the defendant is not resident there, proceedings must be commenced in either the place of accident or residence of the defendant.10 Where proceedings are brought at the place of residence of the defendant which is different to the place of the accident, the law of the place of the accident will be applied by the German courts. The only exception will be where both parties are German, live in Germany and the accident happened in another country, or when both parties are German and insured in Germany, in which case German law will be applied. The defendant has no right to ask proceedings to be transferred to another court. The plaintiff, on the other hand, has the option of withdrawing an action brought in one jurisdiction and starting a new one in another.
LIMITATION PERIODS The general limitation period in Germany is 30 years from the date of the plaintiff’s knowledge of the damage and the person responsible for it. The special limitation period for torts is three years.11 The three year rule therefore applies to road traffic accidents, with the additional requirement that the plaintiff must notify the defendant within two months of knowledge of damage unless the defendant has otherwise obtained knowledge of the accident, as will normally be the case. If the plaintiff fails to do so, all claims based on a strict liability regime are forfeited. The only exception to the limitation period is where the defendant has acted fraudulently, in which case he will not be able to rely on the limitation period. The limitation period can be interrupted by negotiations until one of the parties refuses to continue.12 The parties cannot technically extend the limitation period by consent, but it is possible for them to agree to waive the right to invoke limitation for a specified period of time.13 The courts do not have the discretion to extend the __________________________________________________________________________________________________________________________________________
9 The Brussels Convention has been ratified by Germany, but not the Lugano Convention. 10 Paragraphs 12, 13, 32 of the Zivilprozessordnung. Art 5 No 3 of the Brussels Convention. 11 One exception to the three year rule concerns air traffic accidents, for which the limitation period is three months (Art 40 of the Luftverkerkehrsgesetz). 12 Article 852, para 2 of the Burgerliches Gesetzbuch. 13 Article 202ff of the Burgerliches Gesetzbuch. 57
Personal Injury: Practice and Procedure in Europe limitation period. Where the plaintiff is a minor or a mental patient the same limitation periods apply.14 The only difference in the rules is that the limitation period starts at the date of knowledge of the legal representative rather than the knowledge of the victim. The legal representatives of a minor are his parents, and of a mental patient, his curator.
FUNDING Legal aid There is a legal aid scheme in operation in Germany15 as well as a legal advice scheme. Legal aid is not available for an action outside the jurisdiction, but foreigners who are not resident in Germany can qualify for legal aid for an action in Germany. The main criterion for eligibility is a means test. All fees for the lawyer and court costs are funded according to statutory rules, but are restricted according to the calculations laid down by statute. The legal aid board is not generally entitled to recoup its expenses from the damages awarded to the plaintiff, but a person earning over a fixed amount has to repay the legal costs by instalments. No legal aid is paid for a person with a fixed income of a set amount, with the relevant net income depending on the number of dependants the person has.
Contingency fees Contingency fees are illegal under German law. Lawyers have a fixed level of charges. The fees are set out in a federal code and calculated in proportion to the value of the subject matter. There is a maximum of three fees: the first for conducting the matter out of court; the second for attending the trial; and third is for the taking of evidence. There can be a fourth fee if a settlement is reached after the other fees have been accrued. A lawyer’s charges are calculated using a multiplier-multiplicand method. The multiplicand depends on the value of the case. Where damages are being claimed the value of the case is an identical amount. The multiplicand is based on the statutory scale of fees. Many lawyers prefer to agree on time charges with their clients rather than the statutory fee. This is legal as long as the fees are not less than those set down by statute.
Legal expenses insurance Legal expenses insurance is very common in Germany, especially for drivers of motor vehicles. Home contents insurance policies do not automatically include legal expenses __________________________________________________________________________________________________________________________________________
14 Article 206 of the Burgerliches Gesetzbuch. 15 Prozesskostenhilfe. 58
Germany insurance. Other special legal insurance policies can be taken out. For example, liability insurance can act as legal expenses insurance for defending an action. There are special legal insurance policies which can be bought, often included in motor vehicle insurance. General legal insurance policies are available but will only cover the consumer and not professional actions, for which special professional legal insurance can be obtained. That legal expenses insurance is now widely available partly accounts for the German courts being faced with such a large number of small claims.
Trade unions A union may assist a member in bringing or defending an action concerning labour law, especially in cases of principle rather than individual interest. In labour law cases the fees of the lawyer at first instance are not recoverable. The union will assist the member with the help of a union clerk who will prepare the claim and represent the member before the court.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings In traffic accidents, criminal proceedings are commenced automatically as a matter of public interest. In other types of accidents involving personal injury a formal demand must be made by the injured party in order to institute proceedings. If the defendant is prosecuted through the criminal courts, the criminal court has the power to award an order of compensation to the plaintiff. As it is not awarded automatically, the plaintiff must submit a formal claim.16 The awarding of damages by a criminal court prevents a civil claim being made, as both awards are seen as serving the same function. This rule operates only in the plaintiff’s favour, in that a plaintiff is free to bring a civil action if he feels he has not been fully compensated, while a defendant cannot challenge the decision in the civil courts. As similar to a civil award, the criterion for a criminal award of damages is the injury itself, as opposed to the means of the defendant.
Criminal investigation The police are always called when a person is injured, and automatically start to investigate, especially with motor vehicle accidents. The police may reconstruct an incident, usually in the presence of an expert. In general no other bodies need to be informed of an accident in which a person is injured. For accidents at work, the Beiufsgenossenschaft needs to be informed. In cases __________________________________________________________________________________________________________________________________________
16 Article 403ff of the Strafprozessordnung. 59
Personal Injury: Practice and Procedure in Europe of medical negligence, the professional chamber should be informed and will offer mediation services. With environmental accidents, government bodies like the Department of the Environment and the Trade Supervision Office should be informed.
Release of evidence The police usually make their evidence readily available to the solicitor for a prospective plaintiff. It can be obtained by formal request. There is generally no fee as the original files are sent to the lawyer to copy. The prosecutor has to release the evidence by the time the investigations are complete. If the files are with the police or prosecutor, it usually takes only a few weeks to obtain the police report. Disclosure might be delayed if it has been sent to an expert witness or to the court.
Use of evidence in civil proceedings A criminal conviction can be pleaded in a civil court, but the existence of such a conviction does not automatically bind the court. A foreign conviction, if recognised in Germany, can be used as evidence in the civil trial but is non-binding. Criminal proceedings in Germany or abroad do not interrupt the limitation period.
Criminal injuries compensation scheme If the defendant is unable to pay, there is a state compensation scheme for victims of violent crimes, calculated on a different basis to civil compensation.17 Foreign nationals other than EU nationals can bring such claims only if reciprocity is guaranteed by their home country.18 This compensation board has redress against the defendant. If a matter is complained of to the board and the matter is successful, it will pay the costs of the complainant’s lawyer of his choice. The board will not cover legal costs, but the plaintiff can turn to the legal aid scheme for funding. The procedure available through the board is an administrative one, and it is felt that the services of a lawyers will not be needed. The board will therefore never investigate a case directly through its lawyers. The statute does not apply to cases in which a car was used in the violent act. There is also a charitable organisation providing support for the victims of criminal acts.19
THE LEGAL PROFESSION There is no distinction between solicitors and barristers in Germany. German lawyers __________________________________________________________________________________________________________________________________________
17 Article 1 of the Opferentschadigungsgesetz stipulates that the quantum of damages should be determined in accordance with the Bundesversorgungsgesetz. Disputes over such claims fall within the jurisdiction of the social court (Art 7 para 1 Opferentschadigungsgesetz). 18 There is discussion in Germany at this time about dropping this restriction. 19 The Weisser Ring, Bundesgeschaftsstelle Weberstrasse 16, D-55130 Mainz. 60
Germany are not allowed to call themselves ‘specialists’ in the field of personal injury, nor are they allowed to advertise their services. The line between disseminating information and advertising one’s services is unclear, however. It would not be considered unprofessional for a lawyer to write articles or provide interviews to the media on topics of personal injury. Information about lawyers who specialise in personal injury can be obtained from either the Deutscher Anwaltverein 20 or the Bundesrechtsanwaltskammer,21 both of which have offices in most major cities. German lawyers have a right of audience in all local courts,22 which are the courts of first instance for all claims up to DM 10,000. The regional courts deal with all other claims; the right of audience is only granted to lawyers who have their office within the area of that court and are admitted there.23 There is no equivalent to the association of personal injury lawyers. The closest organisation to it is a Committee on Road Traffic Law as part of the Deutscher Anwaltverein, and its members deal with criminal aspects of the law. There is no restriction in the choice of lawyer for a legally aided person. A legal aid application is usually submitted by a lawyer, who will then be named in the order. The court can appoint a lawyer ex officio if a person cannot find a lawyer willing to act under the legal aid scheme. This is very uncommon since the legal aid scheme pays almost the full fees of the lawyer.
INSURANCE Insurance requirements Insurance is compulsory for motor vehicles, pharmaceuticals, aeroplanes, and certain plants and factories with environmental risks. Indemnity is limited in the case of road traffic accidents to DM 500,000,24 pharmaceuticals DM 500,000, product liability DM 160 mio, environmental incidents DM 160 mio, and aeroplane accidents DM 320,000.25
The uninsured driver If a person has neglected to take out insurance cover for motor vehicles, or if he is in breach of any terms of the insurance agreement, the plaintiff will usually recover __________________________________________________________________________________________________________________________________________
20 21 22 23 24 25 26
Adenauerallee 106, 53113 Bonn. Joachismstr 1, 5311 Bonn. Amtsgericht. Landgericht. This restriction will be dropped on 31 December 1999. For one person. If more than one person is injured the amount is DM 750,000. For passengers. Limits for non-passengers are calculated according to the weight of the aeroplane. Thus, even lending the car is not a breach unless the borrower is obviously unfit to drive. For example, in the case of drunken driving the insurer can get redress from the insured party. 61
Personal Injury: Practice and Procedure in Europe regardless. Breach of the insurance agreement does not automatically affect third parties since it is the vehicle which is insured rather than any specific individual.26 If the insurance agreement has been terminated by the insurance company, it will be no valid defence for a one month period from notifying the car registration office, who will prevent the further use of the car. If the tortfeasor neglects to take out insurance cover at all, there is a compensation board of the insurance companies who will handle the claim.27 The fund was established in 1966 and is financed by motor vehicle insurance companies. Foreign nationals have such claims only if reciprocity is guaranteed by their home country. Such claims are only a system of last resort if the injured party has no private insurance or social insurance benefits upon which to rely. Pecuniary damage will only be paid in very exceptional cases. If the car is insured with a foreign insurance company, the claim will be dealt with by the HUK Verband as the consulting bureau under the green card system.28 This organisation can also be helpful with investigations abroad. If the motor insurance bureau is dealing with the matter, it must be notified in writing. If it does not pay it can be sued as a nominal defendant.29
Insurer as party to proceedings It is only possible to bring proceedings against the insurance company directly in claims arising from motor vehicle accidents. In all other cases the claim must be brought against the defendant.
DAMAGES Heads of damage The heads under which an injured person can recover damages are immaterial damages,30 loss of past and future earnings, medical expenses, additional needs, funeral costs, loss of dependency, and damage to property. German law does not distinguish between separate heads of immaterial damage. These damages are available under the common law of tort but are not recoverable under the statutory rules of strict liability. Immaterial damage is usually paid as a lump sum and on the condition that the plaintiff is suffering continuous pain. Additional payment can also be awarded. The amount of damages available for immaterial loss has not been fixed by statute and has been left to the discretion of the courts. Under German law the plaintiff is not compensated for the loss of his earning __________________________________________________________________________________________________________________________________________
27 28 29 30
Verkehrsopferhilfe, Glockengiesserwall 1, 20095 Hamburg. HUK Verband, Glockengiesserwall 1, 20095 Hamburg 1. HUK Verband. Non-pecuniary loss. 62
Germany capacity but for the actual loss of income due to the accident. The average net income of the year prior to the accident is considered by courts as indicating the amount the plaintiff would have earned in the future. Any tax advantages will be deducted. For a self-employed plaintiff, the average income of the three years prior to the accident is calculated. If a homemaker is injured, the loss is calculated on the basis of the wages for help in the house. There are no deductions for contingencies of life. The plaintiff is compensated for all medical expenses incurred, regardless of whether they were incurred under the public or private health care system. The plaintiff is also compensated for any additional needs he has due to the accident. The plaintiff can therefore request compensation for adapting his house to his disability, and for help in the house. Help from the relatives and their hospital visits are also compensatable. The plaintiff can demand compensation for all damage to his property. This includes travelling expenses to the hospital and any visits by relatives, the cost of repairing the car, vehicle storage costs, hire of an alternative vehicle, and the costs of the expert needed to assess the damage and the costs of repair. The courts also award compensation for the loss of use of a car, even if no replacement was hired.
Interest Interest accrues on damages from the date of the accident, for property damage and, from the date of notification of the tortfeasor, for cases of personal injury. The statutory minimum interest rate is 4% per annum, but in most cases it can easily be shown that the plaintiff either had to pay higher interest himself or could have obtained higher interest by investing the amount of damages.
Lump sum or periodic payments The court will usually award periodic payments. Only the immaterial loss is calculated on the basis of a lump sum. The plaintiff may ask for a lump sum if he has justifiable reasons for doing so.31 A lump sum is not calculated on a multiplicand system, but by using actuarial tables instead. These tables take into account the life expectancy of the plaintiff and the chance of remarrying. A lump sum is only awarded in very limited cases and most often where resolution of the claim is reached by an out-of-court settlement.
Provisional and interim payments If the case is settled on the basis of a lump sum and there is a future risk of the plaintiff suffering further damage due to a side effect of the original injury, the parties usually __________________________________________________________________________________________________________________________________________
31 For example, there may be difficulties in enforcing judgment in a foreign jurisdiction, or there may be a risk of insolvency of the defendant. 63
Personal Injury: Practice and Procedure in Europe agree on an award of provisional damages. Even without provisional damages having been agreed in the settlement, a plaintiff who develops a significant side effect which was not foreseeable at the time of the settlement can ask for additional payment. Where a claim will take some considerable time to finalise, the court can award an interim payment. The plaintiff must apply for an interlocutory judgment justifying the need for the claim and showing that he lacks any other means to cover his needs. It is likely that an insurer will make an interim payment on a voluntary basis in order to encourage an out-of-court settlement and minimise the risk of going to court.
Punitive damages Punitive damages are not awarded by the German courts, and foreign judgments ordering punitive damages are not enforceable in Germany.32 However, a penalty for reckless behaviour is sometimes taken into account in calculating immaterial damages.
Bereavement damages Only close relatives or a fiancé may be entitled to bereavement damages, but only in exceptional circumstances if, after witnessing the accident or learning of the injury, they suffer shock to a degree far beyond normal. Close friends or relatives may also be entitled in situations where learning about the injury goes far beyond the average shock situation.33 The value of the dependency is assessed according to the net income of the deceased. A widow without children will receive 50%, and a widow with children 70%. The widow must try to find suitable and acceptable work in order to minimise the loss. The loss of the work of a homemaker is treated as a loss of dependency and is, again, calculated on the basis of house help.
Levels of damages Court practice in respect of immaterial loss is reported in periodicals and other publications.34 It is usual for the court of first instance to rely on these sources. The highest amount of immaterial damages will be awarded for tetraplegia for which the courts are presently awarding up to DM 600,000.
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32 Ordre Public. 33 Palandt, Burgerliches Gesetzbuch, vor para 249 Rz 71. 34 Hacks/Ring/Bohm, Schmerzensgeldbetrage, 16th edn, 1993, and Slizyk, Schmerzensgeldtabelle, 1993. Other publications on general damages for personal injuries include Wussow/Kubersbusch Ersatzansprueche bei Personenschaden, 5th edn, 1990; Geigel, Der Haftpflichtprozess, 20th edn, 1990; and the periodicals Deutsches Autorecht (DAR), Neue Zeitschrift fur Verkehrsrecht (NZV), Zeitschrift fuer Versicherungsrecht (VersR), Zeitschrift fuer Schadensrech (ZfS0) and Neue juristische Wochenschrift (NJW). 64
Germany It is unlikely that any claims will be too small to make it worthwhile for the plaintiff to proceed with his claim, since most legal costs are covered. The only difficulty might be finding a lawyer who is prepared to charge no more than the statutory fee.
Principles and guidelines Damages are not awarded in a foreign currency, but currency erosion can be claimed as damages. The only exception is if the claim is for the cost of medical treatment abroad, but the defendant still retains the option of paying in German currency instead.
Social security and employers’ payments German social security is a system of compulsory insurance which is financed by employers and employees. The system pays for medical treatment and grants sickness benefits and invalidity pension. Payments from it are comparatively high, and in some cases can be higher than damages payable under civil law. Payments are usually calculated as a percentage of former income and are not limited to a fixed sum. No credit is given to the plaintiff for State benefit received, as this is perceived as giving unwarranted relief to the defendant. There is no right of priority over the plaintiff’s damages, but the social services can have a direct right of action.35 There are different types of accident compensation schemes for work accidents, depending on the type of business of the employer.36 An employer’s obligation is to pay a full salary for up to six weeks. A work accident insurance scheme to which employers pay contributions precludes claims against the employer.37 If the accident was intentionally caused by the employer, or if it occurred while the parties participated in ‘public traffic’, the employers remain liable.38 The idea behind the scheme is to protect the employee from possible employer insolvency, and avoid arguments and litigation between the parties. Employers have a right to be reimbursed, but there is no right of priority over the plaintiff’s damages.
PROCEDURE Commencing proceedings Service
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35 36 37 38
Cessio legis. Berufsgenossenschaften. Article 537ff of the Reichsversicherungsordnung. Article 636ff of the Reichsversicherungsordnung. 65
Personal Injury: Practice and Procedure in Europe A claim is initiated in Germany by writing to the defendant and, in cases of traffic accidents, to the insurance company as well. The police file should also be requested at this time as the insurers normally ask for such information in their reply. Instructing a local lawyer from the outset to obtain official information from authorities investigating an accident is not necessary, but can often expedite enquiries. Foreign lawyers can request and obtain initial information before instructing a local lawyer. Service of proceedings is governed by the court and need not be done by the parties. The court will serve the complaints as soon as the court fee advance is paid. Service can be by postal delivery, in which case the defendant will receive an official certificate of delivery by the post office. After service, the defendant is given notice to reply, usually within three weeks. If the matter is treated before the district court, the reply must be signed by a lawyer admitted to the court. Cross-border service of proceedings is governed by the Hague Convention.39 It is possible for a defendant to bring a third party into proceedings. For example, an insurance company could be brought in by providing particulars of the third party and its connection to the matter in the defence or in later written pleadings. Copies of the pleadings must be submitted for service on the third party. If more than one person is responsible they can all be joined as defendants in the same action. If only one of several defendants appeals, the substantive law will determine whether it is possible to come to a different decision for each defendant. It may be possible either for the whole action to be retried or for only one particular defendant to be retried. There is nothing to prevent an appeal being restricted to the involvement of only one defendant.
Level of court Proceedings are commenced in the local court40 if the compensation sought by the plaintiff is less than DM 10,000. A law suit for more than that amount is commenced in the district court.41 An appeal from the local court goes to the district court, and an appeal from a district court goes to a regional court.42 There is a further appeal on questions of law to the federal court against the decisions of the regional court.43
Court management The court will give directions at an early stage as to how to proceed with the case. After exchanging written arguments and evidence, there is a first hearing at which the
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39 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965. 40 Amtsgericht. 41 Landgericht. 42 Oberlandesgericht. 43 Bundesgerichtshof. 66
Germany court will indicate which evidence is to be called and what additional information will be needed. The average time from the commencement of proceedings to the court hearing is 2–4 months, but a hearing will not necessarily be completed in one day. When it takes longer, a new date will be set by the court to continue the hearing. The court has control of the case.
Evidence The German system is a mixture of adversarial and inquisitorial procedure, and is generally less adversarial than the English and less inquisitorial than the French.44 The parties are responsible for obtaining the evidence. This is offered to the court, which then decides which evidence is to be brought before it. The court can instruct its own independent experts but usually asks the parties to agree on one. In cases in which it is expected from the start that the parties will not agree, they are normally advised to wait for the court-appointed expert in order to avoid unnecessary costs. They may still use their own experts, however, to challenge his testimony. The court usually appoints an expert in the plaintiff’s jurisdiction. Patients have a right to see their own medical records and details of the treatment given. There is no statutory right of inspection, but case law has developed a right on the basis of the contractual relationship with the doctor. The records are normally released to the patient or to his lawyer. In cases where full information about his condition might be harmful to the patient, it has been recognised that they may be submitted to his medical advisor instead. If the release of records is refused, the court will either grant an order to their submission or shift the burden of proof to the doctor to sanction his failure to provide documentation.
Witnesses Expert evidence is first introduced in written form, but the court or the parties can ask the expert to explain his report in person. Witnesses can be compelled to attend court to give evidence. If they refuse they can be ordered to make penalty payments and can ultimately be brought to court. A party cannot be compelled to disclose his evidence. The German law of procedure does not know any form of pre-trial discovery. There is, however, a special procedure for the preservation of evidence.45 An application can be made to the court in some circumstances to force a reluctant party to disclose evidence.
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44 For example, the court may ask questions whenever it thinks fit. 45 Selbstandiges Beweisverfahren. 67
Personal Injury: Practice and Procedure in Europe If the parties or witnesses reside outside the jurisdiction, they can either be heard in a court in their home country by mutual assistance or ordered to attend in person to give evidence.
Settlement procedures There are no provisions for a defendant to make a payment into court before the case is heard.
ENFORCEMENT PROCEEDINGS There is no special provision for interest on awarded amounts, but statutory interest runs from the time of service of the claim and continues to accrue on the judgment.46 Interest will only be awarded on the judgment if the plaintiff has made an express request in his statement of claim, otherwise it cannot be enforced. Enforcement procedures are left up to the parties and include the seizure of moveables by the bailiff. Detachment orders and sequestration orders can be issued by the court. Immovable property can be sequestrated and claims against third parties can be attached. The costs of enforcement are calculated according to a scheme in proportion to the amount of damages awarded in the judgment. Enforcement might pose a problem where the defendant is unavailable, no seizable assets are in his possession or a defendant company has been dissolved. Interim orders are usually enforceable, but there is a risk of having to pay damages if the order is set aside upon appeal. Cross-border enforcement is not generally a problem where the other country is a signatory to the Brussels Convention 1968. Required documents will only need an execution clause, which can be obtained by the district court with the domicile of the debtor or the district court where the execution is going to take place. Only the judgment itself has to be translated. Judgments outside the Brussels Convention need an enforcement judgment in order to be enforceable in the absence of a special treaty between Germany and the State in which the judgment was obtained. The German court will verify proper service according to the German rules of procedure and the jurisdiction of the court, as well as any applicable international conventions. It can therefore be difficult to obtain an enforcement judgment.
COSTS If a case is settled out of court each party will pay its own costs, unless it is provided otherwise in the agreement. If the case goes to trial the court will usually order the __________________________________________________________________________________________________________________________________________
46 4% minimum. 68
CHAPTER EIGHT
GREECE
LIABILITY The concept of negligence in Greece is considered to be an act or omission causing harm and resulting in liability to pay reparations.1 The general standard of care is faultbased (pater bonus familias)2 and is set out in the Greek Civil Code and some auxiliary statutes which generally impose strict liability to certain areas of negligence. • Road traffic accidents are governed by a regime of strict liability under which both the driver and owner of the vehicle will be liable.3 Exceptions to the general rule of strict liability include the defences of an act of God, contributory negligence, and a defect in the vehicle that could not reasonably have been foreseen by either the driver or owner. Strict liability does not apply to the owner’s duty of care towards passengers in his car, but it will apply in the case of bus passengers. • Employer’s liability (duty owed by an employer to an employee), 4 liability for aeroplane accidents,5 some environmental accidents6 and product liability7 are also strict. • Accidents caused by non-domestic animals8 and employers’ liability (vicarious liability of an employer for the negligence of an employee)9 are subject to a particular hybrid of strict and fault-based liability. In effect, both have a reversed burden of proof so that the onus to rebut the presumption of negligence is on the defendant.
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1 2 3 4 5 6 7 8 9
Kerameus, KD and Kozyris, PJ (eds), Introduction to Greek Law, 2nd edn, 1993, p 75, Deventer, The Netherlands: Kluwer. Arts 914 and 919. L 3950/1911. L 551/1914. L 596/1937 in accordance with the Warsaw Convention, and LD 4395/1964 in accordance with the Hague Protocol. For example, oil pollution is subject to L 314/1976 in accordance with the Brussels International Convention on Civil Liability for Oil Pollution Damage 1969. L 1961/1991, L 2000/1991, Arts 26–29. Article 924. Article 922. 69
Personal Injury: Practice and Procedure in Europe
DEFENCES Available defences10 (arnisi tis vaseos tis agogis) include contributory negligence, strict liability of a third party, being under the influence of drugs or alcohol at the time of the accident, force majeure, self-defence and ignorance of damaging effect. Some of these will operate as complete defences, while others such as the drugs or alcohol defences will merely reduce the amount of compensation payable to the plaintiff. Whether a defence will completely oust a claim will be left to the judge’s discretion. A plaintiff may be held to be 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY If the defendant is a minor he can be held liable from the age of 18 years. Minor or mentally sub-normal defendants may either be exonerated completely or be found only partially liable.11 If he cannot be held liable, the parents may be vicariously liable unless they can prove they exercised due diligence. Although the defendant’s culpability may be reduced, he may nevertheless be liable for full damages to the plaintiff if compensation cannot be recovered from another source.12 In cases relating to infant plaintiffs and plaintiffs who are mentally incapable of conducting their own affairs, representation will be by parents ipso jure. A minor can sue in his own right at 14 years of age.
