Personal Injury: Practice and Procedure in Europe

Personal InjuryPractice and Procedure

in Europe

Cavendish Publishing

Limited

CPLondon • Sydney

Personal InjuryPractice and Procedure

in Europe

Research project by Martha Warren Neocleous for theAssociation of Personal Injury Lawyers,

Europe Special Interest Group

Cavendish Publishing

Limited

CPLondon • 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 retrievalsystem, or transmitted in any form or by any means, electronic, mechanical,photocopying, recording, scanning or otherwise, without the prior permission of thepublisher and copyright owners.

Any person who infringes the above in relation to this publication may be liable tocriminal prosecution and civil claims for damages.

No responsibility for loss occasioned to any person acting or refraining from action asa result of the material in this publication can be accepted by the author, editors,Association of Personal Injury Lawyers, or publishers.

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 MelvilleWilliams QC, Michael Napier, Rodger Pannone and Simon Walton. From their initialvision of an organisation that represented the victims of accidents has grown APILwhich now has over 3,000 members. Its members – practising lawyers, academics andstudents – are dedicated to providing the best possible service to those whom theyrepresent. One of the objects of the Association is to share information and to improveknowledge and understanding of the law and practice of personal injury litigation.APIL’s members are drawn from the jurisdictions of the United Kingdom of GreatBritain and Northern Ireland, the Channel Islands and the Isle of Man and theRepublic of Ireland. APIL’s overseas members come from the United States ofAmerica, Canada, Australia and European jurisdictions as well as many others. Theirexperience, 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 SpecialInterest Group of APIL. It was a particular interest of mine as I believed that, althoughwe have a legal history shared with common law jurisdictions, our future legaldevelopment would be shared with the jurisdictions of the European Union.

However, it quickly became apparent that our knowledge of what happened inother European jurisdictions was very limited. Our first task was to devise aquestionnaire to send to lawyers in other countries. This took us some time as wewished to find out not only about the legal basis of any personal injury case but alsosuch matters as limitation, procedure, how the case might be funded and how evidencewas collected and then presented to the tribunal. There had recently been published areview of damages in European jurisdictions which had been undertaken by DaviesArnold Cooper, but we were more ambitious and wanted to widen our enquiries.

The questionnaire was sent to lawyers in various jurisdictions who very kindlyassisted us in this, the first stage of the work. Their names are amongst those you willfind in the following pages. Armed, now, with a huge amount of information, wefaced the daunting task of trying to put it into some manageable form. The first part ofthe project was undertaken by Neil Cawthorn, the secretary of the Europe SpecialInterest Group, who used part of his sabbatical for the purpose. Without this veryimportant collation of information we would not have been able to take the projectforward.

The next stage was to take what we had achieved so far, check it, add to it, bring itup-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 theUniversity 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 acontinual 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

book to consider how best we may learn from each other; what aspects of each other’slaw and practice we might adopt so that the fairest system possible may be achieved forresolving personal injury litigation. That system should be fair to both sides of thedispute, resolution of which should be achieved at the least cost and delay that isconsistent with justice. I would hope, therefore, that readers may like to address suchmatters as upon whom the burden of proving liability rests, the place of the socialsecurity system in the compensation of those injured in accidents, whether or not asystem of court appointed experts speeds up and advances justice, and how victims ofaccidents may finance their claims. These and many other matters such as the differentlevels of damages in the countries of Europe should form the agenda into the nextmillennium.

Caroline HarmerPresident

Association of Personal Injury LawyersMay 1997

Personal Injury: Practice and Procedure in Europe

ACKNOWLEDGMENTS

The research for this book was initiated by the Europe Special Interest Groupof the Association of Personal Injury Lawyers, and written by Martha WarrenNeocleous.

Grateful acknowledgment is made to the following lawyers for theirinvolvement 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 majorinsurance 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 legaldepartment 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. Shehandles personal injury cases for both insurance companies and private clients, andalso specialises in insurance and employment laws.

ENGLAND AND WALES

Caroline Harmer, Barrister, is President of the Association of Personal Lawyers andwas 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 hasa very strong practice in insurance matters and represents a number of majorinsurance companies.

Leila Lindström is an information service manager of the Finnish Bar Association.

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FRANCE

Dr Peter Marks is a medically qualified Barrister specialising in road traffic accidentcases.

Bruno Paris is Advocat à la Cour in Paris and specialises in personal injury andinsurance laws.

GERMANY

Gustav Duden is a Rechtsanwalt from Mannheim. He handles personal injury casesfor both governmental institutions and private clients.

Dr Petra Schaaff advises and represents her clients in all main areas of civil andcommercial 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 hascontributed over 250 articles to legal journals.

ITALY

Claudio Ceriani is a partner in Ceriani e Minzioni of Milan, a law firm specialising inthe 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 isinvolved 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 alsolectures in civil law at the University of Malta.

Dr Louis Cassar Pullicino is the litigation partner in the law firm Professor JMGanado & Associates and is involved in all types of civil and commercial litigationincluding 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 personalinjury law, insurance law and employment law.

Edward Dijxhoorn is currently a partner in Marree & Dijxhoorn in Amersfoot andhas 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 thepersonal injury litigation department and is an advocate of the use of moderntechnology 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 incharge of the Moscow office.

Lisa Booth is a senior lawyer at Cameron McKenna’s Moscow office whose clientsinclude leading international insurance companies.

SCOTLAND

David Burnside is senior partner with an Aberdeen firm specialising in personal injuryand 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 severalbooks 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. Hehas acted frequently as an expert witness in the UK. He is a regular speaker atinternational conferences and contributor to legal journals.

SWITZERLAND

Dr Caterina Nageli is a partner of a Zurich law firm specialising in personal injurylaw, contract law and company law.

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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

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CHAPTER ONE

A generous and elevated mind is distinguished by nothing more certainly than aneminent degree of curiosity; nor is that curiosity ever more agreeably employed, than inexamining 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. AEuropean holidaymaker injured abroad is a classic case of conflicts of law. The lawyerof such a plaintiff is often at a loss as to how to approach the personal injury law of aforeign jurisdiction. It is to this end that this book has been written. It is hoped thatlegal practitioners will find it a useful reference for cross-border litigation. Academicsand those involved in law reform may find the information interesting from acomparative point of view.

There is always a great deal of debate on the aims and objectives of comparativemethodology. The research undertaken for this book was not meant to be a movetowards harmonisation of practice, procedure or quantum of damages for personalinjury in Europe. Often the differences between jurisdictions have evolved toaccommodate their own particular characteristics. Rather, the strongest argument infavour of comparative methodology seems to be that every system has room forimprovement. 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 theirpresent systems. For example, many countries do not award provisional damages. InSpain, the award of damages takes into account the risk of future foreseeable medicaldeterioration. In contrast, a claim in Denmark can be re-opened at any time andfurther damages awarded, making awards of provisional damages unnecessary.

A comparative approach to personal injury law may be in its infancy but isindisputably the way of the future. In his recent book on comparative law, Peter DeCruz discusses the potential of comparative study:

Surely what comparative law can do is to enable us to look beyond our narrowparochial interests, and illuminate our understanding of legal rules and concepts, toremind us that despite differences in culture, history, law and language, we are all part ofthe 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

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INTRODUCTION

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1 Minor (ed), Boswell’s Life of Johnson I, 1907, Jena, 45, fragment 229.2 De Cruz, P, Comparative Law in a Changing World, 1995, p 491, London: Cavendish Publishing Ltd.

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 SpecialInterest Group of the Association of Personal Injury Lawyers. I was very pleased to begiven the privilege of carrying on with it.

I am grateful to a number of people for their help and support. The following lawstudents worked as my research assistants at the Centre for Legal Studies, University ofSussex: Dina Al Wahabi, Nicola Brant, Anna Vlitas, Rohit Sarobar, Paul Akintundeand Trevor Senkatuka. I also owe a debt of thanks to Linda Gardiner and Louise Tilleyat the Centre for Legal Studies, without whose help in performing administrativeduties, I would never have found the time to undertake this research at all. I amespecially grateful to my husband, Ioannis Neocleous, who worked around the clockon the final drafts and gave us access to his own research on personal injury practice inCyprus. The lawyers throughout Europe who completed our questionnaires andproofread and corrected endless drafts of each chapter are acknowledged separately inthe preceding pages.

We surveyed 15 legal jurisdictions, and there are certainly others which could beincluded in future editions of this book. Ireland, Belgium, Sweden, Norway, Austria,and Portugal, for example, were not included in this project. Moreover, as moreEuropeans become interested in travelling eastwards, there is likely scope for futurestudy of the Czech Republic, Slovenia and other increasingly popular holidaydestinations.

This is just the beginning.

Martha Warren NeocleousCyprus

May 1997


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CHAPTER TWO

LIABILITY

The general standard of care in negligence is that of the reasonable man, with theburden of proof resting on the plaintiff. Particular types of harm include the followingcharacteristics:

• 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 careowed 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 1929which limits liability for international accidents.

