Major differences remain in legal regimes and compensation levels for personal injuries across the European Community. John Price explains.
Two fundamental themes of the European Community are the right to work and the freedom of movement. It should follow that the protection of any individual exercising these rights and working or travelling abroad should be the same level of protection as that individual enjoys at home.
That this is far from the present position is the message that a number of speakers from various countries conveyed to lawyers gathered in Brussels for the annual conference of Pan European Organisation of Personal Injury Lawyers (PEOPIL) in June.
• In Italy, after the death of a child it is possible for the parents to claim for psychological stress; not so in Austria nor in the United Kingdom, where a shameful £7,500 is the maximum payable.
• In Holland and England, one of the most frequently encountered injuries in a road accident is the whiplash injury which causes soft tissue injuries to the neck or back and is responsible for a great deal of pain and suffering. In Germany, however, medical evidence does not recognise soft tissue injuries, and the courts would regard such an injury as minimal and would award no compensation.
• In Poland, problems of obtaining evidence against professionals means that actions for medical negligence are not taken.
• In Spain, financial loss of future earnings are not calculated on an exact basis, and a high wage earner is likely to be penalised through no fault of his own if he is out of work for a lengthy period.
Nevertheless, there are many similarities. No one questions the concept that damages should be payable to anyone suffering bodily injury caused by negligence. Amounts payable vary greatly, but more needs to be known about each country before a worthwhile comparison can be made.
There are, for example, many cultural differences. In Spain, the long term care of a paraplegic is likely to be provided by the family and payments for future care are limited. On the other hand, in the UK, full allowance is made for the cost of care, regardless of the part which may be played by the National Health Service.Then again the payment and role of state benefits differs from country to country, as does the requirement to repay the benefits in a claim for damages. In England the Compensation Recovery Unit (CRC) expects all insurance companies paying damages also to repay the government the whole of the benefits that have been paid. The insurers are able to deduct these payments from the claimant's claim for loss of earnings but not from his or her damages for pain and suffering. If the accident happens in a different country, there is no requirement for repayment of social security benefits unlike many of the European counterparts.
Thus, comparisons are not straightforward, and an understanding of systems is necessary in order to translate the awards. At the moment, awards are given in the currency of the country in question. It may be in the future that they will be expressed in euros. One unexpected benefit of a single currency - perhaps one of the few - is that it will highlight the comparison of awards!
Equally important as the amount of compensation is the method by which it is obtained, and the certainty that payment will be made. The European Community is in the process of establishing a requirement in road traffic cases for there to be an insurance representative available to consumers in their own country and such a bureau would respond to claims arising out of all road accidents, wherever they might have happened. It is obviously a great advantage to be able to correspond and communicate with a bureau in your own country which will react to a claim and will also ensure payment if an agreement is reached. However, it still does not answer the question of who might be liable, how proceedings are commenced if no agreement is reached or the law of which country is applied in assessing damages.
The answer to these questions may depend on whether it is possible to apply various conventions such as the Brussels Convention or the Lugano Convention. These conventions and the impact of private international law give rise to complicated problems. It is enough for the moment to indicate that where the potential defendant resides and where the injury occurs are the important questions in establishing the country in which the claim will have to proceed and which law applies to the assessment of damages. There is always the possibility of a choice of jurisdictions which involves interesting questions of “forum shopping” to maximise compensation payable.
Another difficult problem is within what period of time it is possible to bring a claim. In the UK lawyers specialising in this type of work have regular nightmares over the strict requirement for claims for damages to be brought within three years. In France this period is ten years, and what is more, the period remains in abeyance while the claimant and defendant, through their representatives, are in discussion.
The French system appears to be much more reasonable, but there are exceptions. One exception would be that if the claim is proceeding through the criminal court, which is a more frequent occurrence than in the UK, the time limit would be much shorter. Perhaps after all this is only expressing the nightmare in another form.
In reality, it is not possible to assert confidently that the financial consequences of an injury in one country will be substantially better or worse than in another country. Nor is it possible yet to think that the consumer is adequately protected while exercising the rights to work and travel.
Perhaps it is surprising that there are a number of similarities and a common philosophy. The law applicable in Holland has its origins in Roman Dutch law with a smattering of Napoleon's Code Civil. In England, the common law has a very different history. What remains important is that the common principles should continue to be emphasised and established. At the moment, the number of recorded cases involving personal injury that have been dealt with by the European Courts is negligible, and many of the principles that apply have to be gleaned from commercial law casework. Undoubtedly, this will change and hopefully it will change in such a way that it becomes unimportant to worry about where a defendant resides or in which country an injury occurs.
John Price is president of PEOPIL, 33 Pilcher Gate, Nottingham NG1 1QE, England, and a partner in Bond Pearce, Plymouth. E-Mail: firstname.lastname@example.org