JURISDICTION Whether the Greek courts will have jurisdiction to hear the case will depend on the defendant’s domicile.13 The Greek Civil Code defines domicile as being ‘the place where one has his principal and permanent establishment’.14 Greece is also a signatory to the Brussels15 and Lugano16 Conventions. According to the Greek rules of private international law, the law of the place of the accident must be used before Greek courts, unless both parties are Greek and live in Greece, even if the accident happened in another country. Road traffic accident cases are generally dealt with at the place of the accident in accordance with Greek rules of private international law and the Hague Convention on the Law Applicable to Traffic Accidents 1971. __________________________________________________________________________________________________________________________________________
10 11 12 13 14 15 16
Article 261. Articles 915–17. Article 918. Article 22. Article 51. 1968. 1988. 70
Greece Tortious claims concerning criminal acts can be brought in either the place of accident or place where its effects are felt, but only at the plaintiff’s request.17 Once the competency of the court has been settled, neither party has the right to ask for the proceedings to be transferred to another court. If the case has been deposited in a court which is not competent, it will be transferred to a competent court by the judge. The defendant is able to raise an objection questioning the competency of the court. The plaintiff may withdraw his action from the court and file it in another court so long as it has competence to deal with the matter. The parties may agree in writing to choose a specific district court in Greece in advance of the hearing. Agreement may also be implied where one party fails to object to the transfer of proceedings at the first available opportunity.18
LIMITATION PERIODS The limitation period within which the plaintiff must commence his action is 20 years from the date of the accident for cases involving drivers who cause wounding or death. It is two years from the date of the accident if the defendant is an insurance company, and five years from the plaintiff’s knowledge of the injury and knowledge of the identity of the tortfeasor against any other defendants. The limitation period will be interrupted by negotiations between the parties, but cannot be extended merely by consent. The courts do not have the discretion to extend the limitation period. The same limitation periods apply where the plaintiff is a minor or a mental patient.19
FUNDING Legal aid The Greek legal aid scheme (evergetima penias) is highly restrictive.20 Legal aid is difficult to obtain, with the main criterion for qualification being financial need. The main criterion for qualification for legal aid is that the candidate must be unable to support himself or his family if he pays the court costs.21 There is no limit to which a legal aid board will fund and there are no contributions payable by claimants toward their legal costs. __________________________________________________________________________________________________________________________________________
17 18 19 20 21
Article 35. Articles 42–44. Article 258. Articles 194–204. Article 194. 71
Personal Injury: Practice and Procedure in Europe Legal aid is not available for an action outside the jurisdiction. A foreigner who is not resident cannot qualify for legal aid. The legal aid board is not entitled to recoup its expenses from the damages awarded to the plaintiff where the defendant has insufficient means to pay.
Contingency fees Lawyers are allowed to work on a contingency fee basis in Greece, which is usually approximately 20% of a final award of damages. The Code of Attorneys sets a minimum level of fees for lawyers, according to the type of litigation and the subject matter.
Legal expenses insurance Some plaintiffs are supported by legal expenses insurance. Home contents insurance policies which include assistance with legal expenses are available, but do not seem to be widely used.
Trade unions Information was unavailable at the time of writing.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings The criminal courts in Greece are empowered to award orders for compensation to the plaintiff on the submission of a formal claim by the plaintiff. The awarding of damages by the criminal court prevents a subsequent civil claim being made until the criminal proceedings are finalised. If a criminal case is pending, a civil court judge may, on his own initiative or the request of one of the parties, order an adjournment of the hearing until the criminal proceedings are finalised. The criteria for assessing quantum in the criminal courts are the injuries suffered by the plaintiff. They are the same as for a civil award of damages. The plaintiff may pursue a civil claim to make up what he perceives to be a shortfall in the amount of criminal compensation. In criminal proceedings, the limitation period is interrupted from the date the writ of summons is served. In the case of misdemeanours, the case is time-barred eight years after the accident. Prosecution in a foreign jurisdiction does not interrupt the limitation period.
72
Greece
Criminal investigation When a person is injured, the police are always called and automatically start to investigate. Criminal prosecution is ex officio made where there has been an accident involving personal injuries. Where the defendant is a relative of the victim, the penal procedure will not always apply except where there have been fatalities. The police will reconstruct an accident where there have been fatalities or fraud. The only other bodies which should be informed of an accident involving personal injuries are the Foundation of Social Insurance (IKA) and disciplinary bodies, eg the medical association in cases of medical negligence (Enosis Iatrikon Syllogon Hellados).
Release of evidence The police will release their evidence to the victim, the defendant and their lawyers once their preliminary investigation is over and before dispatching the case file to the public prosecutor. However, they will not release any official documents at this time. When the police investigation is complete, the prosecution and the police will make their evidence readily available to the lawyer of a prospective plaintiff. The official evidence is obtained on formal request. There is no fee for this, but a sum of approximately 10,000 drachmas (dr) will be payable for stamp taxes and ratification dues. It normally takes one to three months to receive police reports in the Athens area, and a little longer in other areas of Greece.
Use of evidence in criminal proceedings A domestic or foreign criminal conviction can be pleaded in a civil court, and carries serious weight in a subsequent civil procedure.
Criminal injuries compensation scheme There is no State-funded compensation scheme for the victims of criminal injuries where the defendant is unable to pay. In the event of an insurer’s insolvency or in the event that a motor vehicle is uninsured, the insurer’s auxiliary capital will be used to satisfy the award (epikouriko kefalaio). This fund has the right to investigate a case directly, nominate the lawyer, and has redress against the defendant.
THE LEGAL PROFESSION There is no distinction between barristers and solicitors in Greece. Greek lawyers do not have the right to call themselves specialists in the field of
73
Personal Injury: Practice and Procedure in Europe personal injury, and advertisements by lawyers is prohibited. There is no association of personal injury lawyers. Furthermore, as the Law Society does not allow lawyers to register their specialties, it is almost impossible to obtain referrals to personal injury lawyers except by word of mouth. Lawyers in Greece have rights of audience in criminal courts all over the country. In the civil courts, however, they are limited to the courts in the jurisdiction of their local Bar association. To take a case in another jurisdiction will therefore require the co-operation of a local lawyer. Where a person is legally aided, a lawyer is appointed by the Bar association.
INSURANCE Insurance requirements Information was unavailable at the time of writing.
The uninsured driver If the defendant is uninsured or in breach of the terms of his insurance agreement, the plaintiff will still be paid by the Supplementary Capital Fund (Epikouriko Kefalaio).
Insurer as party to proceedings Proceedings may be brought against the defendant’s insurer directly. If proceedings are being brought against an insured, however, his insurers must be given formal notice before issuing proceedings and within a certain time limit in order to secure insurance cover.
DAMAGES Heads of damage The heads under which a plaintiff may recover damages are pain, suffering, loss of amenities and general damages. Interest on damages runs from the serving of the writ.22 Damages for lost future earnings23 and for the increased needs of the plaintiff24 are
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22 23 24 25
Articles 261 and 346. Article 914. Article 919. Article 929. 74
Greece payable, as are the services of the plaintiff to third parties.25 No compensation is paid to a spouse who leaves employment to become the caregiver of the plaintiff. All medical costs including costs of nursing care are recoverable. Do-it-yourself activities will be indemnified. Special damages include compensation for past and future loss and loss of pension. Permanent physical handicaps are indemnified.
Lump sum or periodic payments Damages may be awarded in a lump sum or by period payments,26 but are usually paid periodically by way of an annuity in monthly instalments. The court will sometimes approve a lump sum payment at the plaintiff’s request if he can show a serious need for it. Interest accrues on damages from the date of service of the writ.27
Provisional and interim payments Interim payments can be made after a special provisional procedure is followed on the plaintiff’s request. The plaintiff will have to prove that he is in real need of an interim award, and the court will have to assess the likelihood of his claim succeeding.28 The defendant may make an interim payment on a voluntary basis. Provisional damages will be awarded where the plaintiff claims a prejudice to his future rights. He must prove that there is a real danger that he will develop side effects in the future or that his condition is likely to deteriorate. The court will then allow him to re-open a case against the defendant in the future for a second and sometimes third time.
Punitive damages Punitive damages are not awarded in Greece.
Bereavement damages Bereavement damages are payable to the heirs of the deceased. Included are the medical and funeral expenses of the deceased and the loss of income sustained by any
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26 27 28 29
Article 938. At the time of writing interest was fixed at 28%. Articles 682 I and 728 I lit e. Article 928. 75
Personal Injury: Practice and Procedure in Europe dependants.29 Moral damages (ikanopoiisi ithikis vlavis) are payable for the pain and suffering of the plaintiff, as well as to the family of the deceased for the pain they suffer due to his death.30 The moral damages awarded to the plaintiff do not pass to his heirs unless agreed between the litigating parties.31
Level of damages There is generally no cap on the amount of damages available where strict liability applies, but the courts give consideration to the defendant’s financial resources. There are no publications in Greece which detail and update levels of damages in cases of personal injury.
Principles and guidelines The courts will not award damages in a foreign currency where the plaintiff is not resident in Greece, but may make an award in Greek drachmas after assessing quantum in a foreign currency.
PROCEDURE32
Commencing proceedings Service A claim is initiated in Greece by serving notice upon the defendant and filing the action with the court clerk. It is advisable to instruct a local lawyer from the outset to obtain initial information on an accident, not least because of the language barrier. Service of proceedings is carried out by a bailiff acting at the request of the plaintiff. The summons and a copy of the complaint are served to the defendant’s insurer, if he has one, and to the defendant at either his home or place of business. Proceedings must
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30 Articles 932 and 299. 31 Article 933. 32 For an excellent summary of Greek Civil Procedure see Kerameus and Kozyris, note 1 above, Ch 15, pp 265–99, ‘Judicial Organisation and Civil Procedure’. 33 Article 228. 76
Greece be served 30 days before the first hearing.33 The Hague Convention34 applies in respect of cross-border service. Notification of the suit is made by the bailiff to the district attorney of the court of first instance, and the secretariat of the district attorney’s office and the Ministry of Foreign Affairs two months before the hearing. If more than one person is responsible, they can all be joined as defendants in the same action.35 The plaintiff may bring in a second defendant. The defendant can bring a third party into the action. If only one of more defendants appeal, only his involvement will be retried.
Level of court Proceedings commence in the level of court which has the competence to handle matters likely to render that particular amount of compensation.36 The current lines of demarcation run at 30,000 dr between Justices of the Peace and the one-member district courts. Claims of more than 1,000,000 dr commence in the three-member district courts. The Civil Code of Procedure also allows competence according to subject matter.37 Matters of employer’s liability, insurance and motor vehicle accidents are generally heard in the higher courts. To commence proceedings in a court of a higher level, therefore, the case must be extremely serious and concern one of the areas noted above, or the likely award of damages must be within the higher court’s competence.
Court management The average time from the commencement of proceedings to the court hearing is five to six months. The control of a civil case is assumed by the plaintiff’s lawyer. The court does not give directions as to how to proceed with a case, but matters of evidence occupy a central place in Greek civil proceedings. At the first hearing, if the court deems that the compensation requested by the plaintiff is provided for by the law, and that the facts alleged in the complaint are sufficient to give rise to a cause of action, then its first task of the course will be to establish the facts of the case. The court will order the evidence by use of a judicial act (prodikastiki apofasi) and make directions as to the allocation of burden and the allowed means of proof.
Evidence The Greek legal system is inquisitorial in nature. The burden of proof rests with the __________________________________________________________________________________________________________________________________________
34 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965. 35 Article 926. 36 Article 15. 37 Article 16. 77
Personal Injury: Practice and Procedure in Europe plaintiff who must prove damage (zimia) unlawfulness of the act or omission (paranomia) fault (ypaitiotita) and proximity (aitiodis synapheia).
Witnesses If no out-of-court settlement is agreed by the parties, witnesses and experts are called to present their evidence mainly by way of written documents. Witnesses can be compelled to attend court in person in criminal, but not civil actions. Witnesses and parties residing outside the jurisdiction may submit sworn depositions in some cases, but can be summoned to appear in person through the magistrates’ court in the jurisdiction in which they live, or through a consulate if they live abroad. The court appoints experts from a court list. The experts do not necessarily have to reside in the jurisdiction. The plaintiff may introduce his own expert evidence in addition. Both parties are obliged to disclose all evidence, and not mislead the court or each other. In respect of medical evidence, patients have a statutory right to see their medical records and make copies of the reports and files.
Settlement procedures There are no provisions for the defendant to make a payment into court before the case is heard.
ENFORCEMENT PROCEEDINGS It is up to the creditor to seek enforcement. It is potentially very costly, as the cost will be proportional to the sum of money for which enforcement is requested. Enforcement proceedings start with formal notice being given to the debtor, inviting voluntary performance and warning of enforcement. This notice is placed at the bottom of a certified copy of the enforcement instrument. If the debtor fails to respond, the creditor orders a marshal, who is the agent authorised to carry out execution, to carry it out. Interim orders are enforceable and sometimes used to freeze assets to secure enforcement later.38 Cross-border enforcement is carried out by special exequatur proceedings before the district court of the defendant’s domicile or, in their absence, of Athens.39 For an exequatur to be obtained, it must be shown that the foreign document is judicially enforceable under the law of the country of origin, and not contrary to good morals or to public policy. In addition, in order to recognise a foreign judgment, the court must __________________________________________________________________________________________________________________________________________
38 Articles 707–24. 39 Article 905. 40 Article 323. 78
Greece have international jurisdiction according to the rules of Greek private international law.40 The defendant need not be summoned or formally notified, but usually is in order to be precluded from challenging the exequatur later. If the defendant appears, he may challenge only matters related to the exequatur, and is prohibited from raising any substantive issues.
COSTS There are no general rules on which party should pay costs when a case settles out of court. When a case goes to trial, the court will usually order the loser to pay the winner’s court costs and lawyer’s fees,41 unless the court feels it is unjustified in the circumstances and the victory was not clear cut.42 It is unlikely that the costs of both a local and foreign solicitor will be recovered.
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41 Article 176. 42 Articles 178–79. 79
CHAPTER NINE
ITALY
LIABILITY The general standard of care is pater bonus familias. Particular types of harm include the following characteristics: • Road traffic accidents are governed by a scheme of strict liability for motor vehicle owners, and fault for motor vehicle drivers. The Civil Code provides that the owner of a motor vehicle will be liable unless he proves that the driver was not authorised to drive the car.1 In such circumstances, the driver will be liable unless he proves to have been unable to avoid causing the damage, despite exercising reasonable care. The onus rests on the defendant driver to rebut the presumption of fault. In the case of an accident between vehicles, it is generally presumed that each driver is equally responsible for the resulting damage, and they may be held jointly liable with the vehicle owners. • Employer’s liability (master and servant) is based on fault.2 The employer owes a general duty to his employee to protect his physical integrity, and is also under a number of non-delegatable statutory health and safety obligations.3 Employers may be vicariously liable for the tortious acts of their employees under a no-fault scheme.4 • Liability for medical negligence is based on fault, the standard of duty of care being that of a competent doctor in all the circumstances. Both breach of this duty and a causal link between negligence and the damage suffered by the plaintiff must be proved.5 • Product liability is governed by a regime of modified strict liability, with a rebuttable presumption of fault placed on the defendant.6 • Occupiers’ liability and accidents caused by animals are based on strict liability. Liability for animals operates with a presumption of fault on the defendant which is rebuttable only by proof of a ‘fortuitous event’.7 __________________________________________________________________________________________________________________________________________
1 2 3
4 5 6 7
Section 2054 of the Civil Code. Article 2087 of the Civil Code. For example, legislative decree of 19 September 1994, No 626, giving effect to eight EC Directives (89/391/EEC, 89/654/EEC, 89/655/EEC, 89/656/EEC, 90/269/EEC, 90/270/EEC, 90/394/EEC, 90/679/EEC). Section 2049 of the Civil Code. Section 2236 of the Civil Code. Presidential Decree No 224 of 24 May 1988. Articles 2051 and 2052 of the Civil Code. 81
Personal Injury: Practice and Procedure in Europe • • •
Environmental incidents are governed by fault in some circumstances, and strict liability subject to certain defences in others.8 Train accidents are governed by strict liability, subject to the defence of best endeavours to avoid causing damage. Aeroplane crashes are governed by a scheme of strict liability.9 However, personal injuries to non-paying passengers are governed by fault-based liability.10 There is no particular regime for liability for fatal accidents.
DEFENCES The main defences include self-defence, necessity11 and force majeure.12 Any negligence on the part of the plaintiff can reduce compensation proportionately. The other defences generally oust the plaintiff’s claim altogether. It is possible, however, for a plaintiff to be held 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY As regards criminal liability, a minor cannot be held responsible.13 It will be left to the court’s discretion where the defendant is 14–18 years old. A plaintiff who is a minor14 or incapable of conducting his own affairs can sue in his own right with the representation in court of a parent or guardian.15 If there is no one to represent the plaintiff, the court may appoint a guardian.
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8
9 10 11 12
13 14 15
For example, s 2050 of the Civil Code provides that if an accident is caused by a dangerous activity (such as nuclear energy production), the defendant must prove that utmost care was exercised to avoid the accident in order to avoid liability. Law No 349 of 8 July 1986 entitled ‘Institution of the Ministry for the Environment and Regulations Pertaining to Environmental Damage’ further provides that any fraudulent or culpable action committed in violation of laws or measures, and which causes damage to the environment, gives rise to full liability in damages. The onus is on the defendant to prove that he adopted all possible and proper measures to avoid causing the harm. Section 2050 (see above). Section 1681 of the Civil Code, in accordance with s 2050 above and the Warsaw Convention 1929. An equitable award may be granted to the plaintiff. Force majeure is the occurrence of an event that cannot be foreseen or prevented and that is ‘vis maior cui resisti no potest’, ie an event of nature or unpreventable human action. It includes the acts of third parties. Under 14 years of age. The age of majority is 18, as per Art 22 of the Civil Code. Article 429 of the Civil Code. 82
Italy
JURISDICTION The Italian Civil Code defines place of domicile as being the place of one’s business activities and main residence.16 Italy is a signatory to the Lugano Convention 1988, according to which a defendant domiciled in a contracting state may be summoned either in the place of domicile or in the place of the accident.17 If the accident happened in Italy but the defendant is domiciled elsewhere, there are a number of options. Proceedings can be commenced in either the place of domicile of the defendant, the place of the accident, the place where the defendant insurer has its registered office, or the place of the branch office or agent which executed the insurance contract. Either party has the right to ask for the proceedings to be transferred to another court if it can be proved that the appointed court is not competent. According to the rules of Italian private international law, the laws of the place of the accident must be used before the Italian courts, unless both parties are Italian and live in Italy, in which case Italian law will be applied.
LIMITATION PERIODS The general limitation period for unlawful damage is five years. For motor vehicle accidents, however, the limitation period is two years. The limitation period starts to run from the date of the accident. It can be suspended where the parties have a particular relationship, such as husband and wife or guardian and minor, by a judicial petition within the civil proceedings. A written claim requesting payment of damages causes an interruption in the limitation period, so that a new limitation period starts to run afresh from the beginning. Criminal proceedings alone do not suspend or interrupt the civil limitation period. The parties have no power to extend the limitation period, and neither do the courts. Where the plaintiff is a minor or a mental patient, the limitation period is suspended for the time he has not had a legal representative and for the six month period after the appointment of a legal representative, or after the end of his incapacity.
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16 Article 43. 17 Article 2, s 1, and Art 5, No 3. 83
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FUNDING Legal aid The Italian legal aid scheme18 is called the tariffa dei diritti e degli onarari. There is no limit to which it will fund. Claimants are not expected to contribute towards costs. Legal aid is not available for an action outside the jurisdiction, but a non-resident of Italy can obtain legal aid for a civil action in the Italian courts. The main criteria to qualify for legal aid are amount of personal income and reasonable grounds for the legal action. If the recipient of legal aid wins the claim, and costs are awarded against the other party who has insufficient means to pay, the legal aid board has no right to recoup its expenses from the damages awarded to the plaintiff.
Contingency fees Lawyers do not operate on a contingency fee basis. They have a minimum fixed level of charges set by ministry decree.19 Charges vary according to the value of the claim made by the plaintiff and the type of work involved.
Legal expenses insurance Plaintiffs may be supported by legal expenses insurance or home contents insurance policies, but these are not as yet very widely used.
Trade unions A trade union will assist its members in labour matters and will take for itself a percentage of the compensation received by the member if his claim is successful.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings If the defendant is prosecuted through the criminal courts, the plaintiff can be awarded compensation by submitting a formal claim. The awarding of damages by a criminal court does not preclude a subsequent award by a civil court after the criminal proceedings have been concluded. __________________________________________________________________________________________________________________________________________
18 Provided in accordance with Art 24(3)c. 19 The Tariffa Forense is approved by the Consiglio Nazional Fornse and the Ministry of Grace and Justice. 84
Italy As in the civil courts, the criminal courts base assessment of the quantum of damages on the injury. Judges have the discretion in criminal proceedings to award a down payment to the victim as part payment of the compensation which will be ultimately granted to him.
Criminal investigation Criminal proceedings are initiated by calling the police and filing a petition with the court. In some cases criminal proceedings are commenced ex officio. Criminal proceedings can be instituted ex parte with 90 days of the date of the crime, but the limitation period for crimes to be prosecuted ex officio is longer.20 When an accident gives rise to personal injuries and the injured parties are transported to the hospital, the treating physician is obliged by law to send the details to the judicial authorities automatically.21 The police will then forward the information to the public prosecutor, and whether criminal proceedings should be commenced is left to his discretion. The police will sometimes reconstruct an accident where causation is unclear or the evidence will soon deteriorate. Certain bodies must be informed of an accident giving rise to personal injuries. For example, in cases of medical negligence the medical authority must be notified.22 Personal injuries caused by accidents at the workplace must be reported to INAIL.23 All environmental disasters must be reported to the Ministry of Environment.
Release of evidence The prosecution and police do not generally make their evidence readily available to the lawyer of a prospective plaintiff. It will be made available at the end of the preliminary investigations. Efforts to obtain evidence are made by formal request. The fee payable for this will depend on the length of the documents and speed with which it must be delivered. It usually takes no more than five days after a request is filed for police reports to be released. The preliminary investigation normally takes not less than six months.
Use of evidence in civil proceedings A criminal conviction can be pleaded in the civil court. Article 12 of the Criminal Code and Article 730 of the Code of Criminal Procedure provide for the recognition of foreign convictions in Italian civil proceedings. The facts and liability of the __________________________________________________________________________________________________________________________________________
20 21 22 23
See s 157 of the Criminal Code. Article 265 of the Criminal Code. Ordine dei Medici. Istituo Nazionale per l’Assicurazione sugli Infortuni de Lavoro. 85
Personal Injury: Practice and Procedure in Europe convicted defendant do not need to be proved again in the subsequent civil procedure.
Criminal injuries compensation scheme The State will not pay compensation to the victim where the defendant is unable to do so. A guarantee fund for the victims of unidentified automobiles has been set up, but it takes some considerable time for money to be paid out of it.
THE LEGAL PROFESSION The rules of the professional body for lawyers24 prohibit publicity and advertisements and do not allow lawyers to refer to themselves as specialists in the field of personal injury. There is no association of personal injury lawyers, and nowhere that information about lawyers who specialise in personal injury can be obtained. There is no distinction between solicitors and barrister in Italy, but lawyers retain titles of either procuratore or avvocato, and rights of audience vary. An avvocato has rights of audience in all Italian courts except the Corte Costituzionale, Corte di Cassazione and the Consiglio di Stato. After eight years of practice as an avvocato one can appear in these courts as an avvocato cassazioniste. The procuratore legale’s right of audience is restricted to the district courts and Court of Appeal in the area in which he is resident. To be admitted to the public register of avvocato, a lawyer must have been registered as a procuratore legale for six years. There is a special roll of lawyers who may appear for the defence before the Supreme Court in Rome. There are usually no restrictions on choice of lawyer when a person is legally aided. In criminal proceedings, however, the lawyer is appointed in forma pauperis by the court and paid by the State. Counsel appointed by the court ex officio are chosen from a special register, which also somewhat restricts the choice of lawyer.
INSURANCE Insurance requirements Insurance is compulsory for all motor vehicles and risks related to dangerous activities.25 Indemnity is limited by a schedule setting forth the minimum amounts __________________________________________________________________________________________________________________________________________
24 The Ordine degli Avvocati e Procuratori has branches in each region and a national office, the Consiglio Nazionale Forense. 25 For example, the operation of nuclear power plants and aircraft navigation. 26 For example, private cars cannot be insured for a sum less than LIt 1,500,000,000 per accident, in accordance with Royal Decree No 1430 of 9 October 1992, and Law No 990 of 24 December 1969 on compulsory insurance. 86
Italy required for various types of vehicles.26
The uninsured driver Penalties for failure to take out compulsory insurance range from LIt 1,000,000–4,000,000.27 If the defendant is in breach of any terms of the insurance agreement, the insurance company will still be obliged to pay the plaintiff, with a right of reimbursement from the tortfeasor as stipulated by the terms and conditions of the insurance agreement. If the driver is unknown or has not taken out insurance cover, or the insurance company is in liquidation, the Warranty Fund for the Victims of Road Accidents will pay compensation.28 Notification of this body is carried out by registered mail.