• Fatal accidents are governed by English common law principles and the CivilWrongs Act.1 An action will be filed for the benefit of the dependants of thedeceased.2

• Occupier’s liability is covered by the Civil Wrongs Act and is based on a standardof reasonable care.3 The distinctions between contractual licensee, invitee andtrespasser continue to be observed.

• Liability for damage caused by animals is dealt with by the same legislation.4 Thereis an express reversal of the burden of proof, however, so that the burden rests onthe defendant.5

3

CYPRUS

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1 Cap 148, s 58.2 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, aperson treated as a child of the family by the deceased in relation to his marriage, and any personwho is the brother, sister, aunt or uncle of the deceased or child thereof.

3 Cap 148, s 51(1) states that ‘Negligence consists of (a) doing some act which, in the circumstances, areasonable, prudent person would not do, or failing to do some act which, in the circumstances, sucha 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 oroccupation would, in the circumstances, use or take, and thereby causing damage ...’

4 Cap 148, s 54.5 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 thedefendant knew, or must be presumed to have known, had a propensity to do the act causing thedamage, and (b) that the defendant was the owner of or the person in charge of such animal, theonus shall be upon the defendant to show that there was no negligence for which he is liable inconnection with such animal.’

DEFENCES

Contributory negligence offers a partial defence and necessity offers a complete one.The former will therefore reduce the claim proportionately to the degree ofcontribution, while the latter will effectively defeat the claim completely. However, aplaintiff 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 provisionthat would hold the parent liable for the action of his offspring, nor any Cypriot caselaw to suggest there is such a common law duty of care.

A minor or mentally-incapacitated plaintiff can sue in his own right through aguardian and next friend. The court will appoint somebody to act on his behalf and inhis interest if the child is a ward of the court. The legal guardian or guardian ad litem arelikely 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). Inthe case of a legitimate child born during his father’s lifetime, the domicile of origin ofthe child is the domicile of his father at the time of the child’s birth. The domicile ofchoice depends on the individual establishing a home with the intention of permanentor indefinite residence there.8 The domicile of origin prevails so long as the domicile ofchoice 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 No496710 and apply the rules of private international law as laid down by Dicey andMorris.11


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6 Cap 148, s 9.7 Sections 6–11 of the Wills and Succession Law, Cap 195.8 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 wasenacted in 1946 when Cyprus was a British Crown Colony, but today applies equally to soldiers ofthe United Nations and civil servants of other countries who are posted by their governments inCyprus.

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.

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 necessaryto have the writ sealed for service abroad and a court order for substituted service totake place. For road traffic accidents there is no such need for service out of thejurisdiction 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 outof the jurisdiction.

The court will apply the lex loci commissionis regardless of the law of domicile of theparties. Lis alibi pendens may be pleaded as a defence if proceedings on the same subjectmatter and between the same parties are pending in another jurisdiction. The courtmay stay the Cypriot proceedings by applying the balance of convenience test andother relevant criteria.

If the action is brought in one court, neither party has the right to ask that theproceedings be transferred to another court in the same jurisdiction, or to anotherjurisdiction entirely. Each district court is classified according to the financial value ofthe actions and the cause of action involved. A party may challenge the jurisdiction ofthe court, but once it has been decided that the court is seised with jurisdiction to trythe 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 theinter-communal conflicts between the Greek-Cypriot and Turkish-Cypriotcommunities in 1964, and the Turkish invasion in 1974, Parliament stayed thelimitation period in order to allow rights of action against individuals in the occupiedareas (where they are inaccessible) to be maintained.15 There is still a limitation periodof 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 byconsent.

To bring an action against an insured defendant, seven days formal notice must begiven to the insurers from the issue of the writ. Failure to give notice will excuse theinsurer from satisfying a judgment.

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12 Courts of Justice Law, Cap 8, s 25(1) stipulates that every district court has jurisdiction to hear anddetermine all actions where ‘(a) the cause of action has arisen either wholly or in part within thelimits of the district in which the court is established; or (b) the defendant or any of the defendants, atthe time of the institution of the action, resides or carries on business within the district in which thecourt 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).

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 chargeswhich are regulated by the rules of the court.17

Legal expenses insurance

Plaintiffs may not rely on legal expenses insurance. Home contents insurance policiesdo not cover legal costs, and there do not seem to be any special legal insurance policieswhich can be taken out.

Trade unions

Unions are prohibited from assisting a member in either bringing or defending anaction.18

CRIMINAL PROCEEDINGS

Civil damages in criminal proceedings

Criminal courts do not have the power to award orders of compensation to theplaintiff, 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 toinvestigate. The police will only commence criminal proceedings if their investigationreveals that a crime was committed. Proceedings can otherwise be instituted with theapproval of the Attorney General.

Local or foreign criminal proceedings will not interrupt the civil limitation period.


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17 Advocates Fees Rules.18 Champerty.

Cyprus

Release of evidence

It takes approximately three months to obtain police reports. Disclosure may bedelayed by pending criminal proceedings. Copies of statements taken by the police inthe course of their investigations may be made available to interested parties. There is afee 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 convictioncannot be pleaded in the civil court unless the conviction rests on the admission of theaccused. 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 Cypriotlawyers received their training at the English Inns of Court, where the distinctionbetween 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 advertisingtheir services, but information about lawyers who specialise in personal injury can beobtained 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 inpractice, 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 alawyer ex officio for criminal proceedings. In civil proceedings the court will notinterfere, leaving a party with the option of representing himself before the court.

A foreign lawyer will require permission from the Supreme Court to appear beforea Cypriot court.

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19 The cost at the time of writing is C£12.

INSURANCE

Insurance requirements

Insurance is compulsory for motor vehicles.20 Limitations on indemnity apply todamage 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 bythe 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 theinsurance company directly, even where the writ has been served on the defendant’sinsurers 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 ofaccident and the date of judgment.21 The court has a residual discretion, however, toaward 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 aforeign currency where commercial contracts are involved.


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20 Motor Vehicles (Third Party) Insurance Law, Cap 333.21 Section 58A of the Civil Wrongs Act, Cap 148.

Cyprus

Provisional and interim payments

There is no provision for interim payments under the Civil Procedure Rules. They aremade only very rarely on compassionate grounds at the discretion of the defendantinsurer.

Provisional damages are not used. Once a case is settled or adjudicated it cannot bereopened. The possibility of future deterioration of health is taken into considerationwhen calculating the damages initially. Compensation for the likelihood of this risk hasalready 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 beclaimed for the benefit of the parents of the deceased.22 The sum awarded is C£6,000at the time of writing.23

Level of damages

The publications used in Cyprus which detail and update levels of damages areprimarily 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 isrestitutio in integrum, ie restoring the plaintiff to the position he would have been in hadthe injury not been sustained. Despite this, quantum has until recently remainedremarkably low.

In the last three years, the Supreme Court judges have started making reference tothe enhanced value of human life, pain and suffering, and there has been an overallincrease in the quantum of damages awarded for all types of personal injury. Theresponse to this new judicial liberalism was an increase in insurance premiums ofapproximately 30% in 1995.

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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.

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 ofspecial 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 companyconcerned should be sent within seven days of the filing of the writ.26 Cross-borderservice requires leave of the court, which can be obtained to serve notice of the writ onthe defendant out of the jurisdiction if the defendant resides out of Cyprus and the writcannot 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 bevicariously liable for the act of the defendant. If more than one person is responsible forthe injury to the plaintiff, they can all be joined as defendants in the same action. If oneof more defendants appeal, only his liability is retried. The rest of the judgment againstthe 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 fordirections stage of proceedings which takes place after the pleadings have closed. Theaverage time from the commencement of civil proceedings to the court hearing isbetween 6–12 months.

Evidence

A local lawyer should be instructed from the outset, as the police will only giveinformation to a lawyer and to the insurance company concerned.

The Cypriot legal system is adversarial in nature. The onus is therefore on theparties to a civil action to obtain their own evidence.


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26 Cap 333, s 10.

Cyprus

Patients do not have a legal right to medical records or details of treatment. Amedical report will be made available for examination on payment. A hospital willprovide a medical report on application by a lawyer to the lawyer or the patient. Thecourt 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 byway of written documents if both parties consent. Witnesses can be compelled bysummons to attend court to give evidence.

A party can be compelled to disclose his evidence by discovery. Consent of theparties is needed to submit sworn depositions by the parties and witnesses who resideoutside the jurisdiction.

Settlement procedures

Defendants can make a payment into court before a case is heard. This can beadvantageous in respect of costs, in that costs are not awarded against a defendant whomakes a payment into court if the plaintiff fails to obtain judgment for an amount largerthan that paid into court.

ENFORCEMENT PROCEEDINGS

Enforcement procedures include writs of fieri facias which direct the sheriff to seize andsell all the defendant’s movable assets, attachments for physical internment of thedefendant, 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 carriedout through the courts. Enforcement is likely to be a problem where the defendant isinsolvent. Interim orders can be enforced by imprisonment or attachment.

Cross-border enforcements are only possible if a bilateral agreement between thecountries is in force.

COSTS

The losing party generally pays the winner’s costs. If a foreign and a local lawyer havebeen involved, the costs of both solicitors can be recovered from the losing party.

