Courts in Member States generally enjoy great discretion in determining the quantum especially for non-economic damage.
Approach Characterisation Unlimited
discretion
An unlimited approach to the courts’ discretionary power in assessing the quantum of damages. This is the case in Romania75, Poland76, and
Luxembourg77
Strong guidance
Scales and tables are highly recommended. This is the approach in the majority of Member States, France78for instance.
Specific limits on discretion
Legislatively imposed caps on damages, fixed tariffs or limits to the discretionary power of the courts in some specific and limited areas of personal injury such as road accidents.
Many Member States do have some maximums on certain types of damage. For example,Malta79, Portugal80, Latvia81, Italy82and Slovakia83
General limit on discretion
Fixed maximum statutory awards applicable to all kinds of accidents leaving no space for the courts’ discretion to ‘personalise’ awards. This is the case inHungary84, Spain85 and Lithuania86for example.
75Following our Country Expert for Romania, Virgil Melnic. 76Following our Country Expert for Poland, Piotr Sadownik. 77Following our Country Expert for Luxembourg, Patrick Goergen. 78Following our Country Expert for France, Isabelle Tinel.
79Following our Country Expert for Malta, Dr Marse-Ann Farrugia.
80Following our Country Expert for Portugal, Dr. Ronald Charles Wolf. 81Following our Country Expert for Latvia, Valters GENCS.
82Following our Country Expert for Italy, Enrico Adriano Raffaelli. 83Following our Country Expert for Slovakia, Peter Bartosik.
84Following our Country Experts for Hungary, Dr. Csaba Pataky and Dr. Tibor Pataky. 85Following our Country Expert for Spain, Emilie Pavageau.
2.3.1.1 Courts influence levels of compensation
Courts play an important role in defining the levels of compensation. As shown below under graph 11 in 70 percent of the Member States courts enjoy an important discretion. This role is attributed to the fact that courts have to appreciate the case based on the facts. In respect to property damage, the facts can be straightforward. However in respect to injury cases, the determination of the extent of the injuries in time, their impact on the victim and the situation of the victim, will have to be assessed by the judge. In some countries, the role of the judge is more constrained. In Ireland87, for example the
Personal Injuries Assessment Board was created in 2003 to speed up the settlement of claims and bring down the costs related to the claim88. This organization has created a
Book of Quantum to determine amounts per injury89. In Sweden90 and Finland where
compensation is organised mostly outside the court system, the discretion of judges, if it exists, has less of a general impact on compensation levels. In Spain91, the legislator has
adopted a series of tables that courts are to follow in assessing losses. Graph 11
Source: Questionnaire and Surveys
87Following our Country Experts for Ireland, John SWEETMAN & Neil LONG 88Act No. 46 of 2003
89http://www.injuriesboard.ie/eng/Forms_and_Publications/Book_of_Quantum.pdf 90Following our Country Expert for Sweden, Dr. Roland Dahlman.
The Interviews show that the judges take schedules into account in making their determination of the award.
Graph 12
Source: Interviews
Many different types of schedules exist. Some schedules are medically oriented and aim to distinguish different types of injuries and their severity. Other schedules are created by actuaries and facilitate the calculation of the losses over time taking into account a number of criteria. Other tables determine the amount of damages per type and level of injury. These are categorized below.
Tool Characterisation
Collections of judicial precedents on the quantum of awards
Advantage: rationalisation of information, more uniformity in awards, more certainty on level of compensation
Disadvantage: against judicial independence from precedents, limits evolutions reflecting changes in society, tends to generalize cases.
Medical scales Advantage: provides the judge with scaling system compiled by experts
Disadvantage: risk of generalization
Actuary tables Advantage: provides the judge with tables to determine compensation for future losses based on statistical information
Disadvantage: risk of generalization and of using these on visiting victims whose countries of residence are not included in the data sets used to compile the tables.
In most countries, these tables serve as guidelines for judges. In few countries are they compulsory; this is the case, for example, in Spain92. In Italy93 too, but their
constitutionality is contested.
2.3.1.2 Levels of compensation can vary within a Member State
In some Member States, such as France or Italy, the levels of compensation for the same injury and very similar facts can vary within the country. The differences can be significant. As a result, the general levels of compensation in a Member State may not reflect local court practice. Courts in Northern Italy, for example, tend to be more generous than their counterparts in the South. As a result, if the accident is in the Northern part of Italy, the Visiting Victim may obtain a higher level of compensation than if the accident occurs in the Southern part of Italy. He or she may be over or under compensated depending on the location of the accident within one Member State.
This leads to an important question: if a Visiting Victim to France comes from Southern Italy, should his or her expectation be based on a national Italian average or on the level of compensation as practiced by the local court closest to where he or she resides?
The scales imposed in Spain94 by the legislator are aimed precisely at resolving the
situation of large divergences between court awards within the country95.
2.3.1.3 Courts shape compensation
In many Member States, the law does not provide lists of possible injuries or of types of possible losses. The Netherlands96 and Denmark extensively regulate compensation. But
in most other countries it is less so, like in France97. As a result courts play an important
92Following our Country Expert for Spain, Emilie Pavageau. 93Following our Country Expert for Italy, Enrico Adriano Raffaelli. 94Following our Country Expert for Spain, Emilie Pavageau. 95http://www.bcf.asso.fr/Documents/indemnisation-espagne.pdf 96Following our Country Expert for Netherland, Sietske Banga. 97Following our Country Expert for France, Isabelle Tinel.
role in the recognition of types of injuries and the level of award attached to them and to the types of possible loss. This role is less obvious in respect of property damage than it is in personal injury cases. In France, for example, the “chance de survie” was recently recognized as a patrimonial right by the courts.
Even the way trials are conducted can have an impact. In the UK, jury trials in personal injury cases were mostly abandoned following a 1998 decision of the House of Lords. This was important as jury awards created great uncertainty in outcome.