Insurer as party to proceedings Proceedings can be brought directly against the insurance company of the tortfeasor. The insurance company may not be sued before 60 days have passed after receiving notice of the claims by registered letter.
DAMAGES Heads of damage In Italy, the heads under which damages can be recovered are property damage29 and personal damage.30 Property damage includes all the costs and expenses incurred by the plaintiff, eg medical expenses, costs of nursing care, damage to property, costs of car repairs, and all other expenses which are a direct result of the accident.31 This heading also includes loss of past and future earnings.32 Personal damage includes physical and psychological pain and suffering and patrimonial damage (which includes loss of earning capacity). It also includes moral damages, eg aesthetic damage, prejudice to public relations, worry and fright.
Interest __________________________________________________________________________________________________________________________________________
27 Road Traffic Code, Art 193, Legislative Decree No 285 of 30 April 1992, in the revised text of Legislative Decree No 360 of 10 September 1993. 28 Fondo di Garanzia per le Vittime Della Strada. 29 Danno patrimoniale. 30 Damno non patrimoniale. 31 Damno emergente. 32 Lucro cessante. 33 At the time of writing the fixed rate of interest was 10% per annum. 87
Personal Injury: Practice and Procedure in Europe Interest accrues on damages from the date of the accident.33
Lump sum or periodic payments Damages are usually awarded by way of a lump sum, but arrangements for periodic payments may be agreed by the parties.
Provisional and interim payments Interim payments are sometimes awarded if the plaintiff can prove that he has immediate financial needs which result from the accidents. The payment may be granted up to a limit of four-fifths of the final amount of compensation. Insurers will sometimes offer an interim payment on a voluntary basis in order to avoid paying interest on the total award of damages. A recent reform of the Civil Code of Procedure now provides for ‘the ordinance for the payment of sums not contested’.34 This allows the judge to award an interim payment for the amount not contested by the parties, or only partially contested. Provisional damages are not awarded in Italy. The risk of future deterioration of the plaintiff’s condition is taken into consideration at the time of settlement of the claim.
Punitive damages There are no punitive damages awarded in Italy, but moral damages will be awarded where there has been criminal behaviour on the part of the defendant. They are considered to be an abstract evaluation of the behaviour of the tortfeasor by a civil court where criminal proceedings have not been initiated.
Bereavement damages Bereavement damages are payable to the spouse, children and parents of the deceased.
Level of damages There are some publications which detail and update levels of damages. The most important law courts release publications containing compensation tariffs and levels of damages. Furthermore, one of the most widely read Italian newspapers, Sole 24 Ore, has recently published information pertaining to compensation criteria in force in the most important Italian courts.
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34 Article 186b. 88
Italy
Principles and guidelines The courts base their decisions on quantum by examination of past decisions in similar cases. Only when considering loss of earning capacity is more detailed guidance provided to the courts.35 The courts can, in effect, award damages in a foreign currency by demanding payment be in Italian lire in an amount consistent with the exchange rate for the foreign currency on the day of payment.
Social security and employers’ payments Plaintiffs must reimburse the social security organisation, INPS,36 from an award of damages for the benefits received by him. Social services has a direct right of action but no right of priority over the plaintiff’s damages. In the case of accidents at work, employers have a statutory obligation to pay at least 50% of the employee’s salary during incapacity, but collective agreements often set out higher levels to be paid by employers.
PROCEDURE Commencing proceedings Service A civil claim is initiated by writing to the defendant and his insurers. Recent legislation has been passed which demands that the police report be made available on formal request and authorisation given by the magistrate.37 It is often possible to obtain information about the accident through unofficial routes, but a foreign lawyer may encounter considerable difficulties in attempting to do so. It is therefore advisable to instruct a local lawyer. The Italian legal system is adversarial in nature. Italian civil law procedure is regulated by the Codice de Procedura Civile 1940. To commence proceedings, the plaintiff issues a writ (citazione) following the procedures set out in the code, including a statement of claim and a summons to the defendant, advising him of the date of the first hearing. This will be served by a court bailiff (ufficiale giudiziario), and within 10 days of service the plaintiff must file the original of the writ with the court clerk. The defendant must file his defence (comparsa di costituzione) at least 20 days before the hearing. __________________________________________________________________________________________________________________________________________
35 36 37 38
Royal Decree No 1403 of 9 October 1922. Istituto Nazionale della Previdenza Sociale. Article 329 of the Criminal Procedure Code. Law 353/90. 89
Personal Injury: Practice and Procedure in Europe A minimum period of time must elapse between the service of a writ of summons and the first hearing. This period of time ranges from 60–120 days, depending on the distance between the place of domicile of the defendant and the court.38 Should the case be before a Justice of the Peace whose competence is limited to road traffic accidents in which the value of the claim does not exceed LIt 30,000,000, the time period is reduced by half. Service of proceedings is entrusted to the court bailiff39 and is carried out at the request of the plaintiff’s lawyer. In a civil suit, service of proceedings takes place by delivery of a copy of the original to the addressee himself, or to other subjects in lieu, such as someone in charge of the residence or the office. If the bailiff cannot find either the addressee or the above, he will deposit the copy with the town hall and place a notice on the door of the residence of the addressee. He will then send a further notice to the addressee by registered letter or regular post. There is a 10 day time limit from the service of the writ of summons on the defendant to the plaintiff’s lawyer entering the case in the court’s register. Cross-border service is governed by Article 142 of the Italian Code of Civil Procedure, which provides that, unless specific rules exist under international convention, service to the competent consulate is possible. The bailiff is responsible for cross-border service and must send a copy of the writ to the defendant through a public prosecutor, who forwards it to the foreign affairs department and then posts another copy directly to the defendant. A third copy is lodged with the court’s register. The plaintiff may bring in a second defendant. The owner of a motor vehicle may be vicariously liable for any damage caused by a driver of it. An employer may be vicariously liable for the damage caused by an employee. Where the defendant is a minor,40 liability falls on the person who legally represents him or who has custody of him. A guardian, parent or teacher may be held vicariously liable for damage caused by a minor.41 The defendant can bring a third party into the proceedings by serving a writ of summons on him. Where there is more than one person responsible for the plaintiff’s damage, they can all be joined as defendants in the same action. If only one of more defendants appeal, in theory, only that defendant’s participation in the event is re-tried. The powers of the appeal judge do not extend to the re-examination of issues which are not connected to the issues specifically contested by the defendant. In practice, however, the whole action is retried, and the involvement of the defendants who have not appealed will likely undergo judgment by default.
Level of court The level of court in which proceedings must be commenced will depend on the __________________________________________________________________________________________________________________________________________
39 Ufficiale giudiziario. 40 Under 18 years of age. 41 Article 2048 of the Civil Code. 90
Italy predicted value of the claim and the subject matter and complexity of the case. The Giudice di Pace handles claims of a value below LIt 5,000,000, and also road traffic and boat accidents up to a value of LIt 30,000,000. The Pretore deals with claims of LIt 5,000,000–50,000,000. The Tribunale handles claims above LIt 50,000,000.
Court management The court will not provide directions on how to proceed with the case, but will try to reach a settlement between the parties at the first hearing.
Evidence Both the judge and the plaintiff’s lawyer are responsible for obtaining the evidence in civil cases. In criminal proceedings the prosecutor is mainly responsible. Evidence is given orally or in written form. In Italy, patients have a statutory right to see their own medical records. Records required for legal proceedings will be released exclusively to the patient. Both parties can ask the judge to admit evidence provided by their own experts, but the court may also instruct its own experts. The judge usually appoints an expert from a list of those in the court’s jurisdiction. If there is relevant evidence in the plaintiff’s country, however, the court will entrust a competent Italian consulate to obtain a local expert.
Witnesses The court has the power to order the parties to disclose evidence crucial to the case. Witnesses who reside outside the jurisdiction may submit written evidence to the court, but can also be compelled by the court to give evidence in person. Witnesses can be compelled to attend court to give evidence by court order enforced by the police.
Settlement procedures A payment into court may be made by the defendant where it is likely that a settlement may be reached either before or during proceedings. Italian law stipulates that ‘redeeming seizure’ proceedings may be used during proceedings.42 The defendant uses a payment into court as a precautionary measure against punitive interest if held liable.
ENFORCEMENT PROCEEDINGS __________________________________________________________________________________________________________________________________________
42 Article 687 of the Italian Code of Civil Procedure. 43 The European Lawyers Association Italy Branch, Cole, D (ed), Law Profile of Italy, 1995, p 48, British Council. 91
Personal Injury: Practice and Procedure in Europe Enforcement may be by seizure of goods, personal assets or property, or by specific performance.43 The cost of enforcement depends on the amount of damages awarded as well as the kind of activity carried out to execute the enforcement. The most effective types of enforcement are also the most expensive, such as attachment with the debtor’s bank account and real estate attachment. Costs are lower in the case of personal property attachment which is much slower to enforce. It is the responsibility of the parties to seek enforcement, the cost of which is recoverable from the debtor. Interim orders are enforceable if declared as such by the court, and interlocutory injunctions are used frequently.44 The plaintiff sends a notice (precetto) to the defendant asking him to satisfy the judgment and warning of impending implementation of enforcement procedures. If the defendant does not respond positively within 10 days, enforcement must take place within 90 days of the notice. Cross-border enforcement is governed by the Brussels Convention 1968 and the Lugano Convention 1988. If the judgment to be enforced comes from, or will be carried out in, a country which has not ratified these conventions, special provisions from the Italian Code of Civil Procedure will apply.45
COSTS The losing party pays some of the costs and legal fees of the winner. The amount of legal fees recovered by the winner will depend on the charges of his lawyer. The court makes reference to the list of changes provided for by ministry decree. Only the costs of one lawyer can be recovered, so where both a foreign and local lawyer have been involved, it is likely that only the costs of the one will be recovered.
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44 Section 700 of the Code of Civil Procedure. 45 Sections 796–805 of the Code of Civil Procedure. 92
CHAPTER TEN
MALTA
LIABILITY The general standard of care in negligence is that of bonus pater familias.1 Most categories of tort are subject to regimes based on a combination of strict liability and fault, depending on the circumstances of the case and particularly the category of plaintiff. In cases where, for the performance of a particular task, a special skill is required, undertaking that task without the necessary skill provides the basis for liability. In such a case, the defendant will be presumed to have been negligent in having undertaken a task for which he lacks the necessary skill, and no further proof of negligence is required.2 Particular types of harm include the following characteristics: • Road traffic accidents are governed by negligence for which fault on the part of the defendant must be established.3 • Employers liability is based on fault. The duty of the employer is to provide a safe system of work. The basis of liability may also be contractual or ex lege.4 A higher standard of care of one’s contractual obligations is required.5 • Cases of medical negligence are governed by a regime of liability based on negligence. The onus is on the plaintiff to prove that the defendant acted outside normal medical practice.
DEFENCES Some defences will apportion liability, while others will oust a claim entirely. Contributory negligence, for example, will apportion liability between the parties, depending on the degree to which the plaintiff’s own actions caused the damage. It is not possible for a plaintiff to be held 100% contributorily negligent, as this is perceived as implying that the defendant was not at fault at all.
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1 2
3 4 5
Section 1032(1) of the Civil Code. Section 1038 of the Civil Code provides: ‘Any person who without the necessary skill undertakes any work or service shall be liable for any damage which, through his unskilfulness, he may cause to others.’ Culpa aquiliana, as defined in ss 1031–33 of the Civil Code. Occupational Health and Safety Protection Act 1994, Act VII of 1994. See De Majo, GC, Responsabilidad Penal Y Responsabilidad Civil De Los Profesionales, 1993, Universidad De La Laguna. 93
Personal Injury: Practice and Procedure in Europe
PERSONS UNDER A LEGAL DISABILITY A minor under nine years of age will not be held liable in civil law. This is the same for a minor under 14 years of age, unless it can be proved that he acted with mischievous discretion. The parents of a minor can be held vicariously liable if they fail to exercise due care to the standard of bonus pater familias. Where a plaintiff or defendant is not capable of conducting his own affairs, a curator will be appointed by the court to act in his best interests.
JURISDICTION Jurisdiction is governed by the provisions of Sub-title III (Of Please to the Jurisdiction) of Title II (Of Please Generally) of Book Three (Of Certain Matters relating to Judicial Procedure) of the Code of Organisation and Civil Procedure.6 Domicile is treated as being the place one intends to be one’s permanent home. If proceedings are brought at the place of domicile of the defendant, which is different to the place of the accident, a Maltese court will apply the lex loci delicti. If the accident happened in Malta, but the defendant is domiciled elsewhere, proceedings must be commenced in the foreign country.7 If the defendant is still visiting Malta at the time the question of jurisdiction arises, the courts of Malta will have jurisdiction. The principle of exceptio privilegium applies to persons residing in Malta when an action is instituted against them in the court of Gozo and Comino,8 and to persons residing in Gozo and Comino when an action is instituted against them in the courts of Malta.9 This means that, when the jurisdiction of a court is contested by one of the parties, the court will cease to have jurisdiction.
LIMITATION PERIODS The limitation period is two years in tort law if the tortious act does not also constitute a criminal offence.10 If the damage arises from a criminal offence, the limitation period is the same as for that particular crime under the Criminal Code.11 It starts to run from the date of the accident or, in rare cases, from the date of knowledge of the injury. The term ‘prescription’ is used in reference to the limitation periods in Malta. Prescription is available as ‘a mode of releasing oneself from an action, when the __________________________________________________________________________________________________________________________________________
6 7 8 9 10 11
Section 741 et seq. The principle of lex domicilii applies. These are other islands in the Maltese Archipelago. Section 767 et seq of the Code of Organisation of Civil Procedure. Section 2153 of the Civil Code. Section 2145 of the Civil Code. 94
Malta creditor has failed to exercise his right for a time specified by law’.12 If the plaintiff fails to exercise his right of action within the period of prescription, he loses his right of action. The period of prescription may be interrupted by the filing of a judicial letter by the creditor. The letter must be filed in the court registry before the lapse of the period of prescription, and a copy served on the defendant not later than one month after the last day of the period of prescription.13 Prescription is also interrupted by the defendant, even informally, admitting liability. The effect of an interruption is that the portion of time elapsing before the interruption is disregarded, and the period of prescription starts to run anew.14 If prescription is suspended, rather than interrupted, the time already elapsed prior to the suspension is included in the overall prescription period.15 Causes of suspension include: 1 those arising from the relationship between the parties (eg parent and child, spouses); 2 those arising from a quality of the plaintiff (eg mentally infirm); and 3 those arising from the nature of the right (eg a right subject to a condition). The courts have no discretion to extend the limitation period. The parties can agree to a shorter limitation period, but not a longer one.16
FUNDING Legal aid The main criterion to qualify for legal aid is the financial circumstances of the party. A person must have an annual income of less than LM 365 and not own assets in excess of the value of LM 500. Legal aid claimants are completely exempt from any payment of legal fees and expenses. Maltese law does not specifically address the question of the availability of legal aid to non-residents. There is no law that explicitly restricts legal aid to only Maltese
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12 13 14 15 16
Section 2107(2) of the Civil Code. Sections 2128–30 of the Civil Code. Section 2136 of the Civil Code. Section 2126 of the Civil Code. Section 2108 of the Civil Code provides: ‘(1) Prescription cannot be renounced beforehand, nor shall it be lawful to establish a time for prescription longer than that specified by law. (2) Prescription already acquired may be renounced.’ 95
Personal Injury: Practice and Procedure in Europe citizens. Legal aid is not available for an action outside the jurisdiction.
Contingency fees Lawyers are prohibited from acting on a contingency fee basis in Malta. Lawyers’ charges are regulated by a tariff in combination with the documents drafted and the number of hours worked, although in practice lawyers tend to charge for extra-judicial services as well. This includes verbal and written advice, research in connection with the preparation of written submission, and basically all other work performed at the office. New tariffs are due to come into effect, but it will also be possible for clients and lawyers to enter into specific agreements in respect of legal fees without reference to the official tariffs. In matters of civil litigation, the legal procurator’s fee is equivalent to one-third of the lawyer’s fee.
Legal expenses insurance There is no law restricting the use of legal expenses insurance by a plaintiff. Very few home contents insurance policies in Malta provide for legal assistance in bringing or defending an action.
Trade unions It is customary for a union to grant assistance to a member in the form of advice and also the provision of legal services. Generally, the union lawyer will represent a member in his claim, although the member is free to choose another lawyer. However, financial assistance is not usual.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings In principle, the criminal courts do not have the power to award compensation to victims. Recently, however, a system has evolved whereby the criminal courts award suspended sentences on the condition that the convicted defendant makes reparations. The plaintiff must therefore rely on a formal claim to the civil courts for compensation.
Criminal investigation When a person is injured the police are automatically called and will start investigating, and a magisterial enquiry will be held. Unless proceedings are instituted by a formal complaint by the injured party, criminal proceedings will usually be commenced automatically. The only body which needs to be notified when a person is injured is the Social Services Department for national insurance purposes. 96
Malta At the discretion of the court, the accident will be reconstructed on-site by the enquiring magistrate or by the court-appointed technical or legal expert.
Release of evidence If the police think that, in the particular circumstances, they are not committing a breach of confidence, they will usually make their evidence readily available to the plaintiff’s lawyer. Evidence will be obtained by formal request for a fee, depending on the nature of the evidence.17 The evidence will be released at the actual hearing. It usually takes a minimum of 10 days for police reports to be released. Obtaining copies of magisterial enquiries may require a few months. Where the suspect is a minor, or the police are still investigating, or if a court order exists prohibiting disclosure, release will be delayed.
Use of evidence in civil proceedings The criminal action is treated as being wholly autonomous from the civil action, with no reference being allowed in civil proceedings to a criminal conviction.18 Criminal convictions cannot be pleaded in the civil courts and, generally, no weight is attached to a criminal acquittal or conviction is a subsequent civil procedure. The possibility is seen as being inappropriate since the burden of proof is different in civil and criminal actions, the former being on the balance of probabilities and the latter being beyond a reasonable doubt. At most, evidence already heard in criminal proceedings may be exhibited in the civil case in order to expedite matters.
THE LEGAL PROFESSION Lawyers in Malta do not advertise their services. They have the right to call themselves specialists in the field of personal injury. Although there is no association of personal injury lawyers, a list of lawyers who specialise in this field can be obtained from the
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17 For example, there is a fee for sketches in road traffic accidents, and for copies of magisterial enquiry reports. The fee for the former is currently 3 Maltese Liri (LM). The fee for the latter will be more substantial, depending on the extent of the records. 18 Section 3 of the Criminal Code provides: ‘(1) Every offence gives rise to a criminal action and a civil action. (2) The criminal action is prosecuted before the courts of criminal jurisdiction, and the punishment of the offender is thereby demanded. (3) The civil action is prosecuted before the courts of civil jurisdiction, and compensation for the damage caused by the offence is thereby demanded.’ Section 6 also states that ‘the criminal action and the civil action are prosecuted independently of one another.’ 19 Courts of Justice, Republic Street, Valletta. 97
Personal Injury: Practice and Procedure in Europe Maltese Chamber of Advocates and the Chamber of Legal Procurators.19 There is a distinction in Malta between lawyers and legal procurators. The latter represents clients in the lower courts, and prepares and files court papers and warrants. Lawyers have rights of audience in all the courts in Malta as advocates. Legal procurators may only plead before the inferior courts. Where a person is legally aided, a lawyer will be appointed pro tempore. The lawyer may not refuse to undertake or continue the case to which he has been assigned without good reason. This is enforceable by fine or suspension from legal practice.20
INSURANCE Insurance requirements Third party insurance is compulsory for the operation of motor vehicles. The only limitations on indemnity are those stipulated in the insurance policy itself. The Employers’ Liability (Compulsory Insurance) Act 197421 also imposes compulsory insurance, although this legislation has not yet come into force.
The uninsured driver A person could avoid taking insurance for motor vehicles. Unless the compulsory insurance is paid for, a road licence will not be issued. The police keep a database of motor vehicles and the respective dates of expiry of their insurance policies. The police are unlikely actively to seek out an offending vehicle and remove its plate, but will institute criminal proceedings for failure to have a valid licence when they come across them. The offence is punishable by fine and/or imprisonment.22 If the defendant is in breach of the terms of his insurance policy at the time of the accident, the insurer is not obliged to pay. In the case of motor vehicle accidents, personal injuries will be compensated by a body which will adopt the claim. This voluntary group of insurers may make ex gratia payments to the injured party from a fund to which authorised insurers contribute.
Insurer as party to proceedings It is not possible to bring proceedings directly against the insurance company instead of
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20 He may be ordered to pay the expenses of the lawsuit, and suspended from legal practice for up to one month. 21 Chapter 241 of the Laws of Malta. 22 Section 3 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Ch 104 of the Laws of Malta. 98
Malta the tortfeasor, except in motor vehicle cases where compensation may be sought directly from the defendant’s insurer. Notice must be given to the insurer by means of service of a judicial act of the proceedings, and given before or within seven days of the conclusion of the evidence of the plaintiff.23 The insurer may then intervene in the proceedings in statu et terminis.24
DAMAGES Heads of damage Under Maltese law, the heads of damages for personal injury are: actual physical loss and expenses incurred;25 and loss of past and future earnings.26 No compensation is available for pain and suffering.27
Interest Interest accrues on awards of damages from the date of the filing of the writ, provided that a quantified amount of damages is claimed. Interest on unquantified claims will only accrue once judgment has quantified the amount due.28
Lump sum or periodic payments Damages are always paid in a lump sum and awarded in Maltese currency.
Provisional and interim payments Provisional and interim payments are not awarded.
Punitive damages Punitive damages are not awarded.
Bereavement damages __________________________________________________________________________________________________________________________________________
23 Section 10(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Ch 104 of the Laws of Malta. 24 Section 960 of the Code of Organisation and Civil Procedure. 25 Damnum emergens. 26 Lucrum cessans. 27 De Majo, p 330. 28 At time of writing interest was fixed at 8%. 99
Personal Injury: Practice and Procedure in Europe Damages are not paid for bereavement per se, but only for the loss of earnings suffered by dependants and heirs of the deceased.
Level of damages There are no publications detailing and updating levels of damages in Malta. In assessing in percentage terms the disability of the plaintiff, the courts will rely on the guidelines of the Social Security Act 1987. It does not provide guidance on the assessment of quantum, however. The method of assessment is based on judicial practice.
Principles and guidelines The degree of permanent disability is multiplied by the number of lost years of work and the projected annual income of the plaintiff. The lump sum is normally reduced by 20% for the benefit of receiving expected future earnings in advance. When the multiplier is very low, the deduction is less.
Social security and employers’ payments In general, Maltese courts disregard state benefits received by the plaintiff when quantifying an award of damages. Payments for sickness or disability benefits are treated as justified as the employee has a statutory obligation to contribute towards them. This is therefore not perceived as being double compensation. Employers are under a statutory duty to pay an employee’s salary for the first six months of his incapacity. The employer has no right of recovery for these payments.
PROCEDURE Commencing proceedings Service A claim is initiated in Malta by issuing a writ of summons or filing an application against the defendant. It may be advisable for practical reasons to instruct a local lawyer, but there are no rules preventing local authorities such as the police from giving information to a foreign lawyer. Service of proceedings initially takes place by registered mail. If this is unsuccessful, a court marshal will effect service personally. Where even this is unsuccessful, service will be carried out by publishing the writ in the government gazette or by affixing a copy on the residence of the defendant. There is a time limit of six months for this to __________________________________________________________________________________________________________________________________________
29 For example, a second defendant could be brought in cases of employers liability where the employer is vicariously liable for a negligent act of an employee. 100
Malta be carried out. Leave of the court must be obtained for service out of the jurisdiction. Proof of service of proceedings is automatically inserted by the process server via the court registrar in the records of the case. If more than one person is responsible for the plaintiff’s injuries, they can all be joined as defendants in the same action. The plaintiff can bring in a second defendant.29 The defendant can bring in a third party by filing an application before the court hearing the action. If only one of more defendants appeal, it is only that particular defendant’s liability which is retried.
Level of court The level of court at which proceedings will be commenced depends on the amount of damages likely to be awarded. The case will be heard before a superior court, the First Hall of the Civil Court, if the claim exceeds LM 1,000, otherwise it is heard by an inferior court, the magistrates court.30
Court management Maltese civil law is adversarial in nature. The average time from the commencement of proceedings to the court hearing is four months. The court has control of the case in this respect. The law of procedure does not oblige the court to set a date for, or hear, proceedings in any particular time frame. Adjournments and hearings may be agreed between the court and the parties once proceedings have been commenced.
Evidence The court will only give directions on how to proceed with a case where unusual circumstances are involved, eg the summoning of foreign witnesses. The court appoints its own experts from its own jurisdiction. The ex parte opinions of experts of the parties to the action are admissible but not binding on the court.31 Evidence is submitted either orally to the court or by affidavit. There is no statutory right in Malta to see medical records or details of treatment given. A hospital or a doctor may refuse to release them, in which case the patient can request a court order for their release.