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CHAPTER THREE

LIABILITY

In general, negligence is fault based (culpa) with a standard of care based onreasonableness.1 The burden of proof rests on the plaintiff. Particular types of harminclude 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 andemployment prospects, and the general disability caused by the accidents.3 Claimsfor pain and suffering and lost, past earnings require proof of the employer’snegligence.

• Medical negligence is governed by legislation for patient insurance, imposing astandard of care for doctors based on the reasonable practice of his peers. It iscovered by a compulsory liability insurance scheme via the private-insurance-poolsystem.

• Product liability is now governed by a no-fault scheme in accordance withEuropean 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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DENMARK

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1 For an excellent introduction to Danish accident compensation and tort law, see von Eyben, B, ‘TheDanish 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; andNorgaard, J, ‘Torts and Insurance in Danish Law’, in Danish Law in a European Perspective, 1996, Ch11.

2 Objektivt Ansvar.3 Article 3-19-2 of the Danish Code.4 Danish Act on Product Liability 1989, enacting Council Directive 1985.374.5 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 1683.6 Act No 225 of 6 April 1994.7 These are the Railway Damage Compensation Act 1921, and Law of Aviation 1960, respectively.

DEFENCES

Available defences include self-defence, consent and contributory negligence. Generallythe defence of contributory negligence only reduces the compensation payable to theplaintiff. If the plaintiff is considered to have acted entirely at his own risk, he can be100% contributorily negligent and his claim will be ousted.


Minors can be held liable from the age of five. Parents are not liable for the acts ofminors unless they were negligent themselves.

A minor cannot sue as a plaintiff in his own right. The court will appoint someoneto 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 ownaffairs, a guardian will be appointed by the court.

JURISDICTION

Place of domicile is defined as being the place where a person stays and lives withoutintending to return somewhere else.8 If the accident happened in Denmark and thedefendant is domiciled elsewhere, proceedings will be commenced in either the placeof domicile of the defendant or the place of the accident.

Neither party alone has the right to ask for the proceedings to be transferred toanother court. For example, the defendant cannot normally ask for the proceedings tobe transferred from the place of the accident to his domicile, but the parties can agreethat the case should be transferred to another court. According to Danish privateinternational law, the law of the place of the accident must be used before the Danishcourts, unless both parties are Danish and live in Denmark, even though the accidenthappened in another country.

LIMITATION PERIODS

The general limitation period in civil law is five years from the date of the accident. Ifthe tortfeasor cannot be found or there is a delay in actually suffering the damage, thelimitation period will run from the date of knowledge of the damage.9 Danishinsurance companies are allowed to invoke a limitation period of two years from theexpiry of the year in which the plaintiff learned of the damage. The limitation period


14

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8 Animus revertendi in accordance with the Brussels Convention 1968.9 This is referred to as a suspension of the limitation period.

Denmark

for accidents caused by some animals is 20 years from the dated of the accident.10 Casesof product liability include a three year limitation period, while cases of medicalnegligence operate with a limitation period of 10 years.

The commencement legal proceedings or recognition of liability by the defendantwill interrupt a limitation period.

The parties can agree to extend the limitation period by consent to no overallmaximum. 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 amental patient.

FUNDING

Legal aid

The financial circumstances of the applicant is the main criterion for eligibility underthe Danish legal aid scheme. No contribution is expected by the applicant towards hiscosts.

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 tothe same rules applied to residents. Applications are sent to the Civilretsdirektoratet. Toqualify for legal aid, the applicant must earn under DKK 185,000 per year and have agood 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 hasno right to recoup its expenses from the damages awarded to the plaintiff where thedefendant is unable to pay costs.

Contingency fees

Danish lawyers are prohibited from working on a contingency fee basis. They calculatetheir charges based on the type of work involved and the amount of time spent on it. Ifa case is settled out of court, the lawyer usually charges two-thirds of what he wouldhave charged had the case gone to court.


Legal expenses insurance is available as part of other policies such as householder’s

15

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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.

insurance.11 These are becoming increasingly popular.12

Trade unions

Unions will assist members in either bringing or defending an action if the claiminvolves an accident at the workplace.



Danish criminal courts have the power to award compensation to the plaintiff on hissubmission of a formal claim. The police are obliged to ask the plaintiff if he would liketo file a claim.

As similar to civil awards, the criterion for assessment of criminal damages is theinjury itself. If the defendant is unable to pay, the State will usually not paycompensation. In a very few cases of violence, a small amount of compensation may beoffered.13 The board has redress against the defendant. It will not investigate a casedirectly 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 beingmade if the Danish Criminal Act 1930 gives specific rights to do so in those particularcircumstances.


The police are not always called when a person has been injured, and will notautomatically start to investigate. If they are called to the scene of an accident, they willstart criminal proceedings if they feel it is warranted.

The police will often reconstruct an accident, especially serious motor vehicleaccidents. There are no other bodies which must be informed when a person has beeninjured.

Release of evidence

The police will usually make their evidence readily available by formal request. As soonas 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.



16

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13 Including cases of rape.

Denmark

A strong division between civil and criminal proceedings has been maintained in casesof personal injury, with neither bearing much influence evidentially or procedurally onthe other. A criminal conviction cannot be pleaded in the civil court. Criminalproceedings do not interrupt the civil limitation period unless they occur in a foreignjurisdiction.14


The Danish compensation board for criminal injuries is called theVoldsoffererstatningsnaevnet.


There is no distinction between solicitors and barristers in Denmark. Lawyers do nothave the right to call themselves specialists in the field of personal injury. Danishlawyers are allowed to advertise the fields in which they practice as long as they do notclaim to be specialists or have special expertise in these areas. There is no association ofpersonal injury lawyers, but information can be obtained about lawyers who specialisein personal injury from the Danish Law Society.15

Danish lawyers have rights of audience in the courts of first instance all over thecountry, including the Faroe Islands and Greenland.

Where a person is legally aided, the only restriction on choice of lawyer is that hemust be well regarded. If a lawyer cannot be found who is willing to act under the legalaid scheme, the court will appoint a lawyer ex officio.

INSURANCE


There are limitations on indemnity, in cases of road traffic accidents16 and aeroplanecrashes, set by the Danish Road Traffic Act and the Warsaw Convention 1971respectively.17


17

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14 Sometimes criminal proceedings in the Scandinavian countries will interrupt the limitation period.15 Advokatsamfundet.16 50 m Danish crowns (DKK).17 100,000 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 isapproximately equal to DKK 8.33.

In some cases the defendant’s non-compliance with the terms of the insurance contractwill have no impact on the insurer’s obligation to pay. For example, since car insuranceis for the car itself rather than the driver, it will not matter whether there has been abreach of the terms of the insurance agreement. Furthermore, it is impossible to own acar without insuring it in Denmark.

If the defendant is not known, a special body will pay compensation to theplaintiff.18 It should be formally notified of the proceedings by letter.


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 orthe body which administers the workers’ compensation scheme.20

DAMAGES

Heads of damage

Heads of damage include temporary loss of earnings, pain and suffering, permanentinjury, permanent loss of earning capacity, compensation for loss of support, andcompensation for humiliation.

Interest

Interest accrues on damages from the date of the injury.21


Damages are usually awarded in a lump sum.


Interim payments are awarded where a claim will take some considerable time tofinalise. The plaintiff must make a reservation for the full amount of his claim at thistime. Sometimes insurers will make an interim payment on a voluntary basis to avoid


18

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18 Dansk Forening for International Motorkoretojsforsikring (DFIM), in accordance with Circular No 241 of8 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%.

Denmark

proceedings for the amount which can be assessed at that time, and to save interest onhe 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 atany time without any kind of agreement having to be made. If the plaintiff develops aside-effect or suffers an unforeseeable deterioration of his condition in the future, afurther claim can be made.

Punitive damages

Punitive damages are not awarded very often, but may be used by the courts where thetortfeasor has acted with extreme carelessness.

Bereavement damages

Bereavement damages are available to spouses and children of the deceased. Theamount available to spouses is 30% of the amount the deceased would have gained hadhe lost 100% of his ability to work. Despite this, the amount will be at least DKK331,000. Bereavement damages payable to children amount to approximately DKK9,000 per year until the child is 18 years of age. In certain cases, the parents of thedeceased 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 ofincapacity suffered by the plaintiff. The percentages are fixed by a normative table.22 In1996, permanent injury of 100% was valued at DKK 302,000.23 Damages for pain andsuffering 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 normallycapped at approximately DKK 40,000.

Certain minimum thresholds exist. For example, no damages are payable forpermanent injury of less than 5%, and no compensation for loss of earnings is payablefor permanent loss of earning capacity of less than 15%. There are also some maximumthresholds. For example, the maximum amount of damages payable for lost earnings iscapped at DKK 528,500 per year.

Where a claim is likely to render an award of damages of less than DKK 10,000 itmay not be worthwhile for the plaintiff to proceed. Many plaintiffs carry ‘trial loss’

19

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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.

insurance, however, which will cover the costs of taking such cases to court.


The Danish courts are, comparatively speaking, conservative in awarding damages sincethere is a comprehensive social welfare system in place. The Danish Liability Act198425 provides a standard set of regulations for the assessment of damages to beawarded to the plaintiff.26 Updated levels of personal injury compensation are legislatedby Parliament. The Danish Law Society details levels of damages twice a year in themembers’ magazine.

