3.7.3.1 Compensation based on the income of the victim before the accident The situation of the victim before the accident is only taken into account in some Member States170.
166Following our Country Expert for France, Isabelle TINEL.
167Soc. 28 March 1984, Bull. civ. V, n° 115, p. 89; Civ. 2e, 7 February 1979, Bull. civ. II, n° 41 168Bodily Injuries In European Comparative Law, J.G. Garcia, A. E. Santo, A. Giorgetti
169Following our Country Expert for Slovakia, Peter Bartosik.
In the Netherlands, the Law forecasts compensation for the victim’s loss of earnings: an injured person’s pecuniary losses after an accident must be in line with those which could reasonably have been envisaged had the accident not occurred. Calculation of loss of earnings may include an abstract element in that a reasonable amount of this loss will not be fully known until some point in the future, and could depend on factors impossible to account for when setting compensation for an accident. Often experts or actuaries will calculate the loss of earnings. The basis of compensation is the injured person’s net income on the date of the accident. In Finland, the calculation of compensation is also based on the loss of future earnings.
In Latvia and Hungary in cases of permanent inability to work, loss of income is compensated for by deducting all pensions received from the public funds from their average incomes171; this is to ensure that the person is not over-compensated. The
compensation is paid on a monthly if not agreed otherwise.
Estonian, compulsory Third Party Liability insurers use the average income of the last 12 months as a basis for compensation calculation. There are no actual sums or calculation formulas: income is compensated based on evidence provided by doctors who are able to specify how long a period of disability lasted or the extent of permanent impairment, for example.
Portugal’s accident compensation is represented by a capital lump sum which takes into consideration future losses a victim may suffer and the degree of disability.
The Danish system dictates that when assessing a victim’s permanent disability, it is necessary to obtain expert opinion on the degree of reduced earning capacity from the National Board of Industrial Injuries. In this Member State calculation of damages for permanent incapacity to work is based on three factors: the percentage of loss of earning capacity, annual income, and a capital factor (depending on the age of the person). This calculation does not take into consideration other sources of earnings, such as disability pensions.
171 Following our Country Expert for Latvia, Valters Gencs and following our Country Experts for
InMalta, calculation of compensation in cases of permanent disability can be compared to the one applied in Denmark. The court must assess the percentage of disability according to the opinion of a medical expert, the capital factor (depending on the age of the person), and annual income. For instance, a case in which a 30 year old victim had an income of 372.70 Euros per month before an accident which caused a 12% disability resulted in the court awarding him compensation of 69,769.39 Euros172.
3.7.3.2 Compensation based on a general tariff
In some States, the percentage of incapacity leads to compensation fixed according to a sum which corresponds to each point of incapacity determined. In such cases, the sum fixed for each point of incapacity is not determined according to the income of the victim but is the same for each victim.
It seems to be the case that in theCzech Republic, compensation is also awarded for what might usefully be called damage to an individual’s social capacity. This compensation is called Future Social Handicap and is accompanied in each case with a medical report. In Sweden, if the degree of medical incapacity is 10% or more, insurance companies are obliged to refer the case to the TNS (the Swedish Road Injuries commission) to establish the amount of compensation payable during the period of disability.
It is very interesting to note that in Sweden, a vehicle driver who sustains an injury may have the amount of his compensation reduced if found guilty of an infraction or partly responsible for gross negligence or intent. Major medical costs are allowed and compensation for loss of income is adjusted to 90% of an uninjured person’s estimated income.
InFrance173, the permanent partial disability is evaluated on a percentage scale from 0 to
100 according to a medical scale recognised by courts and insurers. This system is also applied in Luxembourg and Italy. The award is evaluated according to the age of the victim and the seriousness of the disability.
172 Court of Appeal decision Annunziata sive Nancy Caruana v. Odette Camilleri, of 27th February,
2004
3.7.3.3 The dual system in Belgium
In Belgium, compensation can be based on two methods, which may be mixed. It is calculated according to the past and future losses.
In both cases, a percentage of incapacity is fixed by an expert.
The first of these methods concerns high levels of disability and is capitalisation based. It consists in multiplying the percentage of disability by the previous income of the victim. The result will be capitalised by taking into consideration the victim’s age. The formula for calculating compensation takes into consideration average income generated over the previous twelve months, the percentage of incapacity and a coefficient for duration of gainful employment174.
The second method is based on a lump sum for each point of disability percentage. This method is generally used in cases of lower levels of disability. For instance a person of 35 years of age or less is entitled to receive a lump sum compensation of 900 Euros per percentage of disability175.
3.7.3.4 Multiple criteria taken into account in Spain
In Spain, a victim has the right to be compensated for clinical, functional and anatomical after-effects. The compensation will be based on age, seriousness of injuries, familial status of the victim and annual disposable income. The compensation amount is settled by means of the allocation of points to each injury176. Specific tables establish the maximum
and minimum scores per type of after-effect. Normally a doctor who treats a victim’s injuries will only determine what the after-effects are without assessing their extent. The insurer will then send the victim to their own medical experts who will write a report and allocate points according to the extent of injury.
3.7.4 Funeral expenses
Funeral expenses are reimbursed to the victim’s relatives in all Member States except Italy.
174 Indemnity law in Germany, Belgium and the Netherlands, Holger Backu, InterEurope AG
European service law, 2007, p11
175Ibid.
Nevertheless, it should be noted that in some Member States (in Spain for example), funeral expenses are not covered if the accident is exclusively the fault of the victim. Amounts of compensation vary from one Member State to another. In most Member States, all expenses are covered if reasonable.
For instance, in Bulgaria, funeral expenses are compensated at 5,000 Euros by third party insurance177.
InDenmark, funeral expenses are compensated up to 3,000 Euros.
In Latvia, funeral expenses are compensated up to eight times minimum wages by third party insurance (2,049 Euros)178.
In Slovakia, funeral expenses include the costs of the funeral service and cremation, cemetery fees, the price of the gravestone and expenses for maintenance of the tomb. They are compensated up to an amount of 1,784 Euros. Travel expenses and the cost of a sable (funeral robe) are also compensated up to an amount of 1,784 Euros.
InSweden funeral expenses are covered under the heading “compensation in the event of death”. It has to be noted that, here, funeral expenses are based on a large number of types of costs. Swedish law takes into account special funeral expenses for the Visiting Victim, and funeral expenses must be reasonable and based on customs and the Victim’s religion179.
Thus, Compensation is paid for normal burial and gravestone costs. Reasonable compensation may be considered for immediate family’s travelling costs. Certain expenditure on mourning may also be compensated.
177Following our Country Expert for Bulgaria, Emiliya Atanasova. 178Following our Country Expert for Latvia, Valter Gencs.