Witnesses Witnesses can be compelled to attend court to give evidence by the issuing of a subpoena, followed by the issue of a warrant of arrest executed by the court marshal or the police. In civil matters, witnesses are bound to disclose all they know, as well as produce all __________________________________________________________________________________________________________________________________________
30 Act XXIV of 1995, amending the Code of Organisation and Civil Procedure. 31 Amendment to the Code of Organisation and Civil Procedure by Act XXIV of 1995. 101
Personal Injury: Practice and Procedure in Europe documents in their possession. The two exceptions to this rule are advocates and legal procurators who owe a duty of confidentiality to their clients, and priests who owe a duty of confidentiality concerning knowledge received through confession. The Maltese courts have, at times, recognised other exceptions such as the knowledge of psychiatrists, editors of newspapers, and architects.
Settlement procedures Payments into court by a defendant would normally occur when the defendant admits liability but contests the quantum of damages claimed by the plaintiff. In such a case, if the sum finally awarded is closer to the defendant’s deposit than to the plaintiff’s claim, the plaintiff may be required to pay judicial costs.
ENFORCEMENT PROCEEDINGS Enforcement might be a problem when the defendant does not have enough assets to meet a judgment. The enforcement procedures used in Malta include warrants of seizure, garnishee orders, warrants of impediment or departure, and prohibitory injunctions. It is up to the parties to seek enforcement. It is not particularly costly to seek enforcement, although if moveable assets are sold by court order a valuation must first be submitted to the court for its approval. Judgments may be enforced provisionally pending appeal. Cross-border enforcement is governed by the Code of Organisation and Civil Procedure (COCP), which also makes provisions for the enforcement of incoming judgments from other countries.32 Reciprocal enforcement agreements also exist between Malta and other foreign States.33
COSTS If the case goes to trial, the court will usually order the losing party to pay all of the winner’s costs. Where a claim is settled against an insurance company, it is common practice for the insurer to pay the plaintiff’s lawyers 2% of the value of the claim. If a legally-aided plaintiff wins the claim but the defendant has insufficient means to pay, the plaintiff will have to pay all fees and expenses due. He then has a right to be reimbursed by the defendant. If a foreign and a local lawyer have been involved it is likely that only the costs of __________________________________________________________________________________________________________________________________________
32 Title V, COCP. 33 For example, the British Judgments (Reciprocal Enforcement) Act 1924, Cap 52 makes provisions for the enforcement in Malta of judgments obtained in the UK. 102
CHAPTER ELEVEN
THE NETHERLANDS
LIABILITY A major reform of civil law took place in The Netherlands on 1 January 1992 after some 40 years of preparation. The new law is primarily an amendment to the former civil code to accommodate case law from the last 100 years. This chapter is based on the new law, but it is important to note that, for accidents which took place before 1 January 1992, the old law will be applicable. In general, liability in The Netherlands is based on fault. The standard of the duty of care is based on reasonableness or pater bonus familias with the burden of proof resting on the plaintiff, although the court may adjust this if it is deemed equitable to do so.1 Some areas are subject to a kind of strict liability according to which the defendants are liable for acts or omissions in these areas regardless of fault.2 Particular types of harm include the following: • Road traffic accidents are more or less based on principles of strict liability. The driver of a motor vehicle is liable for all damage sustained by pedestrians and cyclists, unless he proves force majeure.3 If the driver proves that he acted in force majeure he will still be liable for 50% of the other parties’ damages. • Occupiers’ liability is based on principles of strict liability.4 • Medical negligence cases are governed by a special piece of legislation which bases liability on fault and on breach of the rule of ‘informed consent’.5 • Damage caused by the use or ownership of an animal is a matter of strict liability.6 • Product liability is a matter of strict liability.7 • Employers’ liability is more or less based on principles of strict liability. The burden is on the employer to prove either that he discharged his duties under the safety rules and regulations, or that the accident was due to force majeure or was caused by gross contributory negligence on the part of the victim. Employers may be vicariously liable for the tortious acts of their employees.8 __________________________________________________________________________________________________________________________________________
1
2 3 4 5 6 7 8
Article 177, Rv. For further details, see Elders, JLM, ‘Simplification of the Taking of Evidence’, in Wedekind, W (ed), The Eighth World Conference on Procedural Law: Justice and Efficiency, 1989, p 103, Deventer, The Netherlands: Kluwer. ‘Risk liability.’ Wegenverkeerswet 1994, para 185. Paragraph 6:174, Rv. Wet Geneeskundige Behandelovereenkomst. Paragraph 6:179, Rv. Paragraph 6:185, Rv. Paragraph 6:170, Rv. 103
Personal Injury: Practice and Procedure in Europe •
Some environmental accidents are governed by strict liability regimes, eg damage resulting from rubbish dumps and drilling holes. There are no special rules for fatal accidents.
DEFENCES The defences of contributory negligence, intervening act of a third party, necessity, self-preservation and ignorance of potential harm can be raised. Depending on the circumstances, all these defences can, in theory, lead to a reduction or complete ousting of a claim. A plaintiff can be held 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY If the defendant is a minor, his parents or guardian are not obliged to ask the court’s permission to defend him. The court’s approval will be required, however, if they decide not to defend him. Parents can be vicariously liable for the acts of minors under 14 years of age.9 The parents of 14 and 15 year old minors will be liable unless it can be proved that they could not prevent their child from committing the tort.10 In cases relating to infants, parents and guardians can only start legal proceedings on behalf of a minor as a plaintiff after authorisation by the Kantonrechter, the lowest court.
JURISDICTION The rules for territorial competence are set out in the Civil Code. The Brussels Convention11 applies where the other country concerned is a signatory to the treaty. Otherwise, jurisdiction is based on domicile where the defendant resides in The Netherlands.12 Domicile is defined as the place where a person is registered on the civil registration list of the town council. If the defendant is a company, the domicile is where the company is registered with the chamber of commerce. If proceedings are brought at the place of domicile of the defendant which is different to the place of the accident, the law of the place of the accident will apply. If the domicile of the __________________________________________________________________________________________________________________________________________
9 Paragraph 6:169.1, Rv. 10 Paragraph 6:169.2, Rv, and Arts 164 and 165, Rv. 11 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968. 12 Article 126, para 1, Rv. 104
The Netherlands defendant is not in The Netherlands but the plaintiff is domiciled in The Netherlands, the Dutch courts will have jurisdiction.13 If the accident happened in The Netherlands and the defendant is domiciled elsewhere, the proceedings can be commenced in The Netherlands. If the other state is a party to the Lugano Convention 1988, the competence of the Dutch Court will be based on Article 5 of the Convention. Parties can ask for proceedings to be transferred to another court if they are both in agreement.
LIMITATION PERIODS The general limitation period is five years starting at the date the plaintiff becomes aware of the damage and can attribute responsibility to the defendant.14 Shorter limitation periods apply in certain cases; eg in road traffic cases against in insurer a three year limit applies. There is also a three year time limit in cases of product liability and public transportation. If the five year limitation period does not run because the plaintiff is either unaware of the damage or cannot identify the person responsible, then an overall limitation period of 20 years will apply. The limitation period can be extended by consent of the parties, but only on expiry. The courts do not have the discretion to extend the limitation period, but also cannot invoke the limitation on its own. It is left to the concerned party to invoke the limitation explicitly. A limitation period can be interrupted by the start of proceedings, a written summons, acknowledgement by the liable party or negotiations. There is no special rule for cases in which the plaintiff is a minor or a mental patient.
FUNDING Legal aid Legal aid is available to those who can prove they are unable to pay for litigation. They may apply15 to institute proceedings either free or for lower fees.16 The legal aid scheme in The Netherlands17 does not place any restrictions on choice of lawyer. A foreigner or non-resident can apply for legal aid if the court proceedings take place in
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13 Article 126, para 3, Rv. 14 Paragraph 3:310 of the Dutch Civil Code. 15 Via a certificate of indigence – bewijs van onvermogen – a certificate from the mayor’s office regarding a person’s financial resources, as per Art 11 of the Legal Aid Act of 4 July 1957, Stb 223. 16 Article 18. The Dutch Constitution also recognises a right to legal aid. 17 The legal aid scheme is sometimes called the ‘rechtsbijstand aan min of onvermogenden’ or ‘gefinancierde rechtshulp’, but the most popular term seems to be ‘toevoeging’. 18 Article 10 of the Legal Aid Act. 105
Personal Injury: Practice and Procedure in Europe The Netherlands and if an applicable treaty is in force.18 The criteria for qualification for legal aid have been changed 2–3 times per year in the last few years. Currently the value of the claim should be more than Dfl 400. The most important criterion is the financial circumstances of the person involved. Normally his income should be less than Dfl 2,114 net per month with personal savings of less than Dfl 14,800. In most cases the income of the partner will be taken into consideration. If the person owns his house, then the difference between the value of the house and the mortgage should not be more than Dfl 75,000. The lawyer will receive a fixed amount of money under the legal aid scheme.19 He will be entitled to extra payments if he spends an exceptional number of hours on the case. In civil law, the client will have to pay a small contribution toward the cost of his action and a part of the court fees himself.20 The Ministry of Justice, which funds the legal aid scheme, will recoup the costs of legal aid from the losing party. These costs have priority and any remainder of the damages is then paid to the winning party. In personal injury cases, lawyers usually ask for conditional legal aid for the plaintiff, so that the legal aid will be void if the plaintiff wins the proceedings and receives a substantial amount of compensation. The plaintiff will be left to pay the lawyer by himself. In personal injury cases which are settled out of court, the insurer will often agree to pay the fee of the plaintiff’s lawyer according to his hourly rate as long as these costs are reasonable. In such a case, the conditional legal aid will be withdrawn because there is no need for it. If the case goes to court, the court will award costs. If the plaintiff receives a substantial amount of money, the legal aid board will sometimes decide that he should pay his own lawyer’s fees.
Contingency fees Lawyers in The Netherlands do not operate on a contingency fee basis. They charge on an hourly basis and rates vary.
Legal expenses insurance Legal expense and home contents insurance are sometimes relied upon.
Trade unions
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19 Set by Order in Council (Algeme Maatregel van Bestuur) under Art 25 of the Legal Aid Act. 20 Dfl 50–660 depending on his income, plus 25 or 50% of court costs to a maximum of Dfl 400 in civil cases. 106
The Netherlands Some trade unions will provide legal assistance to union members.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings Dutch criminal courts have the power to award compensation for criminal injuries, and since April 1995 there has been no cap on the amount of compensation which can be claimed in a criminal case. If the plaintiff does not submit a formal claim, the court can order compensation regardless as part of the criminal sentence. If the court orders compensation of its own volition, rather than at the request of the victim, he will not be prevented from pursuing a civil action. In practice, such awards of compensation are limited to relatively small amounts. A claim may be declared inadmissible if the legal questions are too complicated. In such circumstances, the victim remains free to pursue a civil action. As different to civil awards, there are no strict criteria for the assessment of the quantum of criminal compensation. The plaintiff must prove the extent of damage he sustained to the court.
Criminal investigation A standard accident form can be obtained from the Dutch organisation of car insurers.21 This form is used to establish the basic facts of a case, including names, addresses, licence plates, insurance companies and policy numbers, and a short description of the accident. This evidence may be used in court in conjunction with the evidence of the prosecution and police which is generally made available to the interested parties. The police will generally only reconstruct an accident in the most severe cases. It can take more than one year for the prosecution to make a decision on whether or not to prosecute, and it can take up to two years for the trial to commence. There is no obligation to inform any other bodies of an accident, but doing so will often help with the investigation. Special bodies such as the Labour Inspectorate,22 the Health Inspectorate23 and the Environmental Inspectorate24 have well-qualified experts in their respective areas. There is a right to access of medical records in The Netherlands, but the plaintiff __________________________________________________________________________________________________________________________________________
21 22 23 24 25
NVAA, Zoetermeer, PO Box 7070, 2701 AB Zoetermeer. Arbeidsinpectie. Inspecteur voor de Volksgezondheid. Milieudienst. Vertrouwensarts. 107
Personal Injury: Practice and Procedure in Europe will not always be allowed to see the medical records himself. He has to ask a ‘confidential doctor’ to examine the records on his behalf.25
Release of evidence Lawyers may request a copy of the police report from the prosecutor in writing, explaining the interest of his client. Having the internal administration number of the police station involved and the date on which the police report was sent by the police to the prosecutor can facilitate the request. The Ministry of Justice has endeavoured to make it easier for victims to receive the information needed for legal actions. It is no longer necessary, therefore, to be a lawyer to obtain this information, and where it used to take three to six months to obtain a copy of a police report, it is now possible to receive the information much more quickly. There is no fee to pay to obtain the evidence. If the prosecutor refuses to release the police report it is possible to appeal.26 The prosecutor might refuse to release the police report if he needs secrecy for his own criminal case and fears that the release might compromise the outcome of the criminal case, but this happens only rarely since the introduction of this new policy.
Use of evidence in civil proceedings A criminal conviction can be pleaded in a civil court as conclusive proof of fault. A foreign conviction, however, cannot. Neither criminal proceedings nor a foreign prosecution will interrupt the limitation period.
Criminal injuries compensation scheme If the defendant is unable to pay the compensation, a foundation for victims of crime can award some compensation.27 This foundation gives primarily-financial help to victims and is available for serious injuries and serious crimes. If it pays financial compensation to the victim, it then has redress against the defendant. The maximum amount of compensation awarded is 50,000 Dutch guilders (Dfl) for material damages and Dfl 20,000 for immaterial damages. Another foundation offers legal and psychological assistance to victims of crime.28
THE LEGAL PROFESSION __________________________________________________________________________________________________________________________________________
26 27 28 29
Wet Openbaarahdid Bestuur (Administration Publicity Act). Schadefonds Geweldsmisdrijven. Slachtofferhulp. Chorus et al, p 197. 108
The Netherlands Litigating parties have an obligation to retain counsel unless the case is before the Rantongerechten, where parties are allowed to represent themselves or be represented by foreign lawyers.29 There is no distinction between solicitors and barristers in The Netherlands. Each lawyer is qualified to provide total legal assistance.30 Dutch lawyers are allowed to call themselves specialists in the field of personal injury. This is, however, currently under review by the Bar. The Bar Association,31 the Legal Aid Bureaux32 and the Dutch Union of Personal Injury Lawyers33 provide information about lawyers who specialise in personal injury, but their lists are not conclusive. There is an association of personal injury lawyers as well as an organisation of lawyers and doctors involved in personal injury cases.34 Most lawyers advertise their services. Lawyers have a right of audience in courts all over the country but will have to act under the name of a lawyer registered at the particular court concerned. Where a person is legally aided there is no restriction on choice of lawyer. If a person cannot find a lawyer willing to act under the legal aid scheme, the chairman of the local Bar association will appoint a lawyer.
INSURANCE Insurance requirements Insurance is compulsory for the operation of motor vehicles. There are no limitations on indemnity.
The uninsured driver It is a criminal offence to drive uninsured, but there is no system which ensures that everyone has insurance. Insurers are obliged to pay damages to the injured party regardless of whether the
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30 For further details on the subject of legal practitioners in The Netherlands see Voskuil, CCA, ‘Courts and lawyers facing complex litigation problems’ in Snijders, HJ and Ynzonides, M (eds), The Ninth World Conference on Procedural Law: Role and Organisation of Judges and Lawyers in Contemporary Societies, 1992, p 121, Deventer, The Netherlands: Kluwer,. 31 Nederlandse Orde van Advocaten. 32 Buro’s voor Rechtshulp. 33 Vereniging van Letselschade-advocaten. 34 The Vereniging van Letselschade Advocatedn, and Werkgroep Artsen en Advocaten. 35 Waarborgfonds. 109
Personal Injury: Practice and Procedure in Europe driver was in breach of the terms of his insurance contract. If the driver is uninsured a foundation will pay compensation to the victim.35
Insurer as party to proceedings In the case of road traffic accidents, proceedings can be brought directly against the defendant’s insurer instead of against the defendant.
DAMAGES Heads of damage An award of damages is divided into material and immaterial damages. Material damages are generally recovered without difficulty, but it is much more difficult to recover immaterial damages from insurers. If an insurer knows that it will have to pay a substantial amount in the end, it will normally be prepared to make an interim payment as long as it does not put it at a disadvantage in negotiations over the total amount.
Interest Interest accrues on damages from the date of the accident and is claimed by registered letter.36
Lump sum or periodic payments The courts award damages in the forms of both lump sums and periodic payments.
Provisional and interim payments Interim payments are used where there may be a significant delay in finalising an award. This is requested in a separate summary procedure. The plaintiff must convince the court that he will most likely succeed in the proceedings under way, and that he has an urgent need for early access to part of the award. Insurers will make an interim payment on a voluntary basis where liability is clear. Provisional damages are unpopular with insurers and are therefore rarely used. Amicable settlements are difficult to reach if the insurance company is not given the option of a final settlement.
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36 Interest is currently fixed at 7%. 110
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Punitive damages Dutch courts do not award punitive damages.
Bereavement damages Dutch law does not know bereavement damages by such a term, but compensation will be paid to spouses, children and relatives who were financially dependent on the deceased. The cost of the funeral will also be recoverable under this head.
Level of damages There are certain publications in The Netherlands which detail and update levels of damages.37 Only legal costs which were reasonably necessary will be claimed in the award of damages. The cost of bringing proceedings in relation to the award of damages are a serious consideration in determining whether it will be worthwhile to pursue a claim.
Principles and guidelines Assessment of quantum of damages is based on restoring the plaintiff to the position he would have been in had the accident not been sustained. The courts can award damages in a foreign currency.
Social security and employers’ payments Any benefits received by the plaintiff from the social security system are deducted from the award of damages. A direct right of action is based on the Sickness Benefits Act, Compulsory Health Insurance Act and the Invalidity-Insurance Act. There is no right of priority over the plaintiff’s damages accompanying this right of reimbursement, however. In fact, it is the custom that the social security organisation gives priority to the plaintiff. If an employee is unable to work due to sickness or injury, he is entitled to payment of 70% of his salary. The first year’s compensation will be paid by the employer.38 The employer has a right of reimbursement to a maximum of the damages that the employee could have claimed. In effect, the employer claims for his net salary.
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37 For example, Smartegeld, published by the ANWB (the Dutch organisation for car drivers). 38 This new law is popularly termed ‘Ziektewet’. 111
Personal Injury: Practice and Procedure in Europe Collective employment contracts (CAOs) between unions and management are obligatory for all employees of certain types of industries and businesses. The terms are generally that the employer must pay sickness benefits of 100% of salary for two years.
CIVIL PROCEDURE Commencing proceedings Service A civil claim is initiated in The Netherlands by sending a registered letter to the defendant advising him to report the claim to his insurance company. To initiate proceedings, the plaintiff must send a summons39 to be served on the defendant40 by a process server or bailiff.41 A foreign lawyer will not necessarily require the assistance of a local lawyer in investigating the accident, although fluency in either English or Dutch will facilitate the investigations. Lawyers from other countries of the European Union are allowed to appear before the Dutch courts, but only with the assistance of a Dutch lawyer.42 The hearing is usually set in one to three months time. The defendant must notify the court of his defences before the hearing. The judgment is given one to three weeks after the hearing. A writ of summons notifying the defendant of the proceedings must be given one month before the hearing at the county court and only eight days before the hearing at the district court. The parties can agree on postponing the time limits for writs of summons. In urgent matters it is possible to commence summary proceedings in both levels of court. Normally, the hearing will take place one to three weeks after request of the summary procedure. The judgment is usually provided two to four weeks after the request. In extremely urgent cases, it is possible to arrange for summary procedure and judgment all within one day. If more than one person is responsible they can be joined as defendants in the same action. The defendant can bring in a third party by request. If the plaintiff objects, then the court will make the decision. If the defendant is allowed to bring in a third party, he will have to start his own proceedings against the third party. Both sets of proceedings will be connected to each other in that judgment can be given in both cases at the same time. The plaintiff can bring in a second defendant. Where only one of more defendants appeals, only his involvement will be retried. __________________________________________________________________________________________________________________________________________
39 40 41 42
Cagvaarding. Article 1, paras 2 and 5 of the Dutch Civil Code (Rv). Deurwaarder. Articles 16a–f of the Advocatenwet. 112
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Level of court Proceedings usually commence in the county court, the Kantongerecht, which is competent for claims of up to Dfl 5,000 and some special areas such as employer’s liability. The district court, the Rechtbank, deals with claims valued above that. At county court level, parties do not need representation by a lawyer.
Court management Despite the ‘principle of passiveness’,43 in recent years the courts have begun giving more directions at an early stage as to how to proceed with the case. Often, a hearing is held at the beginning of the proceedings so that the court can offer some guidance.
Evidence The Dutch legal system is adversarial in nature. The rules of Dutch civil procedure are set out in the Dutch Civil Code.44 Part I lays down the rules for litigation in the civil courts.45 The burden of proof rests with the plaintiff. The plaintiff will introduce his own expert evidence. The courts will provide their own experts, will try to focus the proceeding on the most crucial issues and will encourage an amicable settlement.
Witnesses Evidence is usually submitted in written form, but for important issues witnesses will be summoned to give their evidence in person. Where a witness resides outside the jurisdiction, the court will prefer the witness to appear in person to give evidence. Sworn depositions can be used in lieu, but are likely to be given less credence by the court. Witnesses are legally bound to appear in court if summoned. Reluctant witnesses will be escorted to court by the police following the issue of a court order. This is rarely done since a reluctant witnesses does not tend to give statements which are favourable for the party that had him arrested. A defendant cannot be compelled to disclose his evidence.
Settlement procedures
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43 Chorus, JMJ, Gerver, PHM, Hondius, EH and Koekkoek, AK (eds), Introduction to Dutch Law for Foreign Lawyers, 2nd edn, 1993, p 197, Deventer, The Netherlands: Kluwer. 44 Weboek van Burgerlijke Rechtsvordering. 45 Van de wijze van procederen voor de Kanongerechten Arrondissementsrechtbanken, Hoven en de Hoge Raad. 113
Personal Injury: Practice and Procedure in Europe There are no payments into court by defendants in Dutch proceedings. The only way for the defendant to save costs is by settling the claim before the proceedings are brought before the court.
ENFORCEMENT PROCEEDINGS Part II of the Dutch Civil Code sets out the rules for the enforcement of judgments.46 The defendant must satisfy the judgment within two days of notification of the judgment by the bailiff. Enforcement is left up to the parties, and the court is not involved. The defendant must pay the judgment within two days. If he fails to do so the judgment can be enforced by seizure of the assets or salary of the defendant. The defendant will also have to pay for enforcement costs. It is possible to freeze the defendant’s assets before proceedings are even commenced by permission of the president of the county court. The defendant can object to this by asking for an annulment in a summary procedure. The freeze will only be annulled if the president of the court is of the opinion that the claim of the plaintiff does not have a reasonable chance of being successful. Cross-border enforcement requires an excequatur from the president of the county court.47 This will usually be awarded unless the president is of the opinion that the proceedings in the foreign country do not fulfil the fundamental criteria of a fair trial. Interest runs on judgments from the date of the accident until the day of full and final payment.48
COSTS The losing party generally pays the costs of the other side.49 However, the costs of foreign lawyers are not usually covered.
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46 Van de tenuitvoerlegging van vonnissen en authentieke akten. 47 This is a stamp given by the president of the court to verify that the procedure meets set criteria and all formalities were taken into consideration. 48 At the time of writing the interest rate was 7%. 49 Article 56, Rv. 114
CHAPTER TWELVE
NORTHERN IRELAND
LIABILITY The standard of care owed in most categories of tort is based on reasonableness, with some of the following characteristics: • Road traffic accidents are governed by fault-based liability. • Employer’s liability is governed primarily by fault, according to which the employer owes a duty of care to provide a safe system of work. • Medical negligence is based on fault. The burden is on the plaintiff to prove that the defendant acted outside normal medical practice. • Fatal accidents are governed by a fault-based regime. The burden is on the plaintiff to prove that the defendant’s negligence caused the death and consequential loss to the plaintiff. • Product liability is governed by a strict liability regime, subject to certain defences. • Occupier’s liability is based on a standard of reasonable care under both statute and common law. • Accidents caused by animals are based on both fault and strict liability, depending on the category of animal. • Environmental accidents are based on fault. The burden of proof is on the claimant to show fault in either nuisance or negligence. • In cases of train accidents, the plaintiff must prove fault. • Aeroplane accidents are governed by the Civil Aviation Act 1949 which imposes a regime of strict liability.
DEFENCES The defences which apply to cases of negligence include volenti non fit injuria, contributory negligence and novus actus interveniens. A case can fail for want of proof of causation, foreseeability or remoteness of damage. Most defences will oust the injured person’s claim, but contributory negligence will reduce the compensation proportionately. In theory, a plaintiff may be found to be 100% contributorily negligent, although in practice this is rare.
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PERSONS UNDER A LEGAL DISABILITY A minor can be held liable at any age. He is sued through a parent as next friend or guardian. The parents of the minor will only be held vicariously liable for his negligence if they were also in breach of their own duty of care to the plaintiff. A minor cannot sue in his own right. Court approval is not necessary before proceedings are instituted, unless there is no legal guardian for the minor. The court must appoint one for proceedings to be commenced. Where the plaintiff or defendant is not mentally capable of conducting his own affairs, a controller of affairs will be appointed by the court under the mental health legislation.
JURISDICTION Place of domicile is defined as being the place where a person stays and lives without the intention of returning somewhere else.1 If the accident happened in Northern Ireland and the defendant is domiciled elsewhere, proceedings must be commenced in either the place of domicile of the defendant or the place of the accident. Under the applicable rules of private international law, the laws of the place of the accident must be used before Northern Irish courts, unless both parties are from there and live there, even if the accident happened in another country.