Damages are not usually awarded in a foreign currency, but the amount ofcompensation required by a plaintiff in a foreign jurisdiction can be assessed accordingto the costs of his needs in that jurisdiction, and then converted to Danish crowns.


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 againsttortfeasors for sickness allowances. These will have been paid by social services from thetime of the accident, or three weeks after the accident, where the victim had been inthat particular employment for 13 weeks. The employer is, however, obliged to paythe employee sick leave for the first three weeks of illness or incapacity. Only after thatperiod 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 ofdamages 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 thedeductions of benefits from the damages awarded, and so litigation is rarelyworthwhile.27

Work-related injuries causing short-term incapacity do not include indemnificationfor loss of income above a fixed level. Injured employees retain an incentive, therefore,to sue for damages.

PROCEDURE


Service


20

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25 Act No 228 of 23 May 1984.26 Erstatningsansvarsloven.27 Von Eyben, note 1 above, p 245.

Denmark

A claim is initiated by writing to the defendant and, if he is insured, to his insurer aswell. Once the defendant has refused to assume liability, a writ is issued. It is notnecessary to instruct a local lawyer at the outset, as a foreign lawyer can carry out theinitial requests for information from the authorities investigating the accident.However, the issuing of a writ in Denmark and assistance in a Danish court case willalmost always require Danish legal counsel.

Local service of proceedings is carried out by the court. If both parties have legalrepresentation, it will usually be agreed that no service of proceedings is needed. Whenthis happens, the writ will be sent to the court with a note that the parties agree that noservice is necessary, and the court will return the writ to the plaintiff’s lawyer after adate and time for the first hearing has been set. The plaintiff’s lawyer then notifies thedefendant’s lawyer of this, along with the original writ for his notation on thedocument itself, confirming that service of proceedings is unnecessary. The originalwrit is then returned to the plaintiff’s lawyer who presents it in court at the firsthearing.

Cross-border service is governed by the Hague Convention.28

A defendant can bring a third party into proceedings by issuing a separate writ. Aplaintiff 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 morethan one tortfeasor, they can all be joined as defendants in the same action. If only oneof 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 onhow to proceed with the case. The parties have full control of the proceedings whichusually 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 notnormally recognise expert independent witnesses and experts, however. The partiesshould agree on the expert testimony to be presented to the court. The court will onlyinterfere if they fail to do so.

21

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28 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil orCommercial Matters 1965.

29 Act on Public Access to Administrative Files 1993.

There is a statutory right in Denmark to see one’s own medical records.29 Theywill usually be released directly to the lawyers.

Witnesses

Witnesses normally give their evidence in person rather than by way of writtendocuments or sworn depositions, and can be compelled to attend court by policeescort.


There are no payments into court by the defendant before a case is heard.


Both interim orders and final awards of damages are enforceable.

Enforcement is likely to be a problem where the defendant has no money orcannot be found. It is up to the parties to seek enforcement. Enforcement proceduresare generally carried out through the sheriff’s office. The cost will be DKK 300 plus0.5% of the amount above DKK 3,000, payable as a court fee. The cost of lawyers’ feeswill be additional.30

Cross-border enforcement is governed by the Brussels Convention31 and theHague Convention.32

COSTS

The losing party generally pays the winner’s costs as set by the court in determining theaward. 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 aidis the lawyer forbidden to charge more than the costs set by the court. When a case issettled out of court, the parties usually carry their own costs.

The costs of a foreign lawyer are unlikely to be recovered. However, there are nostrict rules on this.


22

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30 For further details see Richardson, J, Debt Recovery in Europe, 1993, Chapter 5, London: KPMG PeatMarwick.

31 See note 7 above.32 See note 21 above.

CHAPTER FOUR

LIABILITY

Most cases are brought in negligence, where the standard of care is that of thereasonable 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 aduty of care to provide a safe system of work based on reasonable practice, and byduties 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 thatthe defendant acted outside normal medical practice.2

• Fatal accidents are governed by a fault-based regime.3 The burden is on the plaintiffto prove that the defendant’s negligence caused the death and financial loss to thedependants of the deceased.

• Consistent with the EC Directive on Product Liability, this area is governed by astrict liability regime, subject to certain defences.4

• Occupier’s liability is based on a standard of reasonable care under both statute andcommon law.5

• Accidents caused by animals are based on both fault and strict liability, dependingon the category of animal.6

• Environmental accidents are governed by both common law and statute and basedprimarily on fault. The burden of proof is on the claimant to show fault in eithernuisance 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 aregime of strict liability, and the Warsaw Convention 1929.

23

ENGLAND AND WALES

__________________________________________________________________________________________________________________________________________

1 For example, Wilsons and Clyde Coal Co Ltd v English [1937] 3 All ER 628, HL, and regulationsintroduced following the EC directives on health and safety in the workplace. There is strict liabilityimposed on employers for injuries caused by defective equipment.

2 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.3 Fatal Accidents Act 1976.4 85/374/EEC and Consumer Protection Act 1987.5 Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984.6 For example, the Animals Act 1971, Dangerous Dogs Act 1991 and Occupiers’ Liability Acts 1957

and 1984.7 Cambridge Water v Eastern Counties Leather plc [1994] 1 All ER 53.

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 ofcausation, foreseeability or remoteness of damage. Most defences will oust the injuredperson’s claim, but contributory negligence will reduce the compensationproportionately.


A person under 18 (a minor) who is a defendant can be held liable at any age. He issued through a parent as guardian. The parents of the minor will only be held liable forhis 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 nolegal guardian (or ‘next friend’) for the minor. The court must then appoint one forproceedings to be commenced.

In the case of a plaintiff of any age who is mentally incapable of conducting hisown affairs, the court of protection will appoint a next friend to bring the action or askthe official receiver to intervene on behalf of the person.

JURISDICTION

If the accident happened in England or Wales and the defendant is domiciledelsewhere, proceedings must be commenced in either the place of domicile of thedefendant or the place of the accident. Place of domicile is defined as being the placewhere 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 theaccident must be used before English courts, unless both parties are from there and livethere, even if the accident happened in another country.9 Either party has the right toask 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 dateof damage, which is generally the date of the accident, or from the date of knowledge


24

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8 Animus revertendi, Brussels Convention 1968.9 Private International Law (Miscellaneous Provisions) Act 1995, Part III.

England and Wales

of the injury, the identity of the defendant and that it was attributable to an act oromission of the defendant.10

The parties can extend the limitation period by consent if the defendant waives hisright to rely upon it as a defence. The defendant may do so by either he or his insurerexpressly 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 itappears equitable having due regard to the degree to which the limitation periodprejudices the plaintiff or any person whom he represents, and the degree to which thedecision of the court to extend the limitation period would prejudice the defendant orany person he represents.11

If the plaintiff was under 18 at the time of the accident, the limitation period doesnot start until he or she reaches the age of 18. If the patient was a mental patient at thetime, or as a result, of the accident, the limitation period will start from when mentalincapacity ceases.

The limitation period can be interrupted by the death of the injured person beforethe expiration of the limitation period.12 The time limit for the causal action for theestate of the deceased is three years from the date of death, or from the date of thepersonal representatives’ knowledge, whichever is later.13

FUNDING

Legal aid

Subject to eligibility, legal aid is available to a plaintiff to pursue a personal injury actionif the claim is worth more than £1,000. In order to qualify for legal aid, the plaintiffmust satisfy both a means and merits test. He must therefore be financially eligible andalso show that he has reasonable grounds to take the action. If a person qualifies forlegal aid, there is often a contribution payable which will be calculated on the basis ofthe plaintiff’s means.

Legal aid certificates are generally granted up to a financial level, at which pointfurther application must be made to extend them.

If a legally-aided plaintiff wins the case but the defendant does not pay all theplaintiff’s costs, the Legal Aid Board is entitled to recoup its expenses from the damagesawarded to the plaintiff.

25

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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. Forexample, 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 hadbeen brought in time.

12 Law Reform (Miscellaneous Provisions) Act 1931.13 Section 1 of the Law Reform (Miscellaneous Provisions) Act 1931.

Legal aid can be obtained for actions outside the jurisdiction on the same basis asproceedings within England and Wales. In practice, it is more difficult as, inter alia, oneis expected to apply for legal aid in the country in which the applicant wants to bringproceedings.

Contingency fees

Lawyers are allowed to operate on a limited conditional fee basis.


Legal expenses insurance is increasingly relied upon by litigating parties. Some homecontents insurance policies offer assistance with legal expenses.

Trade unions

Unions will often assist a member in either bringing or defending an action, dependingon union rules.



The criminal courts of England and Wales have the discretion to award criminalcompensation 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 bededucted from any civil claim.


The police are not always called to the scene of an accident. Under s 170 of the RoadTraffic Act 1988, however, the driver must stop and provide his name and address, andproduce a certificate of insurance to anyone having reasonable grounds for requiringinformation. If he fails to provide this information at the time of the accident, he mustreport the accident and produce a certificate of insurance to the police as soon as ispractically possible, and in any case, within 24 hours of the accident.

The police will only reconstruct an accident in exceptional circumstances wherethere has been a criminal offence and they are looking for witnesses.

The police do not automatically commence proceedings, but if they consider thematter suitable for prosecution they will pass the file to the Crown Prosecution Servicewho will conduct the prosecution.


26

England and Wales

Criminal proceedings do not interrupt the civil limitation period, and neither willprosecution in a foreign jurisdiction. If the accident happened in a foreign jurisdiction,the English courts apply the foreign limitation period (Foreign Limitation Periods Act1984, s 1).

Release of evidence

In practice, the police will prepare a report where there have been injuries, especiallyfor road traffic accidents. The police will make their report available to the solicitor fora prospective plaintiff for a fee. It is also possible to interview the police officer whoattends the scene of the accident for an additional fee. The police report will usuallyonly be made available after criminal proceedings have been concluded, or the policehave made a decision not to prosecute.


A criminal conviction may be pleaded in the civil court. The effect will be to reversethe 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 thefacts on which the criminal conviction was based.


The Criminal Injuries Compensation Authority may pay compensation to a plaintiffinjured as a result of certain road traffic offences.


Lawyers in England and Wales have the right to call themselves specialists in the field ofpersonal injury if they are approved by the Law Society and have satisfied certainprofessional criteria. They may advertise their services. Information about lawyers whospecialise in personal injury can be obtained from the Law Society and from theAssociation of Personal Injury Lawyers.

Barristers and solicitors both have rights of audience in all lower courts of firstinstance (county courts) in England and Wales, and there is no limitation in respect ofthe 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 arerestricted.

Where a person is legally aided there are, in theory, no restrictions on choice oflawyer. In practice, however, there are lawyers who do not undertake legal aid work. Ifa person cannot find a lawyer willing to act under the legal aid scheme, the OfficialSolicitor to the Supreme Court can act for people who cannot legally act for

27

themselves (ie people under 18 years or who are mentally ill) and only then after ajudge has agreed that the person’s rights cannot be safeguarded without his help.

INSURANCE


Insurance is compulsory for road traffic accidents, employers’ liability and aeroplaneaccidents. There are some limitations on indemnity. For example, the Road Traffic Actrequires insurers to provide unlimited cover for liability in respect of injury to allpersons 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 isrequired is when a vehicle is taxed, and proof at that time is only that the vehicle isinsured for the day the tax is due. Where a vehicle has registration plates of another EUcountry, or a country which is a signatory to the multilateral guarantee agreement ofthe green card system, such vehicles are deemed to be insured by the green card bureauof the country in which they are being used. Any damage caused by such a vehicle willbe paid for in accordance with the minimum insurance requirements of the RoadTraffic Act. However, it is considered that the regular use of a foreign registeredvehicle would be noted by the police, although the movement of these vehicles isdifficult to monitor, particularly as there are open borders. In such a case, the MotorInsurers’ Bureau may provide compensation to the plaintiff on formal notification ofthe claim by letter.15


Where the defendant omits to take out insurance cover, the plaintiff may not be paidby the insurer. In road traffic accidents, the Motor Insurers’ Bureau will satisfy anyjudgment against the uninsured defendant provided notice of proceedings is givenwithin seven days of commencement of proceedings, and the judgment remainsunsatisfied for seven days. It is also possible to receive compensation from the MotorInsurers’ Bureau where the driver of the vehicle that caused the accident cannot befound.


Proceedings cannot be brought against the tortfeasor’s insurer directly. In the event thatan action against the tortfeasor is successful and an insurer fails to meet its obligations


28

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14 Section 145(4)(b) of the Road Traffic Act 1988.15 Uninsured Drivers Agreement dated 21 December 1988.

England and Wales

under the terms of s 152 of the Road Traffic Act 1988, then the judgment may beenforced against the insurer directly. Formal notice must be given to the insurers tosecure the insurance cover.16 If the defendant is in breach of terms of his insuranceagreement, the plaintiff will be protected by the provisions of the Road Traffic Actwhich precludes an insurer avoiding his obligations under the Act, even where thevehicle 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 thefollowing:

• General damages. This includes past, present and future pain and suffering causedby 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 loss19 as well as increasedexpenditure caused by the accident.20

• Property damage. This includes damage to a motor vehicle and loss consequentialthereon.

• 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 ofemploying a carer.

• Future losses. This includes loss of future earnings, loss of earning capacity, the costof future care, and future expenses.

Interest

Interest accrues on damages at the discretion of the court. Interest on special damagesaccrues 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 ondamages for future loss.

29

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16 Section 152(1)(a) of the Road Traffic Act 1988 provides that notice of the commencement ofproceedings 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%.


Damages are usually awarded by way of lump sum. Recently structured settlementshave been developed whereby periodic payments are made from an annuity purchasedfrom the lump sum damages. These have tax and other advantages. Damages can onlybe awarded in this form by agreement of the parties, as the courts have no power toimpose a structured settlement on a plaintiff.


The courts will award interim payments where it will take time for an award to befinalised.

Provisional damages may be awarded where there is a risk of a serious deteriorationin the plaintiff’s condition sometime in the future.22 The plaintiff may return for afurther amount if this happens.

Punitive damages

The courts do not generally award punitive (referred to as exemplary) damages inEngland and Wales, but may award aggravated damages.

Bereavement damages

Bereavement damages are available to the spouse of the deceased, and to some otherfamily members such as the parents of children under 18 years of age at the time ofdeath.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 proceedwith 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.


30

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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 LitigationServices, Personal Medical Injuries Lawletter and Current Law (Sweet and Maxwell).

England and Wales


The guiding principle for assessment of the quantum of damages to be awarded isrestitutio in integrum, ie restoring the plaintiff to the position he would have been in hadthe 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 anysettlement once proceedings are instituted.


Reimbursement to the State of some of the benefits paid to the plaintiff as aconsequence of the accident is made by the compensator (the defendant) to theCompensation Recovery Unit. This system is currently under review.

Employers have no statutory obligation to pay salary during incapacity, althoughsuch an obligation may exist in the contract of employment. They have an obligationto pay statutory sick pay.

PROCEDURE


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 within14 days together with a medical report and a schedule of special damages. The writitself must be served within four months of issue and can be served personally on thedefendant, or by first class post, or through a letterbox. Other documents may beserved 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 withparticulars of a claim, a medical report and a schedule of special damages; the court thenusually serves the summons by post.

There are special rules for cross-border service of proceedings, depending onwhich, there is an international convention in force. Either a specific civil procedureconvention dealing with service of court documents or the Hague Convention25 willusually apply.26

If more than one person is responsible for the damage to the plaintiff they can all bejoined as defendants in the same action. This will sometimes require the leave of the

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26 Supreme Court Practice Order 72.

court. The defendant may bring in a third party by issuing third party noticeproceedings after giving his own notice of his intention to defend. No leave is neededto issue the notice unless the defence has been served, in which case the defendantmust seek leave by an ex parte application. If one defendant appeals, that defendant’sliability will be retried.

Level of court

Cases are heard in the county court or the High Court, depending on the value of theclaim and the complexity of the case. Cases valued at less than £50,000 must becommenced in the county court and will be tried there, unless they are of particularimportance or complexity.

Cases valued at an amount greater than this may be commenced in the HighCourt, and will be tried there unless they are so straightforward as not to merit trial inthat forum.

Court management

The average time from commencement of proceedings to the hearing is difficult todetermine, and will depend on the complexity of the case and the injuries involved. Asthe 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 fromclose of pleadings unless a hearing date has been applied for. In personal injury casesthere 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 noticehas been issued. In these circumstances, there will be a pre-trial review to deal withdirections. These rules are currently under review.

Automatic directions require that discovery, exchange of expert witness reports andexchange of witness statements be done without a formal order from the court, withina set period of time after close of pleadings.

Evidence

The legal system in England and Wales is adversarial in nature, and the respective legalrepresentatives of the plaintiff and the defendant are responsible for obtaining evidenceand instructing any experts.

In principle, a foreign lawyer may obtain details from the authorities investigatingthe accident, but for practical reasons it is advisable to instruct a local lawyer from theoutset.

Where criminal proceedings are being considered, or indeed being brought, it willnot be possible to obtain copies of the full police report until the criminal proceedingsare concluded.


32

England and Wales

Patients have a statutory right of access to their own medical records held incomputerised form, or on paper since November 1991. Records may be released to theplaintiff’s solicitor. The court is empowered to grant orders for the release of medicalrecords.

Witnesses

At trial, much evidence is given in written form, although witnesses and experts willoften 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 forcollecting and presenting the evidence.

Witnesses can be compelled to attend court by subpoena in the High Court andwitness summons in the county court. Parties are compelled by legislation to disclosetheir documentary evidence and witness statements (known as discovery).27 As well asdiscovery during the course of an action, a prospective party to an action can obtainpre-action disclosure of a document against someone who is likely to be a party to anaction. This is frequently used in medical negligence cases for the purposes ofinvestigating liability.