LIMITATION PERIODS The limitation period for cases of personal injury is three years running from the date of knowledge of the injury, which is generally the date of the accident. The limitation period can be interrupted by the death of the injured person before the expiration of the limitation period. The time limit for the causal action for the estate of the deceased is three years from the date of death or from the date of the personal representatives’ knowledge, whichever is later. The parties can extend the limitation period by consent if the defendant waives his right to rely upon it as a defence. The defendant may do so by either himself, or his insurers, expressly declaring to the plaintiff that they will not rely on the limitation period or, admit liability, that the dispute is only as to the quantum of damages to be awarded. There is no maximum to which the limitation period can be extended. The courts also have discretion to extend the limitation period and will do so if it appears equitable, having due regard to the degree to which the limitation prejudices the plaintiff or any person whom he represents. The decision of the court to extend the limitation period would prejudice the defendant or any person he represents. __________________________________________________________________________________________________________________________________________
1
Animus revertendi, Brussels Convention 1968. 116
Northern Ireland If the plaintiff is a minor or a mental patient, the limitation period will start from when the party either reaches the age of 18 or dies, whichever is earlier, or when mental capacity ceases, in the case of a mental patient.
FUNDING Legal aid There are a number of State and non-State schemes offering financial assistance with legal actions. Some solicitors are party of a fixed-fee interview scheme by which the client receives a 30 minute interview for a nominal flat fee.2 Information about this non-State scheme and a list of the solicitors participating in it is available from the Legal Aid Department of the Law Society of Northern Ireland and the Citizens Advice Bureaux. The State-run schemes available include a legal advice and assistance scheme, an assistance-by-way-of-representation scheme (ABWOR), and a civil legal aid scheme. Legal aid is not available for an action outside the jurisdiction. A foreigner who is resident elsewhere may qualify for legal aid for an action in Northern Ireland. The lawyer will receive a fixed amount of money for acting on the claimant’s behalf under the scheme. If he spends an exceptional amount of time on the case he is entitled to extra payment. The claimants may have to pay a contribution towards the costs in the legal advice and assistance scheme. Eligibility for the ABWOR scheme is based on income. Applications for the civil legal aid scheme must pass the financial eligibility and merits test of the Law Society’s Legal Aid Department. The legal aid board is entitled to recoup its expenses from the damages awarded to the plaintiff where the defendant loses the case but has insufficient means to pay.
Contingency fees The Code of Conduct (Law Society’s) prohibits lawyers from operating on a contingency fee basis. Conditional fee agreements are not available either. Lawyers have a fixed level of charges set by statute in the county court, but not in the High Court. Guidelines are laid down by local associations for charges for High Court actions.
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2
At the time of writing this fee was £5, including VAT. 117
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Legal expenses insurance Legal expenses insurance is being increasingly relied upon by litigating parties in this jurisdiction. Some home contents insurance policies offer assistance with legal expenses as well.
Trade unions Unions will sometimes assist a member in either bringing or defending an action, depending on union rules.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings To qualify for compensation the crime must be reported to the police within 48 hours of its occurrence, and the victim’s lawyer must serve a notice of intention to apply for compensation on the Secretary of State for Northern Ireland within 28 days. Within three months of the service of this notice of intention, the application for compensation must then be made. These time limits can be extended in extraordinary circumstances to a maximum of three years from the date of injury.3 The quantum of awards for compensation by the criminal courts are assessed on the same basis as the civil courts, ie the injury to the victim. The awarding of damages does not prevent a civil claim being made, but recovery would be subject to reimbursement.
Criminal investigation When a person is injured, the police are always called and will automatically start to investigate if it is a road traffic accidents. However, criminal proceedings are not automatically commenced. The police will only reconstruct an accident in exceptional circumstances, such as where the accident involved fatalities and causation could be made clear, or to obtain witnesses. The only other body which must be informed of an accident involving personal injuries is the Health and Safety Executive if the accident was work-related. Criminal proceedings do not interrupt the limitation period, and neither will prosecution in a foreign jurisdiction.
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3
Dickson, B, The Legal System of Northern Ireland, 2nd edn, 1989, p 137, Belfast, Northern Ireland: SLS Legal Publications (Northern Ireland). 118
Northern Ireland
Release of evidence The police will make their report available to the solicitor for a prospective plaintiff for a fee.4 The report will include all statements taken and a rough sketch of the accident. The report will be made available after criminal proceedings have been concluded, or the police have made a decision not to prosecute. A delay in the criminal proceedings can sometimes delay disclosure, but it generally takes three to six months to obtain police reports.
Use of evidence in civil proceedings A criminal conviction may be pleaded in the civil court. The effect will be to reverse the burden of proof, so that the defendant must prove, on the balance of probabilities, that the conviction was erroneous or is irrelevant to the civil proceedings, or deny the facts on which the criminal conviction was based. Foreign convictions may also be pleaded in the civil court.
THE LEGAL PROFESSION Lawyers in Northern Ireland advertise their services but do not have the right to call themselves specialists in the field of personal injury. Information about lawyers who specialise in personal injury can be obtained from the Law Society and the Association of Personal Injury Lawyers. Where a person is legally aided, there are no restrictions on choice of lawyer.
INSURANCE Insurance requirements Insurance is compulsory for road traffic accidents and employers’ liability.
The uninsured driver Where the defendant is in breach of any of the terms of his insurance policy, the plaintiff will still be paid by the insurer, which will then have a right of action for recovery against the defendant.
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4
At the time of writing the fee was £44. 119
Personal Injury: Practice and Procedure in Europe Whilst it is required by law that motor vehicle users and employers hold insurance in respect of their liabilities, there is no foolproof method of enforcement and thus some people avoid taking out insurance. In respect of road traffic accidents, the Motor Insurers’ Bureau may provide compensation to the plaintiff on formal notification of the claim by letter.
Insurer as party to proceedings Proceedings cannot be brought against the tortfeasor’s insurer directly. Formal notice must be given to the insurers before issuing proceedings to secure the insurance cover in road traffic accidents.
DAMAGES Heads of damage The heads of damages under which an injured person can recover include the following: • General damages. This includes pain, suffering and loss of amenity. The pain is that which is immediately felt upon the nerves and brain which is directly related to the accident or medical treatment. Suffering includes fright, fear of a future disability, humiliation, embarrassment and sickness. Loss of amenity includes injury to senses, sexual dysfunction, loss of enjoyment of work,5 loss of holiday,6 inability to care for an invalid or sick spouse, impairment of housekeeping ability or spouse’s loss of earnings.7 General damages also includes the physical injuries themselves. • Special damages. This includes past loss of earnings, fringe benefits and lost chances of promotion, loss of future earnings and loss of pension. It also includes handicap on the labour market.8 Damages are paid under this head for do-it-yourself loss, where the plaintiff undertook to decorate, maintain or renovate his house and must now employ others to do so. • Medical expenses privately incurred. • Property damage. • Other expenses incurred as a direct result of the accident. This includes travelling expenses to hospital and visits to the doctor, insurance excess and the cost of repairs to the car. __________________________________________________________________________________________________________________________________________
5 6 7 8
For example, where the plaintiff has to undertake work for which he is overqualified. Where the accident happened during a holiday period. Where the spouse gives up work to look after the plaintiff. Where the plaintiff has suffered a disability which restricts him in his choice of employment and consequently his earning capacity. 120
Northern Ireland
Interest Interest accrues on damages at the discretion of the court, from the date of issue of the proceedings.
Lump sum or periodic payments Damages may be awarded by way of a lump sum or periodic payments.
Provisional and interim payments The courts can award interim payments, and sometimes insurers will make an interim payment on a voluntary basis. Provisional damages are awarded where there is a risk of the plaintiff’s condition deteriorating some time in the future.
Bereavement damages Bereavement damages are available to the spouse of the deceased, or the parents if the deceased was a minor.9 The claim does not survive the death of the person entitled.
Level of damages There are no publications in Northern Ireland detailing and updating levels of damages.
Principles and guidelines The guiding principle for assessment of the quantum of damages to be awarded is restitutio in integrum, ie restoring the plaintiff to the position he would have been in had the injury not been sustained. The court in Northern Ireland will not award damages in a foreign currency.
Social security and employers’ payments State benefits paid as a consequence of the injury are recoupable. However, reimbursement will be made by the defendant’s insurer from the award directly to State organs, with only the net balance being paid over to the plaintiff. Employers have no statutory obligation to pay salary during incapacity, although such an obligation may exist in the contract of employment.
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9
A sum of £7,500 is awarded for death after March 1991; £3,500 is awarded if the death was earlier. 121
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PROCEDURE Commencing proceedings Service A claim is initiated by writing to the defendant and his insurers. The action is initiated by serving proceedings upon the defendant or solicitors who have been instructed by the defendant to receive it on his behalf. Service is carried out by the claimant’s solicitors. Where criminal proceedings are being considered or indeed being brought, it will not be possible to obtain copies of the police report until the criminal proceedings are concluded. In principle, a foreign lawyer may obtain details from the authorities investigating the accident, but for practical reasons it is advisable to instruct a local lawyer from the outset. Service of proceedings is by first class post for a claim in the county court, and first class post for a claim in the High Court. A writ must be served within 12 months of issue. If more than one person is responsible for the damage to the plaintiff, they can all be joined as defendants in the same action. The plaintiff may bring in a second defendant. The defendant may bring in a third party by issuing third party notice proceedings. If only one of more defendants appeal, in effect, the whole action is retried and not only the appellant’s liability.
Level of court Proceedings are commenced in either the county court or the High Court, depending on the value of the claim.10
Court management The legal system in Northern Ireland is adversarial in nature. The court does not usually give directions on how to proceed with a case. The plaintiff’s lawyer has control of proceedings and tends to dictate the pace. The average time from commencement of proceedings to the hearing is difficult to determine, and will depend on the complexity of the case and the injuries involved.
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10 Claims of £1,000–15,000 commence in the county court while claims of more than £15,000 commence in the High Court. 122
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Evidence It is unusual for the court to appoint experts, as the parties are generally responsible for collecting and presenting the evidence. Parties are compelled by rules of court to disclose their documentary evidence.11 Patients have a statutory right of access to their own medical records held in computerised form, or where records in other form were made after 30 May 1994, or where earlier records are necessary to make other records which have been released intelligible.12 Records may be released to the plaintiff’s solicitor. The court is empowered to grant orders for the release of medical records, but generally the courts prefer to view reports from consultants.
Witnesses Evidence is given orally, and all witnesses are required to attend court, save in exceptional circumstances such as serious illness when provision can be made to take evidence on commission. If the court does appoint an expert it will be in the plaintiff’s jurisdiction. Witnesses can be compelled to attend court by subpoena.
Settlement procedures The defendant may make a payment into court before a case is heard – a lodgement cost. Penalties are imposed if the court’s award does not exceed the lodgement.
ENFORCEMENT PROCEEDINGS It is up to the parties to seek enforcement of an award. Enforcement is likely to be a problem where the defendant is insolvent. Civil judgments of the county courts and High Court are enforced by the Enforcement of Judgments Office 13 The party seeking enforcement will place a request to the office to send the debtor a notice of intent to enforce, and requiring the debtor to satisfy the judgment within 10 days. If he fails to do so, the office will carry out enforcement by the seizure and sale of assets, or by the arrangement of payments directly from the debtor’s salary at source to the creditor. The rules for cross-border enforcement are governed primarily by international convention.14 Enforcement procedures are generally costly but are recoverable from the debtor. __________________________________________________________________________________________________________________________________________
11 For example, Order 25 regarding the disclosure of medical evidence and Order 38 regarding the disclosure of engineers’ photographs and plans. 12 Data Protection Act 1984 and Access to Health Records (NI) Order 1993. 13 This is a branch of the Northern Ireland Court Service. 14 Title III, Arts 25–49 of both the Brussels (1968) and Lugano (1988) Conventions. 123
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COSTS The costs of the winning party are usually paid by the losing party in both out-of-court settlements and court awards. If both a foreign and local lawyer have been involved representing the winning party, it is likely the costs of both will be recovered, subject to the fixed costs.
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CHAPTER THIRTEEN
RUSSIA
LIABILITY Generally speaking, Russian civil law is primarily fault-based. The standard of care varies, depending on what is considered reasonable behaviour of the parties under the circumstances. The burden of proof is placed on the plaintiff in civil cases and on the State in criminal ones. The situation is the same for cases of employers’ liability, medical negligence, product liability, occupiers’ liability, accidents caused by animals, environmental incidents, train accidents, aeroplane crashes and fatal accidents. In road traffic accidents, however, the onus is on the defendant to rebut the presumption of negligence by proving that the victim contributed to the accident either intentionally or negligently.
DEFENCES Defences may either reduce compensation or oust the plaintiff’s claim entirely. A plaintiff can be found to be 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY If the defendant is a minor, he is liable from 15 years of age. If he has no property with which to offer compensation to the plaintiff, his parents will be liable. Plaintiffs who are minors cannot sue in their own right. The court will appoint a representative which is, in most cases, the parents of the minor. When a party is mentally incapacitated, a trustee will be appointed.
JURISDICTION Civil proceedings will be commenced at the place of domicile of the defendant. The place of domicile of a company is its registered location which is indicated in the founding documents. The place of domicile of a person is the place of his residency. Russian law recognises the law of permanent residence. Article 20 of the Civil Code defines the place of residence of an individual as the place where he resides permanently or spends most of his time. 125
Personal Injury: Practice and Procedure in Europe An action for damages can be commenced at the place of domicile of the defendant or the place of the accident. Under the Civil Procedural Code 1964, Art 118, this cognisance is determined by the preference of the plaintiff. If an action is brought in one court, either party can ask that the proceedings be transferred to another court. According to Russian private international law, the law of the place of the accident must be used before Russian courts unless both parties are Russian and live in Russia, even though the accident happened in another country.
LIMITATION PERIODS The Civil Code 1994 and other legislative acts set out the limitation periods for specific categories of personal injury.1 Limitation periods vary according to the relevant legislation. The general limitation period is three years, and cannot be extended in cases of personal injury. The limitation periods start to run from the date of knowledge of the injury, which is generally the date of the accident. Only forces majeure can interrupt the limitation period. The parties cannot extend the limitation period by consent. The courts may extend a limitation period which has been violated because of reasonable excuse. There are no special rules where the plaintiff is a minor or a mental patient.
FUNDING Legal aid State legal aid may be obtained only for employees who are members of trade unions. In practice, most legal services are paid for, even if they are performed by State owned legal firms (of which there is only a small number). State law firms charge less than the fees determined by private law firms. Most civil law services are provided for a fixed fee, while the criminal law services may be conducted free of charge, if they are performed by the militia (police) or Prokuratura (Prosecutor’s office).
Contingency fees Russian lawyers sometimes operate on a contingency fee basis. There is usually no fixed level of charges; it is left up to the lawyer to calculate his charges. However, the rates of State owned legal firms are fixed. Most legal firms do have established hourly rates for the performance of certain legal services. The lawyer calculates the charges based on the rates established by the firm for an hour of services rendered to the client. __________________________________________________________________________________________________________________________________________
1
Article 208 of the Civil Code, and legislative acts such as the law on Protection of Consumers’ Rights, the rules on Compensation to Employees by Employers, the law On the Protections of the Environment, and the Decree of the Supreme Soviet of the USSR, 18 May 1981, which deals with personal injury caused by the acts of State authorities. 126
Russia
Legal expenses insurance The unions never assist members in either bringing or defending an action.
Trade unions There is no legal expenses insurance in Russia. Home contents insurance policies do not include a provision for this either.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings Russian criminal courts are empowered to award orders for compensation to the plaintiff on the submission of a formal claim. If damages are awarded by the criminal court, it prevents a civil claim being made at all. The criteria for assessing damages are the same as for civil awards. If the defendant is unable to pay, the State will not pay compensation to the victim.
Criminal investigation When a person is injured, the police are always called and they automatically start to investigate. Criminal proceedings are instituted on request of the victim or the police on the basis that a crime was committed. The police may reconstruct an incident to assist them in their investigation. Criminal proceedings will not interrupt the civil limitation period but can be found to be a reasonable excuse for exceeding it. Similarly, prosecution in a foreign jurisdiction will not interrupt the limitation period.
Release of evidence The prosecution or police make evidence available to the plaintiff’s lawyer on formal request. There is no fee for this. As a rule, the police are not keen to release evidence until the investigation is over. It usually takes up to several months to obtain police reports.
Use of evidence in civil proceedings Conviction or acquittal is important in subsequent civil proceedings. In general, criminal conviction may be pleaded in a civil court. In practice, however, this is very rare. Foreign convictions cannot be pleaded.
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Criminal injuries compensation scheme There is no existing body in Russia that serves an equivalent function to a criminal injuries compensation board.
THE LEGAL PROFESSION Lawyers do have rights of audience in Russian courts all over the country, although there is a slight difference between an advocate (an Attorney) and a lawyer. Both the lawyer and the advocate have the right to represent clients in court, but it should be taken into consideration that the role of a lawyer is to assist his client in court as a person possessing legal knowledge, whereas the advocate has the right to represent his client’s interests in court. Lawyers do not call themselves specialists in the field of personal injury, nor is there an equivalent to an association of personal injury lawyers. They may advertise their services. Information about personal injury lawyers is best obtained from personal contacts or advertisements. Where a person is legally aided there is no choice of lawyer. Lawyers cannot refuse to act under the legal aid scheme, so the court does not have to appoint them ex officio.
INSURANCE Insurance requirements In general there is no compulsory insurance in Russia.
The uninsured driver Where a defendant is in breach of the terms of his insurance policy, the insurance company will not pay the plaintiff. Where a driver is uninsured there is no government body which will adopt the claim.
Insurer as party to proceedings It is not possible to bring proceedings directly against the insurance company rather than the tortfeasor. There is no need to inform insurers before bringing proceedings.
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DAMAGES Heads of damage The Civil Code provides that compensation must include: • salary or other lost income of the plaintiff; and • expenses incurred as a result of the injury. This includes medical services, additional food, medication, specialised transport and requalifying for a different profession.2 The rules of medico-legal examination on the degree of seriousness of physical injury adopted by Order of the Ministry of Health of the USSR, dated 11 December 1978, No 1208, stipulate that there are three levels of general injury: 1 serious physical injury; 2 less serious physical injury; and 3 minor physical injury. Minor physical injury is divided into two categories: minor physical injury resulting in short-term health disorders or an insignificant permanent loss of work capacity; and minor physical injury that does not result in such circumstances.
Interest No interest accrues on awards of damages. The judgment is taken as indicating the concrete sum of the damage sustained. Interest is used only to adjust for inflation.
Lump sum or periodic payments No information is available at the time of writing.
Provisional and interim payments Interim payments are ordered by the court where a claim will take some time to finalise and the plaintiff is in desperate, immediate need of some money.3
Punitive damages Punitive damages are not identified as such, but can be awarded in effect where a defendant is ordered to pay compensation in excess of the actual loss sustained by the plaintiff.4 __________________________________________________________________________________________________________________________________________
2 3 4
Article 1085 of the Civil Code (Part II). Article 1092, s 2. Article 1064, s 3. 129
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Bereavement damages No information was available at the time of writing.
Level of damages Publications of Russian court practice set out details of levels of damages to be followed by the courts.
Principles and guidelines There are no provisions expressing allowing or prohibiting awards of damages in a foreign currency. It may be possible where the injured party is a foreign citizen and he requires medical treatment in a foreign country.
Social security and employers’ payments Benefits from the State are not deducted from a plaintiff’s award of damages. Employers’ compensation is very new and statutory obligation to pay salary during incapacity is yet untried.
PROCEDURE Commencing proceedings Service A claim is initiated by writing to the court. Usually, Russian lawyers, especially members of the Bar (advocates), are entitled to request documents. Foreign lawyers are entitled to request information or documents, but obtaining them is greatly facilitated by the involvement of a local lawyer. Local rules for the service of proceedings are that an application to the court must be submitted. The copy of the application must go to the defendant, and court duties must be paid. The only time limits are the limitation periods which must be complied with. The rules of cross-border service are unclear. If more than one person is responsible for the injury they can all be joined in the same action. It is possible for the defendant to bring in a third party by declaring it in the trial. The plaintiff can bring in a second defendant. If one defendant of more appeals, the whole action will be retried regardless of the number of defendants.
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Level of court Usually, proceedings are commenced at the lowest level – the district courts. The importance of the case and the value of the claim are criteria for proceeding in a court at a higher level.
Court management The average time from the commencement of proceedings to the court hearing varies from case to case. It may be several months, or even years. In criminal cases, before the case goes to court, the procurator controls the case. In civil cases the court controls the case.
Evidence The Russian legal system combines elements of both adversarial and inquisitorial procedures. Despite the fact that the parties are expected to present their own arguments and evidence, the judge will actively investigate the circumstances of the case as well. The parties in civil law cases, and the State in criminal cases, are responsible for obtaining evidence. The court normally listens to both sides and then refers to his own evidence before reaching a decision. Patients have no statutory right to medical records, but they may sometimes be made available to the patient at the doctor’s discretion. Doctors are obliged, however, to release records on the request to the patient’s lawyers, and particularly courts and police.
Witnesses Experts are independent, instructed by either the parties or the court. The court cannot appoint an expert from a foreign jurisdiction. Sworn depositions are unknown in Russia, so witnesses must attend in person. Usually witnesses and experts are called to give oral evidence. Sometimes, but very rarely, written documents will be used. Witnesses are obliged to attend court to give evidence, enforced by a court-issued subpoena.
Settlement procedures Although payments into court are used in other civil proceedings, there are no provisions for a defendant to make a payment into court in an action for personal
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ENFORCEMENT PROCEEDINGS The enforcement of a judgment is by use of an enforcement paper which is sent to the defendant’s home, work or bank. It is not costly to seek enforcement. It is left up to the plaintiff, but occasionally it is done by the court. Enforcement is likely to be a problem where the defendant has no assets. Cross-border enforcement is subject to complicated rules and remains largely untried, although some bilateral treaties exist with former socialist countries.5
COSTS Whether costs will be recovered from the losing party will depend on the terms of the settlement or judgment. The court usually orders the loser to pay all the winner’s costs.
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5
For example, Finland, Italy, Iraq and Egypt. 132
CHAPTER FOURTEEN
SCOTLAND
LIABILITY Generally speaking, liability for personal injuries in Scotland is fault-based with a standard of care based on reasonableness. Particular types of harm include the following characteristics: • Road traffic accidents are governed by a scheme of fault-based liability. If police proceedings have been initiated, the burden of liability is beyond doubt. • Employer’s liability is fault-based. An employer owes a common law duty to his employees to take reasonable care for their safety. • Under the National Health Service the regime of liability in cases of medical negligence is based on fault. The onus is on the pursuer to prove that the medical practitioner acted outside normal medical practice. • Product liability is governed by a limited form of strict liability, subject to some defences.1 • Occupier’s liability is governed by a fault-based regime based on reasonableness under statute2 and common law. • Accidents caused by animals are subject to strict liability in some cases and fault in others.3 • Environmental accidents are governed by a regime of fault-based liability. • In cases of train accidents the pursuer must prove fault and negligence. • Aeroplane accidents are governed by the Civil Aviation Act 1949.
DEFENCES Defences include failure to establish causation, sole fault, novus actus interveniens, failure to establish foreseeability, failure to establish negligence and volenti non fit injuria. Contributory negligence acts as a partial defence, reducing the amount of compensation payable by the defender, while the other defences are complete ones __________________________________________________________________________________________________________________________________________
1 2 3
For further details see Marshall, EA, General Principles of Scots Law, 5th edn, 1991, pp 490–91, Edinburgh: W Green/Sweet and Maxwell. Section 1 of the Occupiers’ Liability (Scotland) Act 1960 provides that the standard of care owed is ‘such care as in all the circumstances of the case is reasonable’. The Animals (Scotland) Act 1987, for example, imposes strict liability and provides in s 1(1) that, if an animal belongs to a species which is likely to cause injury, the keeper of the animal will be liable for any damage it causes. 133
Personal Injury: Practice and Procedure in Europe which exonerate the defendant from liability. In theory a pursuer can be held 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY Defenders who are minors can be held liable at any age but in limited circumstances. If the minor cannot be held liable, his parents may be held liable. Minors must be sued with the consent and concurrence of their curators. Pupils cannot be sued, but their tutors at law can. Pursuers who are minors can sue with the consent and concurrence of their curators. Pupils cannot sue at all, but must sue through tutors at law. A curator bonis will be appointed on a party’s behalf where the party is not mentally capable of conducting his own affairs. The court can alternatively appoint a curator ad litem to act on behalf of a person during a particular legal action.
JURISDICTION Domicile is treated as being the place in which the defender has his ‘seat’. If the accident happened in Scotland but the defender is domiciled elsewhere, proceedings must be commenced in either the place of the accident or the place of domicile of the defender.4 The location of witnesses and the convenience of the parties may also be taken into consideration. If proceedings are brought at the place of domicile of the defender which is different to the place of the accident, the court will apply the law of the place of the accident. The only exception will be where both parties are Scottish and live in Scotland. The defender may apply to have the proceedings transferred to another jurisdiction on the grounds of forum non conveniens. The pursuer may also apply if, having commenced his proceedings, he finds that it is more convenient that they be transferred elsewhere.