The defendant may make a payment into court in respect of damages at any timebetween service of the proceedings on the defendant and the date of the trial. Such apayment does not prejudice the defendant’s right to continue his defence. If theplaintiff refuses to accept payment, the case goes to trial and, if the plaintiff is notawarded a higher sum, he will pay both his own and the defendant’s costs from thedate of the payment into court.


As most awards of damages are paid by insurance companies, enforcement of the awardis not generally a problem; however, enforcement of any costs order may be. It is up tothe parties to seek enforcement of an award or interim order, although it will be carriedout through the court by various methods including sale of the defendant’s moveablesby bailiffs or the sheriff’s officer.28

The rules for cross-border enforcement are governed primarily by internationalconvention.29 A certificate of judgment should be obtained from the court by

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27 For example, RSC Order 25 regarding the disclosure of medical evidence and Order 28 regardingthe 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.

application to the central office or the district registry in which the judgment wasobtained. The judgment will have to be registered in the enforcing jurisdiction.

The cost of enforcement procedures will depend on the nature of the enforcementand the outcome.

COSTS

Where the plaintiff is successful in his action, the defendant will generally be ordered topay his costs. If the plaintiff is unsuccessful he will be ordered to pay the defendant’scosts. If the case settles out of court, it is usual to agree that the successful party’s costswill 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 theplaintiff loses he is unlikely to be ordered to pay the defendant’s costs. His own costswill be paid by the Legal Aid Fund, although at a fixed, hourly rate. This is a lowerhourly rate than he would have obtained from the other side.


34

CHAPTER FIVE

LIABILITY

There is no concept of common law or legal precedent in Finland. Claims are basedpurely 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 environmentalaccidents.

There are no special rules for fatal accidents.

DEFENCES

The defences which can be raised include contributory negligence, intervening acts ofthird 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 otherswill act as complete defences, ousting the claim entirely. For example, a plaintiff maybe found to be 100% contributorily negligent.


If the defendant is under 18 years of age he will be liable for an amount which isdeemed reasonable considering his age and behavioural and intellectual development,the nature of the act, his financial circumstances and those of the plaintiff.1 The parentsof the minor may be held liable if it is proved that they have been negligent in theirsupervision of the child.

A minor cannot sue in his own right. He will be represented by his parents orguardian as a plaintiff. If there is no guardian, or there is a conflict of interest betweenthe minor and his guardian, the court will appoint a trustee to act on his behalf. Wherethe plaintiff or defendant is not mentally capable of conducting his own affairs, a

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FINLAND

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1 Chapter 2, s 2 of the Damages Act. Vakingonkorvauslaki.

guardian will also act on his behalf.

JURISDICTION

According to the rules of Finnish private international law, the law of the place of theaccident must be used before the Finnish courts where domicile of the defendant andplace 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 underthe Population Records Act.2 It will usually be the place in which he is permanentlyresident.

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 ispossible in some circumstances, however, to commence proceedings in the place ofaccident.3

If an action is brought in one court, neither party has the right to ask for theproceedings to be transferred to another one.

LIMITATION PERIODS

A claim becomes statute barred after the general limitation period of 10 years haselapsed. Shorter limitation periods apply in special cases, however.4 Limitation periodsstart to run from the date of the accident or the date of the plaintiff’s knowledge of theinjury. The parties cannot normally extend the limitation by consent and neither canthe courts.

The limitation period may be interrupted by police investigations, civil proceedingsor the provision of an accident report to the insurers.

There are no special rules on limitation where the plaintiff is a minor, or a mentalpatient.

FUNDING

Legal aid


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2 Kotikuntalaki.3 For example, in the case of a road traffic accident.4 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 twoyears for aeroplane crashes.

5 Maksutou oikeuden kayuti.

Finland

The Finnish legal aid scheme is not run by a legal aid board. Instead, cost-free trials aregranted on application to the court.5 Legal aid is available for an action outside thejurisdiction. 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 meetthe remaining costs himself.

There is no prescribed limit to which legal aid will fund. All necessary expenses aremet. If the defendant cannot satisfy an award and costs against him, the court will notbe 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 fixedlevel of charges, nor do they charge by the hour. Charges are calculated on the basis ofwork involved in a case, the degree of complexity and the client’s interests.


Plaintiffs are sometimes supported by legal expenses insurance. Some home contentsinsurance policies will assist with legal actions. The extent to which they will assistdepends on the terms of the insurance policy. Generally, there is a 15% excess or aminimum of FIM 1,200 payable by the insured, and a maximum of FIM 50,000 to becovered by the insurance company. There are some special legal insurance policiesavailable.

Trade unions

Unions do not assist their members in bringing or defending an action.



There are no separate courts for criminal and civil proceedings in Finland. In Finnishcriminal proceedings, the courts have the power to award orders of compensation tothe 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 awardingof criminal damages prevents a civil claim being made altogether.


37

The police should always be called when a person is injured. When they are called theywill automatically start to investigate. Criminal proceedings will commenceautomatically if a criminal offence has been committed.

The police will reconstruct an incident on rare occasions and only where theaccident was very serious. There are no other bodies which have to be informed ofaccidents.

Release of evidence

The prosecution and police will readily make their evidence available to the plaintiff’slawyer after the investigation has been completed. The evidence may be obtained byformal request for a fee. The cost will depend on the extent of the evidence, but isusually nominal. It generally takes about two weeks to obtain police reports providingthe case is not overly complicated.


Not applicable.


If the defendant is unable to pay the state will pay compensation to the victim via thecriminal injuries compensation board.6 It has redress against the defendant. If theprosecution is successful the board will pay the costs of the victim’s lawyer of hischoice. The board does not make it a condition that it has the right to nominate thelawyer.


There is no distinction between solicitors and barristers in Finland, and lawyers inFinland have rights of audience in all the courts in the country.

Finnish lawyers may advertise their services. In principle, lawyers have the right tocall themselves specialists in the field of personal injury. There do not seem to be anypublicly referring to themselves as such at present, however. There is no association ofpersonal injury lawyers.


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6 Rikosvahinkolautakunta.

Finland

Where a person is legally aided, there is no restriction on choice of lawyer. Thecourt will not appoint a lawyer ex officio if a person cannot find a lawyer willing to actunder the legal aid scheme.

INSURANCE


Insurance is compulsory in the areas of road traffic accidents, employer’s liability andmedical negligence. There are some limitations on the indemnity.7


Where the vehicle is uninsured or the defendant is unknown, the Finnish MotorInsurers Association will pay compensation.8

If the defendant omits to take out insurance cover, or is in breach of the terms ofhis insurance agreement, the plaintiff will not be paid by the insurer. One exception tothis rule is where the driver of a motor vehicle had a blood-alcohol content of 1.50/00or more at the time of the accident. In these circumstances the insurer will pay thecompensation to the plaintiff, unless he was a passenger in the defendant’s care andknew, or ought to have know, of the driver’s condition.


The defendant’s insurance company will normally be sued directly. The usual sequenceof 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 isdissatisfied with the amount of compensation, he will then resort to an appealprocedure 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 andmedicines.

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7 For example, in the case of drunken drivers.8 Liikennevakuutuskeskus.9 Sometimes referred to as disability pension.

• Loss of income.9 This includes fringe benefits, holiday compensation and futureraises in salary according to expected career development.

• Decrease in income. Should the plaintiff return to work or find lower-paidemployment, the difference between this and his former income will becompensated.

• Delayed income. This is compensated where the plaintiff was a student at the timeof the accident and employment opportunities were delayed due to his injuries.

• Rehabilitation. Both medical and vocational rehabilitation are compensated underthis head, and include alterations to accommodation and necessary auxiliarydevices.

• Pain and suffering.10

• Permanent defect and handicap. There are 20 disability categories under this headwhich 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 dailyfunctions, and is sub-divided into four categories of compensation.

• Clothing allowance. This will be granted to a plaintiff who must use some auxiliarydevice due to his injuries, which causes his clothing to wear out more quickly thanit otherwise would. This head is subdivided into four categories of compensation.

• Increased costs of running a household. This includes the expense of having paidhelp to take care of property, such as mowing the lawn or clearing snow off thedriveway.

• Funeral expenses. These will be paid to survivors of the deceased and assessed onthe 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 reasonsfor an earlier date.11


Awards of damages are paid by way of a lump sum for pain and suffering, permanentdefects and handicap, and permanent cosmetic handicap. Compensation for futureearnings and expenses are usually paid periodically.


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10 It is interesting to note that, since 1989, the average amount of compensation awarded for pain andsuffering has risen by approximately 22%.

11 Statutory interest at time of writing is 16%.

Finland


All awards of damages are provisional in essence, since a claim can be re-opened andfurther damages paid providing there is a clear causal connection with the originaltrauma. The amount of compensation awarded may also be adjusted according to thecircumstances 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 legalproceedings, the plaintiff needs to assess whether it is worthwhile financially to bring anaction for the remainder.

The Ministry of Social Affairs and Health issues the Categories of Permanent andDefect of Handicap periodically, which details and updates levels of damages.


Damages can be awarded in a foreign currency if they are claimed as such and sufficientevidence has been presented to substantiate their accuracy.