LIMITATION PERIODS The limitation period in Scotland is three years for most injuries, running from the date of the accident.5 If the date of knowledge of injury or identity of the person responsible is later, the limitation period will run from that point, or the date at which the court determines it would have been reasonable for him to become aware of it.6 In fatal __________________________________________________________________________________________________________________________________________
4 5 6
The Civil Jurisdiction Act 1982 indicates that domicile is the primary source of jurisdiction, but the place in which the delict occurred is given as a special ground of jurisdiction. Prescription and Limitation (Scotland) Act 1973, as amended by s 2 of the Prescription and Limitation (Scotland) Act 1984. Section 17(1) and (2), as amended by s 27 of the Prescription and Limitation (Scotland) Act 1984. 134
Scotland accident cases the relevant date is the date of death.7 In the case of disease it runs from the date of knowledge or occupation cause. Where, due to the expiry of the limitation period, an action is time barred, the court has the discretion to allow an action to be brought if it seems equitable to do so.8 The limitation periods under the Merchant Shipping Act 1894 and Civil Aviation Act 1982 are two years. The limitation period may be interrupted only by agreement between the parties. There is, theoretically, no overall maximum to which it can be extended. The courts also have discretion to extend the limitation period where it appears equitable to allow an action to proceed.9 Where the pursuer is a minor, the limitation period will start either from when he reaches the age of 18 or dies, whichever is earlier. In respect of mental patients it starts when mental incapacity ceases.
FUNDING Legal aid Legal aid cannot be obtained for an action outside the jurisdiction. A foreigner who is not resident in the jurisdiction cannot qualify for legal aid. Probable success of the action and means of the applicant are the criteria used to determine eligibility for legal aid. The Legal Aid Board will fund a cause of action to no overall limit. The claimant may have to contribute to costs, depending on his means. Where the claimant is successful, the board has a right of redress for costs from the defender. Where the defender has insufficient means to pay, costs will be reimbursed to the board from the damages awarded to the pursuer.
Contingency fees Lawyers operate on a contingency fee basis. No fee is payable where the action fails. If the plaintiff wins, his lawyer will recover expenses on the party and party basis, and may recover additional expenses (costs) if he has entered into a special-fee-charging arrangement. Lawyers may also have a fixed level of charges calculated on an hourly or block basis. __________________________________________________________________________________________________________________________________________
7 8 9
Section 18. Section 19A, inserted by the s 23(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980. Section 33(3) of the Limitation Act 1980 lists some of the matters which should be taken into account by the court in exercising its discretion: eg the length of and the reasons for the delay on the part of the plaintiff, and the extent to which having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff for the defendant is or is likely to be less cogent than if the action had been brought in time. See Nelson-Jones, R and Burton, F, Personal Injury Limitation Law, 1994, pp 74–75, London: Butterworths. 135
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Legal expenses insurance Pursuers may be supported by legal expense insurance; however it is not as yet widely used. Some home contents insurance policies also provide for legal assistance.
Trade unions A union will assist a member in either bringing or defending an action if an accident or disease is caused by work, and also in road traffic cases.
CRIMINAL PROCEEDINGS Civil damages in criminal proceeding Scottish criminal courts are empowered to award compensation for personal injuries. No formal application by the victim is required. The awarding of damages by the criminal court does not prevent a subsequent civil claim being made. The criteria differ from the assessment of a civil award in that they are tariff based.
Criminal investigation When a person is injured, the police are not always called and will therefore not automatically start to investigate or commence criminal proceedings. Proceedings are instituted by the Procurator Fiscal. He is independent from the police and can receive reports from bodies such as the Health and Safety Executive or HM Customs and Excise. If he considers that a criminal offence has taken place he will institute proceedings. In some cases the police will reconstruct an incident, particularly if it is a road traffic accident. Local or foreign criminal proceedings do not interrupt the limitation period of civil proceedings. When a person is injured, official reporting bodies should be notified. This may, for example, be the Health and Safety Inspectorate in respect of accidents at work. The position is less clear for other types of injury.
Release of evidence For civil proceedings, police statements, reports and photographs may be obtained by the pursuer’s solicitors, but not with experts’ reports unless such disclosure is deemed to be in the public interest. Experts’ reports will be made available by formal request for a fee.10 The evidence _________________________________________________________________________________________________________________________________________
10 These are approximately £40 per statement. 136
Scotland will be released after the conclusion of the criminal proceedings. It takes approximately one month for them to be released.
Use of evidence in civil proceedings Only some criminal convictions can be pleaded in the civil courts. For example, convictions under the Road Traffic Act 1988 can be, while convictions under the Health and Safety at Work Act 1974 cannot. Such evidence does not, of itself, establish liability but can be of persuasive significance. Some foreign convictions may also be pleaded.
Criminal injuries compensation scheme If a defender is unable to pay, the State will pay compensation through the Criminal Injuries Compensation Board. The board does not have redress against the pursuer. The board will investigate a case directly and through its lawyers, and retain the right to nominate the victim’s lawyer.
THE LEGAL PROFESSION Scottish lawyers have the right to call themselves specialists in the field of personal injury. There is an Association of Personal Injury Lawyers. They may advertise their services. Information about lawyers who specialise in personal injury may also be obtained from the Law Society of Scotland, the Citizens’ Advice Bureaux and various consumer organisations. Lawyers do not have a right of audience in the courts of first instance all over Scotland. Solicitors appear in the sheriff’s court where they have a right of audience as opposed to advocates. The Court of session is the Supreme Court and, until recently, the right of audience was confined to advocates. However, over the last three years, rights of audience have been extended to solicitor advocates who have undertaken a course of study and passed the appropriate examination. They are almost exclusively based in Edinburgh or Glasgow as the Court of Session is based in Edinburgh and does not go on circuit. Solicitors have recently been granted rights of audience in the Supreme Courts which were previously exercised only by advocates. Where a person is legally aided, there is in theory, no restriction on choice of lawyer. In practice, however, there are lawyers who do not undertake legal aid work. There is no franchising as such, and if a person qualifies for legal aid on grounds of income and probabilis causa, he may select a solicitor of his choice.
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INSURANCE Insurance requirements Insurance is compulsory for all public and employment activities and road traffic liability. Policies may limit the claim to an upper maximum for individual claims.
The uninsured driver A person could avoid taking out insurance by failing to make premium payments. If the insured is in breach of the terms of his insurance agreement, the plaintiff will not recover from the defendant’s insurer. The Motor Insurers’ Bureau will adopt the claim in such a case to provide the plaintiff with compensation on application by the plaintiff.
Insurer as party to proceedings Proceedings cannot be brought directly against the defendant’s insurer unless there is a special agreement substituting the insurance company for the defender. Normally, proceedings should be brought against the tortfeasor himself. In road traffic accidents, notice should be given to the insurer before, or upon issuing, proceedings in order to secure insurance cover.
DAMAGES Heads of damage The heads under which a plaintiff can recover damages include: • Solatium. This includes pain and suffering, loss of amenity and reduced life expectancy. • General damages. This includes the pain felt upon the actual nerves and brain which is not directly related to the accident or resulting from medical treatment. Suffering includes fright, fear of a future disability, humiliation, embarrassment and sickness. Loss of amenity includes injury to any senses, sexual dysfunction, loss of enjoyment of work,11 loss of holiday,12 inability to care for invalid or sick spouse, impairment of housekeeping ability and spouse’s loss of earnings.13 • Physical injury. __________________________________________________________________________________________________________________________________________
11 For example, where the plaintiff has to undertake work for which he is overqualified. 12 Where the accident has happened during a holiday. 13 Where the spouse has to give up work to care for plaintiff and family. 138
Scotland • •
Psychiatric damage. Special damages. This includes past loss of earnings and fringe benefits and lost chances of promotion, loss of future earnings, loss of pension, handicap on the labour market14 and claims for do-it-yourself loss.15 • Medical expenses privately incurred. This includes costs of medical care and the cost of acquiring, altering and adapting alternative accommodation. • Damage to property. • Other expenses incurred as a direct result of the accident.16 There is no claim allowed for loss of congenial employment.
Interest Interest accrues from the date of the accident.
Lump sum or periodic payments Damages are awarded by either a lump sum or periodic payments.
Provisional and interim payments Where the claim will take some time to finalise, the courts will award interim payments where the pursuer can show he is likely to succeed in his claim on the merits of the case. Insurers are likely to make interim payments on a voluntary basis. Where there is a real risk of the pursuer developing a side effect or deterioration in condition at some point in the future, the court will award provisional damages.
Punitive damages The courts do not usually award punitive damages.
Bereavement damages Bereavement damages are available to all relatives for the loss of the deceased’s society and loss of financial support, as well as funeral expenses and personal services.17
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14 Where the plaintiff is restricted due to his injuries as to choice of job. 15 Where the injured person before the accident undertook to decorate, maintain or renovate his house, and after the accident has to employ others to do so. 16 For example, travelling expenses to the hospital, doctor’s office, insurance excess and cost of car repairs. 17 Damages (Scotland) Act 1976, as amended by s 1 of the Administration of Justice Act 1982. 139
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Level of damages Publications are available which detail and update levels of damages.18 With small claims19 it may not be worth pursuing a case in which the expected damages are less than the costs of bringing proceedings, especially where both a foreign and local solicitor have been involved.
Principles and guidelines The aim of damages for personal injury is to make good in terms of money the ‘loss (damnum) caused (datum) by a legal wrong (injuria)’.20 The courts cannot award damages in a foreign currency.
Social security and employers’ payments State benefits received by the plaintiff are credited against the award of damages to the pursuer to prevent double compensation. Social services has a right of priority over the pursuer’s damages for its outlays. Deductions of State benefits are made from the damages awarded for loss of earnings.21 Public health care is also set off.22 In fatal accident cases, no account is taken of State and other payments to dependants of the deceased.23 Employers do not have a statutory obligation to pay salary during incapacity.
PROCEDURE Commencing proceedings Service A claim is initiated by writing to the defender to obtain details of his insurers, and then by writing to his insurers themselves. The action is initiated by writ served upon the __________________________________________________________________________________________________________________________________________
18 For example, Scots Law Times, Greens Weekly Digest, Paton, McKewan, etc. 19 Those valued at under £750. 20 Gloag, WM and Henderson, RC, Introduction to the Law of Scotland, 9th edn, 1987, p 539, Edinburgh: W Green and Son Ltd. 21 Section 2(1) of the Law Reform (Personal Injuries) Act 1948 provides that ‘one-half of the value of rights accruing in respect of sickness invalidity, injury or disablement benefit, non-contributory invalidity pension and severe disablement allowance for the five years beginning with the time when the cause of action accrued’ should be deducted from loss of earnings. 22 Section 11 of the Administration of Justice Act 1982. 23 Section 2.1(5) of the Damages (Scotland) Act 1976. 140
Scotland defender or his solicitors. Service is carried out either by the court or by the pursuer’s solicitors. Where police proceedings are being contemplated or brought, it is not possible to obtain copies of the police report until any such proceedings are concluded. In principle, a foreign lawyer may obtain details from the authorities investigating the accident. For practical reasons, however, it is advisable to instruct a local lawyer from the outset. Service must be effected upon the defendants by post or personally, unless the defendant has no known address. Normally it is carried out by recorded delivery. If recorded delivery service is unsuccessful, then personal service is instructed by using a Sheriff Officer who is an independent official, but who is empowered to serve writs. If the defender is based outside of Scotland, recorded delivery service will be attempted first, and then a process server will be instructed should that be necessary. Cross-border service is governed by the Brussels Convention 1968 and the Hague Convention 1965.24 The time limits to comply with include service within the three year period of the triennium. If more than one person is responsible for the damage to the plaintiff, they can all be joined as defendants in the same action. A defender may bring in third party by third party procedure and a formal notice of a document setting out the reasons for introducing the third party to the proceedings. The pursuer can bring in a second defendant, especially in cases of vicarious liability in the employment setting. If one of several defendants appeal, only his liability will be retried. Only matters which are specific issues will be raised at appeal.
Level of court Actions for any value of claim can be commenced in either the Sheriff Court or the Court of Session. There is no upper or lower limit. If, however, an action for a relatively small amount of damages is raised in the Court of Session, or if the ultimate award is relatively small, the Court of Session may well limit the expenses of the pursuer to the appropriate Sheriff Court scale.
Court management The court will not give directions as to how to proceed with the case. The average time from the commencement of proceedings to the court hearing is nine to 18 months.
Evidence The Scottish legal system is adversarial in nature with each party instructing his own __________________________________________________________________________________________________________________________________________
24 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965. 141
Personal Injury: Practice and Procedure in Europe experts. Evidence is given mainly orally. Patients have a statutory right to see medical records and details of treatment given.25 Records may also be released to someone authorised by the patient to receive them. Courts may also authorise the release of a patient’s medical records if good cause can be shown.
Witnesses Witnesses can be compelled to attend court to give evidence by citation and, if necessary, letters of second diligence or warrant of arrest. A party can be compelled to disclose evidence under the optional procedure for documentary evidence. For witness statements, the parties cannot be compelled at all. It is possible to submit sworn depositions from witnesses to reside outside the jurisdiction.
Settlement procedures Defenders do not make payments into court in Scotland. Sometimes, the defender will prepare a formal written tender of a particular sum which must include expenses to that date. The tender is intimated to the pursuer and lodged with the court, although the judge does not see it until after he has made his determination. By lodging the tender, the defender puts pressure on the pursuer to consider his position, as in the event of the court subsequently awarding the tendered amount or less to the pursuer. The pursuer will then be responsible for the costs of both parties from the date at which the tender was made.
ENFORCEMENT PROCEEDINGS Once the court has issued a judgment it does so in the form of a decree. The decree is then extracted from the court once the time for lodging appeal has passed. If the defender has not paid in accordance with the decree, then the Sheriff Officers are instructed to serve a charge of payment on the defender, which is a formal demand for payment of the principal sum, interest and costs. The charge of payment calls upon the defender to make payment within 14 days and, on the expiry of that period, the pursuer can instruct the Sheriff Officers to proceed with a poinding (attachment) of the defender’s goods, and proceed with a sale by warrant of the court of those goods. It is also possible, on the expiry of the 14 day period, to arrest in the hands of a third party any sums due to the defender. Arrestments can be in the hands of an employer or a banker or a person with whom the defender traded and who might, therefore, be __________________________________________________________________________________________________________________________________________
25 Access to Health Records Act 1991 applies for records compiled after 1991. Computerised records prior to this date are made available to patients under the Data Protection Act 1987. For further details, see Brazier, M, Medicine, Patients and the Law, 1992, pp 63–64, London: Penguin Books. 142
Scotland arresting owing to the defender at the time of the arrestment. Finally, if the decree was against an individual, the expiry of the 14 day period after the charge of payment could permit the pursuer to apply for the sequestration (bankruptcy) of the defender. It can be costly to seek enforcement, and tends to be cumbersome and slow. It is up to the parties to seek enforcement. Enforcement is likely to be a problem where the defendant cannot be found, has no assets or is uninsured. Interim orders may also be enforced. Cross-border enforcement is governed by reciprocal enforcement orders operating between jurisdictions.
COSTS If the court awards the tendered amount or less to the pursuer, the pursuer will then be responsible for the costs of both parties from the date at which the tender was made. The court usually orders the loser to pay the winner’s costs. Only those costs deemed necessary for the proper conduct of the case will be recovered form the losing party. Where both a foreign and local lawyer have been involved, it is likely that the costs of both will be recovered.
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CHAPTER FIFTEEN
SPAIN
LIABILITY Personal injury law in Spain has been subject to a great many changes in the past five years, particularly in the area of road traffic accidents. The modifications relating to road traffic accidents were only one of a series of measures implementing EU Directives relating to general insurance law in Spain.1 It is only now that the first effects of these changes are being felt, and it will take some time before a full assessment of these changes can be made. The standard of care owed is generally that of pater bonus familias.2 Particular types of harm include the following basic characteristics: • Since 9 November 1995, road traffic accidents have been subject to a compulsory tariff scheme3 which imposes a cap on the damages recoverable.4 Judges cannot award a sum of damages above that set amount. Damages will also be awarded under the ‘no-fault’ scheme up to the limits of compulsory insurance, but then may be reduced for contributory negligence. • In cases of employer’s liability, medical negligence and occupier’s liability,5 both fault and causation must be proved. • The legislative response to the cooking oil disaster in 19806 was a statute enacted in 1985 which was confusing and conflicted with the EC Directive on Product Liability. This was modified by a new Act in 1994.7 • Environmental accidents8 and train accidents9 are governed by a regime of strict liability. Aircraft passengers are also covered by compulsory insurance under a strict liability regime.10 In general, fare-paying passengers injured in public fare-paying __________________________________________________________________________________________________________________________________________
1 2
De Ordenacion Y Supervision De Los Seguros Privados, Ley 30/1995, de 8 Noviembria. Article 1902 of the Spanish Civil Code provides that ‘a person who, by act or omission, causes damage to another by fault or negligence must repair the damage caused’. 3 Disposicion adicional octava, Modificaciones en la de Usoy Circulacion de Vehiculos de Motor. 4 56 million pesetas. 5 Articles 1907–10 of the Spanish Civil Code. 6 This litigation continues at present with over 25,000 claimants. 7 De Responabilidad Civil Por Los Danos Causados Por Productos Defectuosos, Ley 22/1994, de 6 De Julio. 8 Liability for environmental accidents are covered by Civil Liability Insurance for Environmental Mishaps, Royal Decree Law 833/88, dated 20 July, which regulates the application of Law 20/1986 regarding toxic and dangerous waste. 9 Train passengers are covered by Passengers’ Compulsory Insurance, regulated by Royal Decree Law (1575/1989, dated 22 December). 10 Air Traffic Law 48/1960, dated 20 July. 145
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•
transportation accidents are covered by compulsory insurance which compensates on a no-fault basis, regardless of liability.11 Accidents caused by animals are subject to rules of strict liability which cease ‘only where the damage is caused by force majeure or the fault of the person that sustained it’.12
DEFENCES General defences which may be raised by the defendant include volenti non fit injuria, contributory negligence and the intervening act of a third party. Normally, the amount of compensation is reduced, but occasionally the claim may be ousted completely. There have been cases in which claimants have been held to be 100% contributorily negligent.
PERSONS UNDER A DISABILITY The legal age of majority in Spain is 18 in respect of criminal and civil matters. However, both are currently under review. The parents and tutors of minors may be held vicariously liable for their acts and omissions.13 In cases relating to infants court approval is necessary, but in certain cases the public prosecutor will be asked to represent the interests of a minor or incapacitated person.
JURISDICTION If the accident occurred in Spain and the defendant is domiciled elsewhere, proceedings must be commenced in either the place of the accident or the domicile of the defendant.14 Being a signatory to the Brussels Convention,15 place of domicile is considered to be where a person is registered for the census. __________________________________________________________________________________________________________________________________________
11 Seguro obligatorio de viajeros. 12 Article 1905 of the Spanish Civil Code. 13 Article 1903 of the Spanish Civil Code, as amended by Law 11/1981 of 13 May, and Law 1/1991 of 7 January, provides: ‘The obligation imposed ... is demandable not only for personal acts or omissions, but also for those of persons for whom others must respond. Parents are responsible for the damage caused by their children who are under their guard. Tutors are liable for the damage caused by minors or incapacitated persons under their authority who live with them. ... The liability referred to in this article shall cease when the persons mentioned in it prove that they employed all the diligence of a prudent administrator to prevent the damage.’ 14 Spain has ratified the Lugano Convention. This rule will apply where the country in question is also a signatory to the convention. 15 European Community Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention) 1968. 146
Spain If proceedings are brought at the place of domicile of the defendant which is different to the place of the accident, the court will choose which law to apply in accordance with the law of the forum and the rules of private international law. In most motor vehicle accidents, however, the Hague Convention will apply.
LIMITATION PERIODS The Spanish Civil Code stipulates that the claim has to be made within the relevant time limit.16 The limitation period for civil proceedings is one year in tort, running from either the date of the accident, the termination of criminal proceedings or from the date of consolidation of the claimant’s injuries, whichever is the latest.17 The limitation period for aeroplane accidents is two years under the Warsaw Convention, but the domestic statute of limitation on payment of indemnities regarding aviation accidents expires six months after the date of the accident. The time limit for medical negligence is one year for civil actions and five years for criminal prosecutions. In cases of product liability the time limit is three years from the time of the damage sustained, providing the claimant knows who is responsible for causing the damage. The plaintiff can extend the limitation period by one year by submitting a claim to the defendant. The plaintiff must be able to prove receipt of the claim by the defendant, and since some important information must be included in the claim it is advisable to consult a Spanish lawyer.
FUNDING Legal aid Spain has a legal aid system. A claimant must prove he has insufficient revenue to find the case and has no choice of lawyer. Legal aid cannot be obtained for an action outside the country of Spain. It is available for use in another region of Spain, however, which may be a different legal jurisdiction. Foreigners who are not resident in Spain can qualify for legal aid. The upper limit to which the legal aid board will fund is flexible in most circumstances, so that legal representation will continue until the conclusion of the case, so long as the claim is a valid one.
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16 Article 1973. 17 Sub-art 9, Art 76 of Ley de Contrator de Seguros. 147
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Contingency fees Lawyers’ charges vary according to the scales of charges issued by each regional Bar association.
Legal expenses insurance Legal expenses insurance is popular; some home contents insurance policies offer assistance.
Trade unions Trade unions will usually assist a member in bringing or defending an action.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings Civil proceedings cannot begin until the conclusion of any criminal proceedings. Civil liability is automatically taken into consideration by the criminal court. The claimant has the alternative of opting out of the criminal proceedings to have his claim for civil damages evaluated by the civil court. As the damages awarded will be the same, one type of proceedings is not preferable over the other. In order to participate in the criminal proceedings, the claimant is generally invited formally by the judge.18 Although a formal claim should be submitted by the claimant, Article 112 of the Law of Criminal Procedure allows the prosecution to take place by default. By not participating in the criminal proceedings, the claimant risks receiving a sum of compensation lower than the true value of his case by depriving the judge of the opportunity to make accurate compensation, and the matter would be considered res judicata. This only occurs where the prosecutor considers the case a crime as opposed to a misdemeanour. It is, therefore, very important for a claimant to participate in the criminal proceedings. If the prosecution is unsuccessful and civil damages are consequently not awarded, the claimant can still take up the civil option.19 Where the criminal court is considering both civil and criminal liability, the prosecutor protects the plaintiff’s interests.
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18 Article 109 of the Law of Criminal Procedure. 19 Article 1092 of the Spanish Civil Code states that ‘Civil obligations arising from offences or infringements of the criminal law shall be governed by the provisions of the Criminal Code.’ Article 19 of the Spanish Penal Code also stipulates that ‘any person who is found criminally responsible for a crime or a misdemeanour is also civilly responsible’. 148
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Criminal investigation Criminal proceedings are instigated by the police, who usually start investigating an accident automatically where a person has been injured. If the claimant is in the hospital, the hospital will send a medical report to the court. These two reports are an essential part of the inquisitorial system, and put the wheels of criminal proceedings in motion automatically. The court is obliged to open a file of enquiry and will invite the parties to join in the criminal proceedings with their civil claim. A prejudiced party has six months from the date of the accident within which to make his interest known to the court. By doing this he triggers the criminal action. If he fails to do so the prosecution will be dropped. Where the incident is less serious the court will classify it as a misdemeanour. Serious crimes will be prosecuted automatically, whereas misdemeanours wait for the victim to decide whether there should be a prosecution. Sometimes, other entities must also be informed of an accident in which there have been personal injuries. For example, the police must be informed in cases of environmental accidents. If someone is injured at work, the employer will notify the mutual insurer to which the employer belongs. The police will sometimes reconstruct an accident, especially a road traffic accident or other cases of a criminal nature.
Release of evidence The police send their report to the local court of enquiry.
Use of evidence in civil proceedings If the prosecution is successful, the facts cannot be changed in any subsequent civil proceedings. Criminal proceedings could be nullified where the claimant was not given the opportunity to participate in the them.
Criminal injuries compensation scheme There is no criminal injuries compensation board which will pay compensation to the claimant where the defendant is insolvent.
THE LEGAL PROFESSION In Spain, lawyers do not generally refer to themselves as specialists in the field of personal injury. There is no association specifically of personal injury lawyers.
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Personal Injury: Practice and Procedure in Europe They are not allowed to advertise their services and the regional Bar associations have no official lists of personal injury practitioners. The police and other lawyers are usually the best sources of referral. Spain has a fused system of legal practitioners, so there is no distinction between barristers and solicitors. A Spanish lawyer has rights of audience in the territory covered by his regional Bar association, although this is changing so that agreements between the different bars allow lawyers to practice in more than one jurisdiction. Each party pays his own costs, with certain exceptions such as in criminal proceedings in which the action is taken automatically and where it involves a serious crime. In criminal proceedings (falta) for misdemeanours, there is no rule concerning mandatory representation by a lawyer, so the claimant has the option of conducting the claim himself. This is inadvisable and rarely done. Other costs such as translation and notarisation are also borne by the parties. Where a person is legally aided there is no choice of lawyer. The court will generally provide a solicitor.
INSURANCE Insurance requirements Insurance is compulsory in Spain only for motor vehicles, hunting and accidents at work. It is also compulsory in the area of nuclear energy.20 The minimum level of compulsory motor vehicle insurance in Spain is set at 56,000,000 pesetas.21 Any amount of coverage above this is voluntary. The maximum amount of obligatory coverage for damage and loss of belongings is 16,000,000 pesetas per accident.