When compensation is paid to the plaintiff from an award of damages, benefits fromthe 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 salaryduring incapacity. Employers and the social insurance institution cooperate to coversickness allowance for employees.

PROCEDURE


41

Service

A claim is initiated in Finland by writing to the defendant or his insurers. It is possiblefor a foreign lawyer to make initial enquiries, but due to language difficulties anddifferences 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 ofdomicile of the defendant.

Cross-border service is done through letters of request to the Minister for ForeignAffairs. Local service of proceedings is carried out by the court.

The plaintiff can bring in a second defendant. The defendant can bring in a thirdparty by way of summons. If more than one person is responsible for the damage to theplaintiff, they can all be joined as defendants in the same action. If only one of moredefendants 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 proceedingsconcerning liability of certain officials may qualify for commencement of proceedingsin a higher court.

Court management

The Finnish courts changed their rules of procedure on 1 December 1993, introducingpreliminary procedures. The average time from the commencement of proceedings tothe 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 court-appointed experts. There is a statutory right to see medical records for patients and anyother persons authorised by them. Evidence is given mainly by way of writtendocuments, but witnesses and experts may sometimes appear before the court inperson.

Where the criminal injuries compensation board13 or Finnish Motor Insurers’Association will be dealing with the matter, they should be formally notified by sendingan accident report identifying the parties.

Witnesses


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12 Karajaoikeus.13 Rikosvahinkolautakunta.

Finland

Witnesses who fail to appear at court when requested can be fined and physicallybrought before the court by the police. A party can be compelled to disclosedocumentary evidence but not witness statements.


There are no provisions for a defendant to make a payment into court before a case isheard.


It is up to the parties to seek enforcement. Enforcement is normally only a problem ifthe 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 andtheir charges are fixed.

Interim orders can be enforced in some circumstances.

Cross-border enforcement are governed by treaties between Finland and othercountries. Most of these are multilateral, such as the Lugano Convention 1988 andvarious Nordic conventions.

COSTS

It is usually stipulated in the agreement of an out-of-court settlement which party willpay which costs. If a case goes to trial, the court will usually order the loser to pay thewinner’s costs. In principle, all the costs should be recovered by the winner, but this isnot always the case in practice. For example, it is unlikely that the costs of both aforeign and a local lawyer will be recovered.

43

CHAPTER SIX

LIABILITY

Civil liability in France is based on rules of both fault and strict liability.1 Particulartypes of harm include the following characteristics:

• Road traffic accidents are subject to a no-fault regime of liability, according towhich all victims are fully compensated.2 The only reduction in damages is for thevictim’s contributory negligence which was the exclusive cause of the accident.3

• Product liability is governed by the Civil and Criminal Codes, as the 1985European 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 isto 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 isliable for damage caused by deterioration of the premises, whether caused by latentdefect 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 AviationCode.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 fault-based system.10 The only exception to this scheme is for motor vehicle accidentswhich are governed by a separate no-fault scheme.11

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FRANCE

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1 Articles 1382 and 1383 of the French Civil Code provide for fault-based liability, while Arts1384–86 provide for strict liability.

2 Loi Badinter (Motor Vehicle Act) 1985. See Redmond-Cooper, R, ‘No Fault Liability on theFrench Roads’, for a detailed description of this legislation.

3 Paris, B, ‘France’, paper presented at the European Conference of the Association of Personal InjuryLawyers, 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 CriminalCode.

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.

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 istherefore unlikely that a plaintiff would be found to be 100% contributorily negligent.


If the defendant is a minor he can be held liable at the age of 18. Below this age hisparents 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 toappoint someone to act on his behalf unless legal aid includes such costs. It is usuallythe parents of the plaintiff who will act on his behalf. Where a plaintiff or defendant isnot mentally capable of conducting his own affairs, a guardian will be appointed on anad hoc basis by the court.

JURISDICTION

Proceedings must be commenced in either the place of domicile of the defendant orthe place of the accident.15 Domicile is regarded as being a person’s fixed residence, iethe 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 thedefendant or the domicile of the defendant insurer. The only proviso is that there beproper service on the defendant at his normal residence. Either party can ask that theproceedings be transferred to another court, but objections to jurisdiction must beraised 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 isdifferent to the place of the accident, the court will apply the law of the place of theaccident.


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12 Faute de la victime.13 Fait ou faute d’un tiers.14 Article 1384 of the Civil Code.15 Lugano Convention 1988.

France

LIMITATION PERIODS

The limitation period for civil claims for torts is 10 years from the date of knowledge ofthe injury.

The parties may in theory agree to extend the limitation period either expressly orimpliedly 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 theplaintiff is constrained in some way that prevents him from meeting the deadline.16

The limitation period may be interrupted by written acknowledgement from thedefendant 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 regardinglimitation 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 isavailable to persons of French nationality and foreigners resident in France, subject to ameans test.

Legal aid is not available for actions outside France. The legal aid board cannotrecoup 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.


Parties are allowed to be supported by legal expenses insurance, but at present it doesnot seem to be very widely used. Some home content insurance policies offer similarsupport.

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16 Article 540 of the Civil Code.17 Article 2252 of the Civil Code.18 Loi du 10.7.1991.

Trade unions

A union may assist a member in either bringing or defending an action only in theindustrial court, and is prohibited from providing assistance in civil proceedings.



The French criminal courts are empowered to award orders for compensation on thesubmission of a formal claim by the plaintiff, supported by expert evidence.19 Such anaward generally prevents a civil claim being made until the conclusion of the criminalproceedings.

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.


The police are not always called to accidents in which there have been personalinjuries; if called, they do not automatically start to investigate. They take theirinstructions from the public prosecutor who decides whether the matter should beinvestigated with a view to prosecution, or filed.

When a person is injured, apart from the police, the defendant’s insurancecompany 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 aprospective plaintiff on request, as soon as the plaintiff has registered himself as a partyto a civil action.21 It can take from two weeks to two months to obtain police reports.


A criminal conviction can be used as evidence in subsequent civil proceedings.22 Aforeign conviction can also be used.


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19 For example, a medical report from a doctor approved by the court.20 Caisse de Securité Sociale.21 At time of writing the fee for this was three francs per page.22 Res judicata.

France


In a road traffic accident case in which the defendant has insufficient means to pay, theplaintiff may apply to the state for compensation from its Guarantee Fund.23 The fundhas 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 thetype of crime, and interrupt the limitation period for civil proceedings. Prosecution in aforeign jurisdiction also interrupts the limitation period.

THE LEGAL PROFESSION24

French lawyers enjoy unlimited rights of audience in all civil, criminal andadministrative courts in the country, except the Tribunal de Grande Instance (court offirst instance). Before a Tribunal de Grande Instance outside his jurisdiction, the lawyerwill appoint a local lawyer to carry out procedural tasks such as filing the pleadings anddefence, while he remains entirely in charge of the case and pleads before the court atthe 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 obtaininformation about personal injury lawyers, one should contact the Conseil de l’Ordredes Avocats at the local High Court.26 There is also an association of personal injurylawyers called the Association des Avocats des Compagnies d’Assurance et du Droit dela Responsabilite (ASACA).

There is no restriction on a plaintiff’s choice of lawyer where he is receiving legalaid. Many lawyers are reluctant to take on legal aid work, however, and they must be amember of the Bar attached to the competent court. If the person cannot find a lawyerwilling to act under the legal aid scheme, the head of the Bar will appoint a lawyer exofficio.

INSURANCE


Insurance is compulsory for road traffic accidents, medical negligence, employer’sliability, fatal accidents, product liability, occupier’s liability, accidents caused by

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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 deGrande 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.

animals, environmental accidents and train and aeroplane accidents. Indemnity may belimited by contract.


The insurance company is under no obligation to pay if the defendant was in breach ofthe terms of the insurance agreement or failed to renew his insurance cover. In suchcircumstances, the Guarantee Fund (Fonds de Garantie Automobile for motor vehicleaccidents) 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 thehearing.


Insurers of motor vehicles must send the victim a full questionnaire requesting details ofhis injuries, and make an offer of compensation within eight months of the date of theaccident.27 If the victim’s condition has not stabilised by this time, an interim offermust be made, with a final offer no more than five months later.

DAMAGES

Heads of damage


• 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 ofenjoyment of work,28 loss of holiday,29 inability to care for an invalid or sickspouse, impairment of house-keeping ability, and spouse’s loss of earnings.30

• Physical injuries which cause: temporary partial incapacity as a percentage of thewhole body; and/or permanent incapacity of that part of the body function as apercentage.

• Past loss of earnings. This includes lost fringe benefits and lost chances ofpromotion.


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27 Loi Badinter (Motor Vehicle Act 1985). L 211–18 to L 211–26 of the Code des Assurances.28 Where the plaintiff has to undertake work for which he is overqualified.29 Where the accident happened during a holiday.30 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.

France

• Loss of future earnings.

• Loss of pension.

• Handicap on the labour market. This includes loss of earnings capacity where theplaintiff 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 theaccident, must employ others to do so. This head also includes privately-incurredmedical 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


Damages are usually awarded by way of a lump sum.


Provisional damages are awarded where there is a real risk of the person developing aside effect or of his condition deteriorating in the future.