The uninsured driver If the defendant is uninsured or the defendant becomes insolvent, compensation will be paid by the Consorcio de Compensacion de Seguros, which is State insurance for uninsured drivers. This body has redress against the defendant. This guarantee fund will compensate the plaintiff up to the limit of the compulsory insurance. If the defendant is insured but in breach of certain exclusions in his insurance policy, the insurer will normally be asked to pay compensation to the plaintiff. The insurer then has a right of action against the defendant to recover this amount.
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20 Royal Decree Law 25/1964, dated 29 April, and the Regulations on Radioactive Nuclear Facilities, Decree 2869/1972, dated 21 July. 21 At the time of writing this was approximately £280,000. 150
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Insurer as party to proceedings Proceeding can be brought directly against the insurance company rather than the tortfeasor.22
DAMAGES Heads of damage There are two heads of damages for personal injury.23 The first, dias de baja, is for the temporary incapacity suffered by a plaintiff after an accident. This includes pain and suffering, convenience, expenses and lost earnings. The second head of damages covers permanent incapacity. Moral damages, which compensate for the pain, suffering and inconvenience, are awarded to the victim and are also available to close relatives of a severely injured victim.24
Interest Interest is set by the courts. Generally, the applicable interest rate is the legal interest rate which is set by the Bank of Spain. The only exception to this will be on the agreement of the parties.
Lump sum or periodic payments Damages generally take the form of a lump sum.
Provisional an interim payments Provisional damages, paid where the plaintiff’s condition may deteriorate at some point in the future and require a further payment of damages, are not used in Spain, but it is possible to re-open a case in certain circumstances, however, to similar effect. Any deterioration of the plaintiff’s condition may be compensated if it was unforeseen at the time of the first award and direct causation is proved. Where the possibility of deterioration was foreseen medically at the time of the original proceedings, the first award should have taken it into account.
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22 Article 76 of the Ley de Contratos Seguros. 23 de Lorenzo, JM, ‘Personal Injury in Spain – Law 30/95: Some Particular Problems’, May 1996, APIL Newsletter, Vol 6, Issue 2, p 12. 24 For example, parents, siblings and grandparents. 151
Personal Injury: Practice and Procedure in Europe Interim damages are not often awarded but periodic payments are used in some cases. Under such an arrangement a pension is paid based on a discounted daily rate of dias de baja. In order to qualify for an interim payment, the plaintiff would have to be declared medically unfit and prove that he is unable to obtain an income from any other source. Insurers are unlikely to volunteer an interim payment, but are more recently making advance payments for certain kinds of medical care.
Punitive damages The courts do not award punitive damages per se, but will award punitive interest on awards of damages. The interest payable will be increased by 50% if payment into court is not made within three months of the accident.
Bereavement damages Claimants for bereavement damages need not be heirs of the deceased. For all areas of negligence except road traffic accidents, claimants need only prove they are prejudiced as a result of the death. Under the new law for road traffic accidents, claimants of bereavement damages must fit into the new tariff scheme. Damages will be modified by factors such as the dependant’s own earnings.
Level of damages In 1991 the Ministry of Finance published a table to assist judges with the calculation of damages in road traffic accident cases and reduce the regional variations in quantum.25 It was initially meant to assist only in out-of-court settlements, but an updated one contained in law 30/95 is now compulsory for awards in all claims arising from road traffic accidents.
Principles and guidelines The general principle of compensation has been, until recently, full compensation for unlimited losses sustained. However, the new law concerning road traffic accidents seems to have overridden that. If a loss is incurred in a foreign currency, the courts can, in effect, award damages in that foreign currency by awarding payment in Spanish currency that equals the stipulated foreign currency value, according to the rate of exchange on the date of enforcement.
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25 Baremo Orientativo. 152
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Social security and employers’ payments Where plaintiffs who have an actionable claim receive State benefits, the dias de baja is reduced accordingly. The social services has a right of reimbursement for all benefits received by the claimant, except medical care. It can be exercised by a direct action but has no right of priority over the plaintiff’s damages. A plaintiff’s employers have a statutory obligation to make some salary payments during an employee’s incapacity. There are two kinds of sick pay made to the employee for accidents, depending on whether he suffers temporary or permanent incapacity. In cases of temporary incapacity, the company itself continues to pay the employee, although the company may subsequently deduct 75% of this salary payment from its payments to Social Security. In cases of permanent incapacity, the social security system pays an employee by means of private insurance.
PROCEDURE Commencing proceedings Service To initiate a civil claim, the plaintiff presents a formal written claim to the civil court. It is common, however, for the claimant to obtain compensation from the criminal courts. It is advisable to instruct either a local lawyer or a specialist in Spanish personal injury law to obtain official information from authorities investigating an accident. If the plaintiff wishes to initiate and conduct a case through the civil court only, he must abstain from initiating or participating in a criminal enquiry, which must otherwise be done within two months of the accident. His other option is to reserve the civil action if the criminal case is going ahead without the plaintiff having instigated it. It is up to the defendant to notify his insurers that he is being sued, but the plaintiff has the option of suing the insurance company directly.26 Service of proceedings on the defendant must be effected through the court. The time limits for service vary according to the type of proceedings, and are normally set by the court. Cross-border service is governed by the Hague Convention.27 A defendant can bring a third party into the proceedings by making a formal request in a counter claim or including him in the initial action. The plaintiff can bring __________________________________________________________________________________________________________________________________________
26 They can be made a party to the proceedings by Art 76 of the Contrato de Seguros. 27 The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965. 28 See note 11 above. Employers may also be held vicariously liable for the negligence of their employees under Art 1903 which provides that ‘the owners or directors of an establishment or enterprise are liable for the damage caused by their employees in the service of the branches in which they are employed or on account of their duties’. 153
Personal Injury: Practice and Procedure in Europe in a second defendant, including parents or employers, who might be vicariously liable.28 If more than one person is responsible for the plaintiff’s damage, they can all be joined as defendants in the same action.
Level of court The level of court in which criminal proceedings will begin is determined by whether the crime is classified as a crime or misdemeanour. Serious crimes will be handled by a higher court. For civil cases concerning road traffic accidents, there is only one court in which the case can be initiated.
Court management The average time from the commencement of proceedings to the court hearing is difficult to determine, as it will depend on not only whether it falls within the criminal or civil jurisdiction, but also on the work load of each individual court.
Evidence The Spanish legal system has historically been inquisitorial in nature. It is becoming less and less so, however, and most cases, unless triggered unilaterally by the victim in the case, become adversarial. In both criminal and civil proceedings, the parties are responsible for obtaining their own evidence. The defendant then has the option of disputing the evidence, leading to a procedure of selection of medical experts which will prepare the final reports. Parties are obliged to disclose their evidence at the start of the action in a civil case. Patients have a statutory right to provide the court with their own medical records and the details of treatment given. However, in cases of medical negligence, defendants are sometimes reluctant to release them, and so the courts will often have to request their release. The court will instruct its own experts to examine the evidence in criminal proceedings. Foreign experts are not brought in. The normal course of events would be for the court-appointed doctor to examine the victim in the same locality of the court. If the plaintiff is unable to travel, the court-appointed expert will usually base his report on the evidence of the plaintiff’s own experts.
Witnesses Evidence is generally presented in written form to the court, although witnesses can be compelled to attend the court in order to give evidence. The penalty for non-compliance is a fine. Witnesses residing outside the jurisdiction do not have to attend in person to give evidence. They can provide sworn depositions. 154
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Settlement procedure Payments into court are a novelty in Spain and are used in an effort to save interest, rather than save costs.
ENFORCEMENT PROCEEDINGS Final judgments are directly enforceable by use of ‘enforcement papers’, which are sent to the defendant’s home address, his place of work, his bank or to a government body. In criminal procedure the criminal court is responsible for enforcement. In civil procedure enforcement is left to the winning party. It is not particularly costly to seek enforcement. Enforcement is usually only a problem where the defendant is insolvent or impossible to find. International execution of judgments is regulated by the Brussels Convention for countries of the European Union, the Lugano Convention for countries of the European Free Trade Association (EFTA) and by various bilateral agreements with other countries. Cross-border enforcement involving countries other than these is regulated by domestic Spanish procedural law.29
COSTS Usually, parties pay their own lawyers and costs, but in civil law, recently, there have been some exceptions in the more serious cases, in which the losing party will pay the costs of the other side. A legally-aided party will only have to contribute towards the cost of his action if it is successful. In the event that the legally-aided plaintiff wins the claim, and costs are awarded against an insolvent defendant, the legal aid board is entitled to recoup its expenses from the damages awarded to the plaintiff.
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29 Article 954 of the Spanish Civil Code. 155
CHAPTER SIXTEEN
SWITZERLAND
LIABILITY The general rules on civil liability are set out in Articles 41–61 of the Swiss Code of Obligations. The standard of care for personal injuries is based on fault and reasonableness.1 However, some areas of negligence are governed by regimes of strict liability. Particular types of harm include the following basic characteristics: • Road traffic accidents are governed by a regime of strict liability.2 • Employers liability is based on vicarious liability principles which can be rebutted by a defendant who can prove he took all precautions appropriate under the circumstances.3 • In cases of medical negligence, the plaintiff bears the onus of proving causation. Such claims can also be based on contract law. • Product liability in general is governed by a no-fault regime. • With fatal accidents the general principles apply. However, cases of road traffic accidents or product liability are governed by their respective no-fault regimes. • In cases of occupier’s liability where damage is caused or threatened by an owner of land who exceeds his rights of ownership, the party insured can claim damages.4 • Keepers of animals are liable unless they can prove that all appropriate precautions were taken.5 • With environmental accidents the person who caused the damage is generally liable for the cost of removing the pollution. • Train accidents are governed by a regime of no-fault liability. The Swiss State is liable for all accidents caused by Swiss civil servants, including train drivers. • Aeroplane accidents are governed by the Warsaw Convention 1971.
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1 2
3
4 5
Article 16 of the Swiss Civil Code. For further information on liability for the operation of motor vehicles, rail and aeroplanes, see Dessemontet, F and Ansay, T (eds), Introduction to Swiss Law, 1981, p 133, Deventer, The Netherlands: Kluwer. Article 55, I of the Swiss Code of Obligations provides: ‘The principal shall be liable for damages caused by his employees or other auxiliary persons during the performance of their work, unless he proves that he has taken all precautions appropriate under the circumstances in order to prevent damages of the kind, or that the damage would have occurred in spite of the application of such precautions.’ Articles 58, I of the Swiss Code of Obligations and 679 of the Swiss Civil Code. Article 56, I of the Swiss Code of Obligations. 157
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DEFENCES Defences include contributory negligence,6 an intervening act of a third party, necessity and self-preservation. Whether these act as complete or partial defences will depend on the case at hand. A plaintiff can be held 100% contributorily negligent.
PERSONS UNDER A LEGAL DISABILITY If the defendant is a minor he can be held liable at age 18, but depending on the particular minor’s own maturity he can be liable for damages caused by wrongful acts at a younger age. The head of the family can be liable for damage caused by minors for whom he is responsible.7 Where the minor or a mentally incapacitated party is insured or has sufficient financial means, the judge may impose liability on him if it is equitable to do so. If the plaintiff is a minor he must be represented by parents in the proceedings. If parents are unable or unwilling to represent the minor the court will appoint somebody to act on the minor’s behalf. In other cases in which a plaintiff or defendant is not mentally capable of conducting his own affairs, the court will ask him to appoint a representative or, failing that, will do so for him.
JURISDICTION If the accident happens in Switzerland but the defendant is domiciled elsewhere, proceedings can be commenced in either jurisdiction.8 Domicile is defined as being the place in which a person’s life is centred, considering where his family lives, where he works and where he has his friends. If the accident is brought in one court, neither party has the right to ask that the proceedings be transferred to a different jurisdiction, unless the court is not competent. If proceedings are brought at the place of domicile of the defendant and it is different to the place of the accident, the court will apply the law of the country in which the accident occurred. Generally, if both parties have habitual residence in the same country, the law of the country in which the accident occurred or its effects were felt will be applied.9
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6
7 8 9
Article 44, I of the Swiss Code of Obligations provides that ‘the judge may reduce or completely deny any liability for damages if the injured party consented to the act causing the damage, or if circumstances for which he is responsible have caused or aggravated the damage, or have otherwise adversely affected the position of the person liable’. Article 333, I of the Swiss Civil Code. Switzerland has ratified the Lugano Convention 1988. If it is a road traffic accident, the Hague Convention on the Law Applicable to Traffic Accidents 158
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LIMITATION PERIODS In Switzerland, service is made by the court and not by the parties. There is no procedural time limit concerning commencement of proceedings, but a claim can be time barred by the statute of limitations. Article 60 of the Swiss Code of Obligations (CO) stipulates the time limit as being one year from the date at which the plaintiff received knowledge of the damage and of the identity of the person liable for it, and, in any event, within 10 years of the damage actually being caused. If the negligent act was also a criminal one which is subject to a longer period of limitation by statute, then the longer limitation period applies to the civil claim. The limitation period can be interrupted by acknowledgement of the claim by the defendant, such as making interest and instalment payments of a pledge of payment, or by bankruptcy.10 Once the running of the statute of limitations has been interrupted by bringing suit or raising a defence during the course of the litigation, the time period starts afresh with any judicial act of the parties.11 The limitation period can be extended by the parties by consent with no overall maximum. The courts have no discretion to extend the limitation period. Where the plaintiff is a minor or a mental patient, the rules are the same.
FUNDING Legal aid Legal aid is actually granted by the court rather than a special legal aid board. A foreigner who is not resident in Switzerland can qualify for legal aid if the country involved has signed the appropriate treaty on this matter. The main qualification criteria for legal aid concern the financial circumstances of the plaintiff, how much help the plaintiff will need from a lawyer, and whether the case is complicated or straightforward. There is no maximum limit to which legal aid will fund. If a person qualifies for legal aid, there is no contribution payable by him towards the costs of the litigation. The court granting the legal aid has no right to recoup its expenses from the damages awarded to the plaintiff where the defendant has insufficient means to pay the claim and costs awarded against him.
Contingency fees Contingency fees are not allowed under Swiss law. __________________________________________________________________________________________________________________________________________
10 Articles 135 and 136. 11 Article 138. 159
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Legal expenses insurance Parties are allowed to be supported by legal expenses insurance. Some home contents insurance policies will also assist parties. If the family home insurance does not cover legal expenses, there are special legal insurance policies which can be taken out. These are becoming increasingly popular.
Trade unions Some unions will assist a member in either bringing or defending an action. The Workers Unions, for example, will help members with labour law proceedings.
CRIMINAL PROCEEDINGS Civil damages in criminal proceedings In most cantons, a criminal court has the power to award compensation to the plaintiff if the defendant is prosecuted through the criminal courts. The plaintiff must submit a formal claim, however, as this does not happen automatically. The awarding of damages in the criminal court generally prevents a civil claim being made. Damages are awarded on the basis of the injury and are assessed in the same manner as in civil proceedings.
Criminal investigation When a person is injured the police are always called. They only start to investigate automatically if there are serious injuries. Similarly, criminal proceedings will only commence if the injuries are serious, otherwise it is left to the injured party to initiate proceedings by submitting a claim to the police or the district attorney. Police will reconstruct an incident where necessary to understand what has happened. Certain other bodies should be informed of an incident in which a person is injured in cases of medical negligence, accidents at work and environmental disasters. Which body should be informed will depend on the incident and the canton. Criminal proceedings only interrupt the limitation period if the claim for damage is submitted to the criminal or civil authorities. Prosecution in a foreign jurisdiction interrupts the limitation period only if the claim for damage is submitted to the criminal or civil authorities.
Release of evidence The prosecution or police usually make their evidence readily available to a prospective plaintiff’s solicitor. Such evidence is obtained by formal request. There is generally no fee for this. The prosecution or the police will release the evidence by the indictment 160
Switzerland of the defendant, but generally earlier. Police reports are usually released immediately.
Criminal injuries compensation scheme If the defendant is unable to pay, the State will pay compensation to the victims of personal injuries including rape. The criminal injuries compensation board is financed by the State and has redress against the defendant.12 The board will pay the costs of a person’s choice of lawyer, as it is felt that clients should have the right to choose their lawyers themselves. If criminal proceedings are brought and result in a conviction, even in a foreign jurisdiction, that conviction can be pleaded in the civil court. A criminal conviction is of persuasive influence only. The judge in a civil court is not bound by a criminal acquittal or conviction.
THE LEGAL PROFESSION There is no distinction between solicitors and barristers under Swiss law, but only lawyers who are admitted to the Bar are allowed to represent parties in court. A lawyer who has passed the Bar examination in one canton are admitted to all the courts of the other cantons without any further examinations as a constitutional right. Lawyers therefore have the right of audience in the courts of first instance all over Switzerland. Where a person is legally aided, the only restriction on choice of lawyer is that it must be one who practices in the canton in which the proceedings take place. If a person cannot find a lawyer willing to act under the legal aid scheme, the court can appoint a lawyer ex officio. Lawyers have no right to call themselves ‘specialists’ in the field of personal injury. They do not advertise their services, but information about such practitioners can be obtained at the local lawyers’ association.13 There is no association of personal injury lawyers.
INSURANCE Insurance requirements
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12 Opferhilfestelle. 13 For example, in Zurich, the Verein Zurcher Rechtsanwalte could be contacted. 14 Indemnity is limited regarding aeroplane crashes by the Warsaw Convention. 161
Personal Injury: Practice and Procedure in Europe Insurance is compulsory against road traffic accidents and aeroplane crashes.14
The uninsured driver Generally speaking, every driver is insured. Without insurance a driver is unable to get a license plate. If a person is injured by a the driver of a stolen vehicle, he will get compensation from the insured owner of the car or the driver himself. If the owner of the car or the driver is unknown, the insurance company’s own fund will pay the compensation. If the defendant is in breach of any terms of the insurance agreement, or if the insured lends the car to a third party, the plaintiff will still be paid by the defendant’s insurance policy. No other body will adopt the claim.
Insurer as party to proceedings It is generally the owner of the car and not the driver of the car who is responsible with respect to the victim. In road traffic accident cases, the proceeding can be brought directly against the insurance company rather than the tortfeasor. No formal notice has to be given to the insurers before or upon issuing proceedings to secure the insurance cover.
DAMAGES Heads of damage An injured person can recover damages under the heads of pain and suffering, general damages and special damages.
Interest Interest accrues on damages starting from the date of the accident. There is no fixed rate of interest.
Lump sum or periodic payments Swiss courts use both lump sum awards of damages and periodic payments.
Provisional and interim payments Provisional damages are available where the claim is settled but there is a real risk of the injured person developing a side effect at some time in the future.
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Switzerland Swiss courts rarely award interim payments, although some insurers will make an interim payment on a voluntary basis where they are clearly liable and will ultimately be liable for the plaintiff’s damage anyway.
Punitive damages Swiss courts never award punitive damages.
Bereavement damages Bereavement damages are available to persons who have lost their source of support as the result of a homicide.15 The next of kin of the deceased may also get reparations. Moral damages will be awarded where the plaintiff or his relatives have suffered psychological damage due to the accident.
Level of damages Respondents were of the opinion that, in some cases, expected damages are too small in relation to the cost of proceedings to make a claim worthwhile. There are some publications in Switzerland which regularly detail and update levels of damages.16
Principles and guidelines Damages can be awarded in a foreign currency if the plaintiff requests it.
Social security and employers’ payments Any State benefits received by the plaintiff will be set off against the amount payable by the defendant in damages. The plaintiff may not claim both State benefits and full compensation from the defendant. If, for example, the plaintiff receives an invalidity pension from the State which amounts to 80% of his former salary, he can only claim the remaining 20% from the defendant. Social services can claim reimbursement for its payments to the plaintiff through a direct right of action against the defendant. The employers of the plaintiff have a statutory obligation to pay salary during incapacity for stipulated amounts of time, depending on the length of time an
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15 Article 45 of the Swiss Code of Obligations. 16 See Stauffer, Schatzle, Barwerttafeln, last edn, Zurich 1989. 163
Personal Injury: Practice and Procedure in Europe employee has been in that particular employment. The employer has no final right of action, but may have a right to be reimbursed by the public social insurance system or by private insurance.
PROCEDURE Commencing proceedings Service There is no general Swiss Law concerning civil procedure, and each canton has its own civil procedure. A claim is initiated in Switzerland by the plaintiff filing a claim to the court, or, in certain cantons, to the justice of the peace. Lawyers seeking information from criminal investigators or the criminal and civil courts generally must be admitted to the Bar of the respective canton. Foreign lawyers will therefore need to instruct a lawyer in that canton from the outset. Service of proceedings is carried out by the court. Cross-border service is done by way of legal help from the foreign State. If more than one person is responsible for the damage, they can all be joined as defendants in the same action. A defendant can bring in a third party by giving third party notice. The plaintiff can bring in a second defendant but must do so at the commencement of proceedings. If one of more defendants appeals, that defendant’s liability will be retried rather than the whole action.
Level of court Proceedings are commenced in the district court as the court of first instance or before a justice of the peace in some cantons. Parties may, however, agree in writing to start proceedings in the higher Cantonal Supreme Court. It is sometimes felt that the benefit of this is a more expedient result since, in some district courts, the judges are laymen.
Court management The average time from the commencement of proceedings to the court hearing varies, but hearings themselves are rare. Since proceedings are given in writing, hearings are only called if the amount in dispute is small, if witnesses are heard or if the court wants to suggest a settlement to the parties.
Evidence Swiss civil court procedure is adversarial in nature. The court is primarily responsible __________________________________________________________________________________________________________________________________________
17 For example, the place of the accident. 164
Switzerland for obtaining the evidence on request of the parties. Patients have a statutory right to see medical records and details of treatment given. Evidence obtained by the parties must be admitted by the court. Generally, the court will not give any directions as to how to proceed with the case. Evidence is given by way of written documents, witnesses, experts and physical inspection of relevant places.17 It will instruct its own independent experts. They will be appointed in Switzerland, regardless of the plaintiff’s domicile. The plaintiff may introduce his own expert evidence in addition. Witnesses can be forced to give evidence, but a party cannot be forced to disclose documentary evidence. Sworn depositions can be submitted to the court but do not carry the weight of witness statements. Where a witness resides outside the jurisdiction, the court will ask a court within the witness’ domicile to assist with the evidence.
Witnesses Witnesses can be compelled to attend court to give evidence. In Zurich, for example, failure to provide the court with the requested evidence can result in a fine or up to 10 days imprisonment.
Settlement procedures There are no provisions for a defendant to make a payment into court before the case is heard.
ENFORCEMENT PROCEEDINGS It is up to the parties to seek enforcement rather than the court. Enforcement procedures include debt collection proceedings and summary court proceedings where the defendant opposes enforcement. Enforcement is usually not expensive, and is only a problem where the defendant has disappeared or is insolvent. Interim orders are enforceable. Cross-border enforcement is governed by the Lugano Convention, the New York Convention on arbitration and the rules of Swiss private international law.
COSTS There is no fixed level of costs for lawyers. They charge on an hourly basis and the amount in dispute or an ordinance by the court. The kind of ordinance will depend again on the canton.18 The losing party to a claim must pay his lawyer’s fees, the court costs and the fees of the other party’s lawyer. The court will order the loser to pay the winner’s costs, but __________________________________________________________________________________________________________________________________________
18 In Zurich, for example, it is a tariff enforced by the Cantonal Supreme Court. 165
INDEX Acts of God Greece, Italy, Netherlands, The, Russia,
69, 70 82 103 126
Aeroplane accidents Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Northern Ireland, Russia, Scotland, Spain, Switzerland, Warsaw Convention,
3 13, 17 23, 28 35 45 56, 61 69 82 115 125 133 145 161 3, 45
Animals Cyprus, Denmark, England and Wales, Finland, France, Germany, Italy, Netherlands, The, Northern Ireland, Russia, Scotland, Switzerland,
3 13 23 35 45, 49 56 81 103 115 125 133 157
Scotland, Spain, Switzerland, Children Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland, Commencement of proceedings Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Northern Ireland, Russia, Scotland, Spain, Comparative law,
Case management Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia,
141 154 164 4 14, 15, 19 24, 31 35, 36 46 56, 58 70 82, 83 94 104, 105 116 125, 126 134, 135 146 158, 159 10–11 20–21 31–32 41–42 52–53 65–66 76–77 89–90 100 122–23 130–31 140–41 153–54 1
Compromise See Settlement
10 21 32 42 53 66 77 91 101 113 122 131
Contingency fees Cyprus, Denmark, England and Wales, Finland, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland,
167
6 15 26 37 58 72 84 96 106 117
Personal Injury: Practice and Procedure in Europe Russia, Scotland, Spain, Switzerland, Contributory negligence Cyprus, Denmark, England and Wales, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
126 135 148 159
Spain, Switzerland, Criminal injuries compensation scheme Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
4 14 24 47 56 69, 70 82 93 104 115 125 134 145, 146 158
Costs Cyprus, Denmark, England and Wales, Finland, France, Germany, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
6, 11 15, 22 34 37, 43 53, 54 58, 67 84, 92 95, 102 106, 114 117, 124 132 135, 143 150, 155 165
Courts Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland,
10 21 32 42 53 66, 68 77, 79 90–91 101 112–13 122 131 141
Criminal proceedings Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland, Cyprus, airline accidents, animals, case management, children, commencement of proceedings, contingency fees, contributory negligence, costs, courts, criminal injuries compensation scheme, 168
154 164
7 17 26, 27 38, 42 49 60 73 86 97 108 119 128 137 149 161 6–7 16–17 26–27 37 48–49 59–60 72–73 84–86 96–97 107–08 118–19 127 136–37 148–49 160–61 3–11 3 3 10 4 10–11 6 4 6, 11 10 7
Index criminal proceedings, damages, bereavement, heads, interest, interim payments, lump sums, periodic payments, provisional payments, punitive, quantum, social security, defences, directions, domicile, drugs, employers’ liability, enforcement, cross-border, environmental accidents, evidence, fatal accidents, foreign lawyers, insurance, jurisdiction, legal aid, legal expenses insurance, legal profession, liability, limitation periods, lis alibi pendens, medical examinations, medical negligence, mental incapacity, negligence, Northern Cyprus, occupiers’ liability, procedure, reasonableness, road traffic accidents, service of process, abroad, settlement, standard of care, trade union funding, witnesses,
6–7 6, 8–10 9 8 8 9 8 8 9 9 9 10 4, 5 10 4–5 3 3, 10, 11 11 11 3 7, 10–11 3 7 6, 8, 9 4–5 6 6 7 3 5, 6 5 11 3 4 3 5 3 10–11 3 3, 5, 7, 8 5, 10 10 11 3 6 11
Damages See also Criminal injuries compensation scheme Cyprus, 6, 8–10 Denmark, 16, 18–20 England and Wales, 29–31 Finland, 37, 39–41 France, 47, 48, 50–52, 53 Germany, 59, 62–65 Greece, 72, 74–76 Italy, 84–85, 87, 89 Malta, 86, 99–100 Netherlands, The, 107, 110–11 Northern Ireland, 117, 118, 120 Russia, 126, 127, 129–30 Scotland, 136, 138–40 Spain, 148, 151–53 Switzerland, 158, 160, 162–63 Defences Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
4, 5 14 24 35 46 66 70 82 93 104 115 125 133 146 158
Denmark, 13–22 aeroplane accidents, 13, 17 animals, 13 case management, 21 children, 14, 15, 19 commencement of proceedings, 20–21 consent, 14 contingency fees, 15 contributory negligence, 14 costs, 15, 22 courts, 21 criminal injuries compensation scheme, 17
169
Personal Injury: Practice and Procedure in Europe criminal proceedings, damages, bereavement, heads, interest, lump sum, periodic payments, provisional damages, punitive damages, quantum, social security, defences, domicile, employment, enforcement, cross-border, evidence, foreign lawyers, insurance, jurisdiction, legal aid, legal expenses insurance, legal profession, liability, limitation periods, medical negligence, mental incapacity, negligence, occupiers’ liability, procedure, product liability, road traffic accidents, self-defence, service of process, cross-border, settlement, standard of care, trade union funding, train accidents, witnesses, Directions Cyprus, England and Wales, France, Greece, Malta, Northern Ireland,
16–17 16, 18–20 19 18 18 18 18–19 18–19 19 19–20 20 14 14 13, 18, 20, 21 22 22 16–17, 21 21 13, 15, 17–18 14 15, 17, 22 15 17 13 14–15, 17 13 14, 15 13 13 20–22 13 13, 17 14 20–21 21 22 13 16 13 22
Domicile Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
4–5 14 24 36 46 57 70 83 94 104–05 116 125 134 146–47 158
Employment See also Trade union funding Cyprus, 3, 10, 11 Denmark, 13, 18, 20, 21 England and Wales, 23, 28, 31 Finland, 35, 39, 41 France, 45, 49, 72 Germany, 55, 65 Greece, 69, 76 Italy, 81, 89 Malta, 93 Netherlands, The, 103, 111 Northern Ireland, 115, 121 Russia, 125, 130 Scotland, 133, 140 Spain, 145, 153, 155 Switzerland, 157 Enforcement cross-border,
Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta,
10 32 53 73 101 122
170
11, 22, 33, 43, 54, 92, 114, 123, 143 11 22 33 43 54 68 78–79 91–92 102
Index Netherlands, The, Northern Ireland, Russia, Scotland, Switzerland,
114 123 132 142–43 165
limitation periods, medical negligence, mental incapacity, negligence, novus actus interveniens, occupiers’ liability, procedure, product liability, road traffic accidents, service of process, cross-border, settlement, standard of care, trade union funding, train accidents, volenti non fit injuria, witnesses,
England and Wales, 23–34 aeroplane accidents, 23, 28 animals, 23 case management, 32 children, 24, 31 commencement of proceedings, 31–32 contingency fees, 26 contributory negligence, 24 costs, 34 courts, 32 criminal injuries compensation scheme, 26, 27 criminal proceedings, 26–27 damages, 29–31 aggravated, 30 bereavement, 30 employers’ liability, 31 heads, 29 interest, 29 interim payments, 30 lump sum, 29–30 periodic payments, 29–30 provisional payments, 30 punitive, 30 quantum, 30–31 social security, 31 defences, 24 directions, 32 domicile, 24 employment, 23, 28, 31 enforcement, 33 cross-border, 33 environment accidents, 23 evidence, 27, 32 fatal accidents, 23 insurance, 26, 28–29 jurisdiction, 24 legal aid, 25–26, 27, 34 legal expenses insurance, 26 legal profession, 27 liability, 23
171
24–25, 27 23 24 23 24 23 31–33 23 23, 26, 28 31–32 31 31, 33 23 26 23 24 33
Environment accidents Cyprus, England and Wales, Finland, Germany, Greece, Italy, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
3 23 35 58, 61 69 82 104 115 125 133 145 157
Evidence See also Witnesses Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
7, 10–11 16–17, 21 27, 32 38, 42 48, 53 60, 67 73, 77–78 85, 91 97, 101 108, 113 119, 123 127, 131 136–37, 141 149, 154 160–61, 164–65
Personal Injury: Practice and Procedure in Europe Fatal accidents Cyprus, England and Wales, France, Italy, Northern Ireland, Russia, Switzerland,
necessity, procedure, product liability, road traffic accidents, service of process, cross-border, settlement, standard of care, trade union funding, train accidents, witnesses,
3 23 45, 49 82 115 125 157
Finland, 35–43 aeroplane accidents, 35 animals, 35 case management, 42 children, 35, 36 commencement of proceedings, 41–42 contingency fees, 37 costs, 37, 43 courts, 42 criminal injuries compensation scheme, 38, 42 criminal proceedings, 37 damages, 37, 39–41 bereavement, 41 heads, 39–40 interest, 40 interim payments, 40 lump sum, 40 periodic payments, 40 provisional payments, 40 punitive, 41 quantum, 41 social security, 41 defences, 35 domicile, 36 employers’ liability, 35, 39, 41 enforcement, 43 cross-border, 43 environment accidents, 35 evidence, 38, 42 insurance, 37, 39 intervening accidents, 35 jurisdiction, 36 legal aid, 36–37 legal expenses insurance, 37 legal profession, 38 limitation periods, 36 medical negligence, 35, 39 mental incapacity, 35, 36
35 41–42 35 35, 39, 42 41–42 41 42 35 37 35 42
Force majeure See Acts of God Foreign lawyers Cyprus, Denmark, France, Germany, Greece, Malta, Netherlands, The, Northern Ireland, Russia, Scotland,
7 21 52 65 79 100 108, 112 122 130 141
France, 45–54 aeroplane accidents, 45 animals, 45, 49 case management, 53 children, 46 commencement of proceedings, 52–53 contingency fees, 47 contributory negligence, 45, 46 costs, 53, 54 courts, 53 criminal injuries compensation scheme, 49 criminal proceedings, 48–49 damages, 47, 48, 50–52, 53 bereavement, 51 heads, 50–51 interest, 51, 54 interim payments, 51 lump sum, 51 periodic payments, 51 provisional payments, 51 punitive, 51 quantum, 48, 52 172
Index social security, defences, directions, domicile, employers’ liability, enforcement, cross-border, environment accidents, evidence, fatal accidents, foreign lawyers, insurance, intervening acts, jurisdiction, legal aid, legal expenses insurance, legal profession, liability, limitation periods, medical negligence, mental incapacity, occupiers’ liability, procedure, product liability, road traffic accidents, service of process, settlement, social security, trade union funding, train accidents, witnesses,
52 46 53 46 45, 49, 52 54 54 50 48, 53 45, 49 52 47, 48, 50–51 46 46 47, 49 47 49 45 47, 49, 52 45 46, 49 45, 49 52–53 45, 49 45, 49, 50 52–53, 54 53 48 48 45 53
heads, 62–63 interest, 63, 68 interim payments, 63–64 lump sum, 63 periodic payments, 63 provisional damages, 63–64 punitive, 64 quantum, 64 social security, 65 defences, 56 domicile, 57 employers’ liability, 55, 65 enforcement, 68 environment accidents, 56, 61 evidence, 60, 67 foreign lawyers, 65 insurance, 55, 58–59, 61–62 intervening accidents, 56 jurisdiction, 57 legal aid, 58, 61, 68 legal expenses insurance, 58–59 legal profession, 60–61 liability, 55–56 limitation periods, 57–58, 60 medical negligence, 55 mental incapacity, 56, 58 necessity, 56 occupiers’ liability, 55 procedure, 65–67 product liability, 55, 61 road traffic accidents, 55, 56, 58, 59, 61–62 service of process, 65–66, 68 cross-border, 66 settlement, 67 standard of care, 55 trade union funding, 59 train accidents, 56 volenti non fit injuria, 56 witnesses, 67
Germany, 55–68 aeroplane accidents, 56, 61 animals, 56 case management, 66 children, 56, 58 commencement of proceedings, 65–66 contingency fees, 58 contributory negligence, 56 costs, 58, 67 courts, 66, 68 criminal injuries compensation scheme, 60 criminal proceedings, 59–60 damages, 59, 62–65 bereavement, 64
Greece, acts of God, aeroplane accidents, case management, children, commencement of proceedings, contingency fees,
173
69–79 69, 70 69 77 70 76–77 72
Personal Injury: Practice and Procedure in Europe contributory negligence, 69, 70 courts, 77, 79 criminal injuries compensation, 73 criminal proceedings, 72–73 damages, 72, 74–76 bereavement, 75–76 heads, 74–75 interim payments, 75 lump sums, 75 periodic payments, 75 provisional payments, 75 punitive, 75 quantum, 76 social security, 76 defences, 70 directions, 77 domicile, 70 employers’ liability, 69, 76 enforcement, 78–79 environment accidents, 69 evidence, 73, 77–78 foreign lawyers, 79 insurance, 71, 72, 74 jurisdiction, 70–71 legal aid, 71–72, 74 legal expenses insurance, 72 legal profession, 73–74 liability, 69 limitation periods, 71, 76 mental incapacity, 70 medical negligence, 73 negligence, 69 procedure, 76–78 product liability, 69 road traffic accidents, 69, 70, 74 self-defence, 60 service of process, 76–77 cross-border, 77 settlement, 78 standard of care, 69 trade union funding, 72 witnesses, 78
Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
35, 39 47, 48, 50–51 55, 58–59, 61–62 71, 72, 74 84, 86–87 98–99 107, 109 119–20 127, 128 136, 138 145, 146, 148, 150–51, 153 160, 161–62
Italy, 81–92 acts of God, 82 aeroplane accidents, 82 animals, 81 case management, 91 children, 82, 83 commencement of proceedings, 89–90 contingency fees, 84 contributory negligence, 82 costs, 84, 92 courts, 90–91 criminal injuries compensation scheme, 86 criminal proceedings, 84–86 damages, 84–85, 87–89 bereavement, 88 heads, 87 interest, 87, 91 interim payments, 88 lump sums, 88 periodic payments, 88 provisional payments, 88 punitive, 88 quantum, 85, 88–89 social security, 89 defences, 82 domicile, 83 employers’ liability, 81, 89 enforcement, 91–92 cross-border, 92 environmental accidents, 82 evidence, 85, 91 fatal accidents, 82 insurance, 84, 86–87
Insurance See also Legal expenses insurance Cyprus, 6, 8, 9 Denmark, 13, 15, 17–18 England and Wales, 26, 28–29
174
Index jurisdiction, legal aid, legal expenses insurance, legal profession, liability, limitation periods, medical negligence, mental incapacity, necessity, occupiers’ liability, procedure, product liability, road traffic accidents, self-defence, service of process, cross-border, settlement, standard of care, trade union funding, train accidents, witnesses, Jurisdiction Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland, Legal aid Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece,
83 84, 86 84 86 81–82 83, 89–90 81 82, 83 82 81 89–91 81 81, 86–87, 90 82 89–90 90 91 81 84 82 91
Italy, Malta, Netherlands, The, Russia, Scotland, Spain, Switzerland, Legal expenses insurance Cyprus, Denmark, England and Wales, Finland, France, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland, Legal profession See also Foreign lawyers Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
4–5 14 24 36 46 57 70–71 83 94 104–05 116 125 134 146–47 158
84 95, 98 105, 109, 119 126, 128 135, 137 147, 150, 155 159 6 15 26 37 49 72 84 96 106 118 127 136 148 160
7 17 27 38 49 60–61 73–74 86 97–99 108–09 119 128 137 149–50 161
Liability See also Employment, Occupiers’ liability, Product liability Cyprus, 3 Denmark, 13 England and Wales, 23 France, 45 Germany, 55–56 Greece, 69
6 15, 17, 20 25–26, 27, 34 36–37 47, 49 58, 61, 68 71–72, 74
175
Personal Injury: Practice and Procedure in Europe Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland, Limitation periods Cyprus, Denmark, England and Wales, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
81–82 93 103–04 115 125 133 145–46 157
domicile, employers’ liability, enforcement, cross-border, evidence, foreign lawyers, Gozo, insurance, jurisdiction, legal aid, legal expenses insurance, legal profession, liability, limitation periods, medical negligence, mental incapacity, negligence, procedure, road traffic accidents, service of process, cross-border, settlement, standard of care, trade union funding, witnesses,
5, 6 14–15, 17 24–25, 27 47, 49, 52 57–58, 60 71, 76 83, 89–90 84–95, 100 105, 112 116–17 126, 130 134–35 147 159
Malta, 93–102 case management, 101 children, 94 Comino, 94 contingency fees, 86 contributory negligence, 93 costs, 95, 102 courts, 101 criminal injuries compensation scheme, 97 criminal proceedings, 96–97 damages, 96, 99–100 bereavement, 99 employers’ liability, 100 heads, 99 interest, 99 interim payments, 99 lump sums, 99 periodic payments, 99 provisional payments, 99 quantum, 100 social security, 100 defences, 93 directions, 101 176
94 93, 100 102 102 97, 101 100 95 96, 98–99 94 95, 98, 102 96 97 93 94–95, 100 93 94 93 100–02 93, 98 100–01 100 102 93 96 101
Medical negligence Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
3 13 23 35, 39 45 55 73 81 93 103 115 125 133 145 157
Mental incapacity Cyprus, Denmark, England and Wales, Finland, France, Germany,
4 14, 15 24 35, 36 46, 49 56, 58
Index Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
70 82, 83 94 105 116, 117 125, 126 134, 135 146 158, 159
employers’ liability, 111 heads, 110 interest, 110, 114 interim payments, 110 lump sums, 110 periodical payments, 110 provisional payments, 110 punitive, 110 quantum, 111 social security, 111 defences, 104 domicile, 104–05 employers’ liability, 103 enforcement, 114 cross-border, 114 environment accidents, 104 evidence, 108, 113 fatal accidents, 104 foreign lawyers, 108, 112 insurance, 106, 107, 109–10 intervening acts, 104 jurisdiction, 104–05 legal aid, 105–06, 109 legal expenses insurance, 106 legal profession, 108–09 liability, 103–04 limitation periods, 105, 112 medical negligence, 103 mental incapacity, 105 necessity, 104 occupiers’ liability, 103 procedure, 112–13 product liability, 102 road traffic accidents, 103, 107, 109 self-defence, 104 service of process, 112 settlement, 113 standard of care, 103 trade unions, 106 witnesses, 113
Minors See Children Motor vehicles See Road traffic accidents Necessity Finland, Germany, Italy, Netherlands, The, Switzerland,
35 56 82 104 158
Negligence See also Contributory negligence, Medical negligence Cyprus, Denmark, England and Wales, Greece, Malta, Russia, Scotland, Switzerland,
3 13 23 69 93 125 133 157
Netherlands, The, 103–14 acts of God, 103 animals, 103 case management, 113 children, 104, 105 commencement of proceedings, 112 contingency fees, 106 contributory negligence, 104 costs, 106, 114 courts, 112–13 criminal injuries compensation board, 108 criminal proceedings, 107–08 damages, 107, 110–11 bereavement, 111
Northern Ireland, aeroplane accidents, animals, case management, children, commencement of proceedings, contingency fees,
177
115–24 115 115 122 116–17 122–23 117
Personal Injury: Practice and Procedure in Europe contributory negligence, 115 costs, 117, 124 courts, 122 criminal injuries compensation scheme, 119 criminal proceedings, 118–19 damages, 117, 118, 120–21 bereavement, 121 employers’ payments, 121 heads, 120 interest, 121 interim payments, 121 lump sums, 121 periodic payments, 121 provisional payments, 121 quantum, 118, 121 social security, 121 defences, 115 directions, 122 domicile, 116 employers’ liability, 115 enforcement, 123 cross-border, 123 environment accidents, 115 evidence, 119, 123 fatal accidents, 115 foreign lawyers, 122, 124 insurance, 118, 119–20 jurisdiction, 116 legal aid, 117, 119 legal expenses insurance, 118 legal profession, 119 liability, 115 limitation periods, 116–17 medical negligence, 115 mental incapacity, 116–17 novus actus interveniens, 115 occupiers’ liability, 115 procedure, 122–23 product liability, 115 road traffic accidents, 115, 118, 119–20 standard of care, 115 service of process, 122 settlement, 123 trade union funding, 118 train accidents, 115 volenti non fit injuria, 115 witnesses, 123
Novus actus interveniens England and Wales, Finland, France, Germany, Netherlands, The, Northern Ireland, Scotland, Switzerland,
24 35 46 56 104 115 133 158
Occupiers’ liability Cyprus, Denmark, England and Wales, France, Germany, Italy, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
3 13 23 45, 49 55 81 103 115 125 133 145 157
Procedure See also Enforcement, Service of process Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland, Product liability Denmark, England and Wales, Finland, France,
178
10–11 20–22 31–33 41–42 52–53 65–67 76–78 89–91 100–01 112–13 122–23 130–31 140–42 153–54 164–65 13 23 35 45, 49
Index Germany, Greece, Italy, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland, Road traffic accidents Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
55, 61 69 81 103 115 125 133 145 157
lump sums, periodic payments, provisional payments, punitive, quantum, social security, defences, domicile, employers’ liability, enforcement, cross-border, environment accidents, evidence, fatal accidents, foreign lawyers, insurance, jurisdiction, legal aid, legal expenses insurance, legal profession, liability, limitation periods, medical negligence, mental incapacity, negligence, occupiers’ liability, procedure, product liability, road traffic accidents, service of process, cross-border, settlement, standard of care, trade union funding, train accidents, witnesses,
3, 5, 7, 8 13, 17 23, 26, 28 35, 39, 42 45, 49, 50 55, 56, 58, 59, 61–62 69, 70, 74 81, 86–87, 90 93, 98 103, 107, 109–10 115, 118, 119–20 125, 128 133, 138 145 161
Russia, 125–32 acts of God, 126 aeroplane accidents, 125 animals, 125 case management, 131 children, 125, 126 commencement of proceedings, 130 contingency fees, 126 contributory negligence, 125 costs, 132 courts, 131 criminal injuries compensation scheme, 128 criminal proceedings, 127–28 damages, 126, 127, 129–30 bereavement, 130 employers’ payment, 130 heads, 129 interest, 129 interim payments, 129
Scotland, aeroplane accidents, animals, case management, children, commencement of proceedings, contingency funds, contributory negligence, costs, courts,
179
129 129 129 129 130 130 125 125 125 132 132 125 127, 131 125 130 127, 128 125–26 126, 128 127 128 125 126, 130 125 125, 126 125 125 130 125 125, 128 130 130 131 125 127 125 131 133–43 133 133 141 134, 135 140–42 135 134 135, 143 141
Personal Injury: Practice and Procedure in Europe criminal injuries compensation board, 137 criminal proceedings, 136–37 damages, 136, 138–40 bereavement, 139 employers’ liability, 140 heads, 138–39 interest, 139 interim payments, 139 lump sums, 139 periodic payments, 139 provisional payments, 139 punitive, 141 quantum, 140 social security, 140 defences, 133–34 domicile, 134 employers’ liability, 133, 138, 140 enforcement, 142–43 cross-border, 143 environment accidents, 133 evidence, 136–37, 141–42 foreign lawyers, 141 insurance, 136, 138 jurisdiction, 134 legal aid, 135, 137 legal expenses insurance, 136 legal profession, 137 liability, 133 limitation periods, 134–35 medical negligence, 133 mental incapacity, 134 negligence, 133 novus actus interveniens, 133 occupiers’ liability, 133 procedure, 140–42 product liability, 133 road traffic accidents, 133, 138 service of process, 140–41 cross-border, 141 settlement, 142 standard of care, 133 trade union funding, 136 train accidents, 133 volenti non fit injuria, 133 witnesses, 142 Self-defence Denmark,
Greece, Italy, Netherlands, The, Switzerland, Service of process abroad,
14
180
60 82 104 158
Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
10, 21, 31, 41, 66, 77, 90, 100, 130 5, 10 20–21 31–32 41–42 52–53, 54 65–66, 68 76–77 89–90 100 112 122 130 140–41 153 159, 164
Settlement Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
11 22 31, 33 42 53 67 78 91 102 113 123 131 142 155 165
Social security Cyprus, Denmark, England and Wales, Finland, France, Greece, Italy, Netherlands, The,
10 20 31 41 48, 52 76 89 111
Index Northern Ireland, Russia, Scotland, Spain,
121 130 140 153
Spain, 145–55 aeroplane accidents, 145 case management, 154 children, 146 commencement of proceedings, 153–54 contingency fees, 148 contributory negligence, 145, 146 costs, 150, 155 courts, 154 criminal injuries compensation scheme, 149 criminal proceedings, 148–49 damages, 148, 151–53 bereavement, 152 employers’ liability, 153 heads, 151 interest, 151 interim payments, 151–52 lump sum, 151 periodic payments, 151 provisional payments, 151–52 punitive, 152 quantum, 152 social security, 153 defences, 146 domicile, 146–47 employers’ liability, 145 enforcement, 155 environment accidents, 145 evidence, 149, 154 insurance, 145, 146, 148, 150–51, 153 jurisdiction, 146–47 legal aid, 147, 150, 155 legal expenses insurance, 148 legal profession, 149–50 liability, 145–46 limitation periods, 147 medical negligence, 145 mental incapacity, 146 occupiers’ liability, 145 procedure, 153–54 product liability, 145 road traffic accidents, 145, 150, 154
service of process, cross-border, settlement, trade unions, train accidents, volenti non fit injuria, witnesses,
153–54 153 155 148 145 146 154
Standard of care Cyprus, Denmark, England and Wales, Finland, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland,
3 13 23 42 55 69 81 93 103 115 125 133
Switzerland, 157–65 aeroplane accidents, 157, 161 animals, 157 case management, 164 children, 158, 159 commencement of proceedings, 164–65 contingency fees, 159 contributory negligence, 158 costs, 165 courts, 164 criminal injuries compensation scheme, 161 criminal proceedings, 160–61 damages, 158, 160, 162–63 bereavement, 163 employers’ liability, 163 heads, 162 interest, 162 interim payments, 162 lump sums, 162 periodic payments, 162 provisional payments, 162 punitive, 163 quantum, 163 social security, 163 defences, 158 domicile, 158
181
Personal Injury: Practice and Procedure in Europe employers’ liability, 157, 163 enforcement, 165 environment accidents, 157 evidence, 160–61, 164–65 fatal accidents, 157 insurance, 160, 161–62 intervening acts, 158 jurisdiction, 158 legal aid, 159 legal expenses insurance, 160 legal profession, 161 liability, 157 limitation periods, 159 medical negligence, 157 mental incapacity, 158, 159 necessity, 158 negligence, 157 occupiers’ liability, 157 procedure, 164–65 product liability, 157 road traffic accidents, 161–62 self-defence, 158 service of process, 159, 164 cross-border, 164 settlement, 165 social security, 163 trade union funding, 160 train accidents, 157 witnesses, 165
Northern Ireland, Russia, Scotland, Spain, Switzerland,
Time limits See Limitation periods Trade union funding Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The,
6 16 26 36 48 59 72 84 96 106
182
118 126, 127 136 148 160
Train accidents Denmark, England and Wales, Finland, France, Germany, Italy, Northern Ireland, Russia, Scotland, Spain, Switzerland,
13 23 35 45 56 82 115 125 133 145 157
Volenti non fit injuria Denmark, England and Wales, Germany, Northern Ireland, Scotland, Spain,
14 24 56 115 133 146
Witnesses Cyprus, Denmark, England and Wales, Finland, France, Germany, Greece, Italy, Malta, Netherlands, The, Northern Ireland, Russia, Scotland, Spain, Switzerland,
11 22 33 42 53 67 78 91 101 113 123 131 142 154 165