An interim payment may be negotiated by the parties. The insurer is compelled tomake an interim payment where the plaintiff’s injuries derive from a motor vehicleaccident.33

Punitive damages

Punitive damages are not awarded.

Bereavement damages

Bereavement damages are not covered by baremes, but court awards are similar. Low

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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.

moral damages are also available.

Level of damages

Publications such as the Gazette du Palais regularly detail and update levels of awards ofdamages. Quantum is determined by an average across the Courts of Appeal.34


The aim of compensation in damages for personal injury is to restore the plaintiff fullyto his pre-accident position.35

The courts do not award damages in a foreign currency.


Social security benefits received by the plaintiff are deducted from the award ofdamages. French social services have a right of reimbursement via a direct right ofaction and a right of priority over the plaintiff’s damages.

Most collective bargaining agreements36 in France provide that salary shall bemaintained by employers for a given period. Employers have a right to be reimbursedand a final right of action, but no right of priority over the plaintiff’s damages. If thereis no such agreement, State social security pays a daily allowance to the employeewhich is recoverable against the tortfeasor.

PROCEDURE


Service

A claim in France is initiated by notifying the defendant by letter, and then issuing awrit and statement of claim. A foreign lawyer may request and obtain police reportsand other official information from the authorities, but this may be greatly facilitated bythe assistance of a local lawyer.37

Service of proceedings is subject to a 10 year time limit from the date the damage


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34 Bareme.35 Reparatio in integrum.36 Conventions collectives.37 Articles 1382 and 1384 of the Civil Code.38 Article 2270–71 of the Civil Code.

France

was sustained.38 The rules for cross-border service allow a further delay of two monthsfor 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 thesame action. If only one of more defendants appeal, only his involvement will beretried rather than the whole action.

Level of court

The level of court at which civil proceedings commence depends on the amount ofdamages claimed by the plaintiff. Claims of less than FF 30,000 commence in aTribunal d’Instance, while claims over that amount begin in a Tribunal de GrandeInstance.

Court management

The court will not usually give directions on how to proceed with the case. Thisdecision rests with the plaintiff.

The average length of time from the commence of proceedings to the courthearing is 18 months.

Evidence

The plaintiff is mainly responsible for obtaining the evidence. The plaintiff instructs hisown experts to give evidence with the court’s approval. Under French law, medicalrecords 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 signedauthority of his client. The court may also instruct its own independent experts. Thesewill not necessarily be in the plaintiff’s jurisdiction. Evidence is given mainly by way ofwritten documents.

Witnesses

In theory, both local and foreign witnesses can be compelled to attend court to giveevidence in person, but this rarely happens.


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, isgoverned by Art 1384, paras 2–7 of the Civil Code.

plaintiffs are obliged to guarantee payment before an examining magistrate (Juged’Instruction) against the risk of frivolous claims and consequential court costs.


It is up to the parties to seek enforcement rather than the court. Enforcement is onlylikely 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 thedebtor.

Interest runs on judgments at the legal rate increased by five points if not satisfiedwithin two months.40 In the case of motor vehicle accidents where the insurer fails tomake a timely interim or final offer, the victim is awarded interest on the final award bythe court at double the normal rate. The insurer will also pay up to 15% of the awardto 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. Theremust 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.

CHAPTER SEVEN

LIABILITY

In Germany the standard of care is generally an objective one, demanding proper careas reasonable in the ordinary course of business. There must be foreseeability of thedamage sustained by the plaintiff, but the remoteness of damage requirement does notseem to be a difficult hurdle as the actual loss suffered by the plaintiff does not have tobe foreseeable. Particular types of harm include the following characteristics:

• In road traffic accident cases, the owner of the vehicle is liable for any bodily injuryor 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 iscapped by the Road Traffic Act. The only exception to the strict liability regime iswhere the accident was unavoidable, ie where the accident was caused by somedefect in the vehicle and the owner and driver exhibited utmost care. Strict liabilitywill 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 provecausation. It then shifts to the doctor who must prove that the damage was notcaused by malpractice.

• Pharmaceuticals are governed by a regime of strict liability.3 The rest of productliability is governed by a combination of this regime, plus the former case law. Theburden of proof will shift to the manufacturer if the consumer can establish theproduct was faulty.

• There are few statutory provisions covering occupier’s liability.4 Occupier’s liabilityis based on proof of fault. The occupier is under a duty to take care and can beliable for failing to do so.

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1 For example, taxi service.2 Berufsgenossenschaften, Art 646ff, 790ff, 850ff Reichsversicherungsordnung.3 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 theterritorial scope of this statute and was either subject to admission or released from the duty ofadmission, a human being is killed or his body or health damaged, the pharmaceutical companymarketing the product within the territorial scope of this statute, will be liable to compensate theinjured person for the damage suffered. This liability exists only if (1) the pharmaceutical has harmfuleffects in its designated use which exceed a degree tolerable in light of current knowledge of medicalscience, and have their cause in development or production, or (2) the damage resulted fromlabelling, information or instruction insufficient in light of the current knowledge of medicalscience.’

4 But see Art 836 of the Burgerliches Gesetzbuch.

• Strict liability governs accidents caused by animals except regarding animals usedfor purposes of the owner’s business.5

• There is a strict liability regime for environmental accidents,6 train accidents,7 andaeroplane accidents involving non-passengers. With aeroplane accidents involvingpassengers, there is a presumption of fault and the onus is on the defendants toprove otherwise.8

DEFENCES

The main defences are necessity, intervening acts of third parties, contributorynegligence, and volenti non fit injuria. An employee also has the defence of hazardouswork against his employer, with the result that he will not be able to be held liable byhis employer. Contributory negligence can be raised concerning the injury and theduty to minimise the loss. An influence of drugs or alcohol is treated as contributorynegligence if the claimant cannot prove that this was not relevant to the accident. Incases of road traffic accidents this assumption is almost irrefutable.

The German approach to defences is to strike a balance between the individualshares of responsibility for the damage. This usually results in a reduction ofcompensation, but it may occasionally oust the injured person’s claim. It is quitepossible for a plaintiff to be found 100% contributorily negligent.


Defendants who are minors can be held liable between 7–18 years of age if they havean understanding of the consequences of their acts. Minors under the age of seven havea limited legal capacity according to which they are never liable. The parents can beheld liable if they fail to supervise their child adequately.

A minor can sue in his own right, but must be represented by a legal representativewho is usually one of his parents. A special guardianship court will appoint someone toact on behalf of the minor if the parents fail to bring a claim which would be in his bestinterests. A minor is most likely to be represented by his parent. An illegitimate childwill be represented by his mother. In all other cases, the minor will be represented by aguardian. Normally a guardian will be responsible where a plaintiff or defendant is notmentally capable of conducting his own affairs.


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5 Article 833 of the Burgerliches Gesetzbuch.6 Umwelthaftungsgesetz.7 Haftpflichtgesetz.8 Article 44ff of the Luftverkehrsgesetz.

Germany

JURISDICTION

German law does not recognise the legal principle of domicile. Emphasis is placedinstead on the residence of the parties. Residence is treated as being the place in whicha person stays and lives without the intention of returning elsewhere.9 A person whoresides in Germany must actually be living there and register his residency at the localpolice station. A person’s residency can be provided on request by the localOrdnungsamt. If the accident happened in Germany but the defendant is not residentthere, proceedings must be commenced in either the place of accident or residence ofthe defendant.10

Where proceedings are brought at the place of residence of the defendant which isdifferent to the place of the accident, the law of the place of the accident will beapplied by the German courts. The only exception will be where both parties areGerman, live in Germany and the accident happened in another country, or whenboth parties are German and insured in Germany, in which case German law will beapplied.

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 inone 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’sknowledge of the damage and the person responsible for it. The special limitationperiod for torts is three years.11 The three year rule therefore applies to road trafficaccidents, with the additional requirement that the plaintiff must notify the defendantwithin two months of knowledge of damage unless the defendant has otherwiseobtained knowledge of the accident, as will normally be the case. If the plaintiff fails todo so, all claims based on a strict liability regime are forfeited. The only exception tothe limitation period is where the defendant has acted fraudulently, in which case hewill not be able to rely on the limitation period.

The limitation period can be interrupted by negotiations until one of the partiesrefuses to continue.12 The parties cannot technically extend the limitation period byconsent, but it is possible for them to agree to waive the right to invoke limitation for aspecified period of time.13 The courts do not have the discretion to extend the

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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.

limitation period.

Where the plaintiff is a minor or a mental patient the same limitation periodsapply.14 The only difference in the rules is that the limitation period starts at the date ofknowledge of the legal representative rather than the knowledge of the victim. Thelegal 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 arenot resident in Germany can qualify for legal aid for an action in Germany. The maincriterion for eligibility is a means test. All fees for the lawyer and court costs are fundedaccording to statutory rules, but are restricted according to the calculations laid downby statute. The legal aid board is not generally entitled to recoup its expenses from thedamages awarded to the plaintiff, but a person earning over a fixed amount has to repaythe legal costs by instalments. No legal aid is paid for a person with a fixed income of aset amount, with the relevant net income depending on the number of dependants theperson 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 thesubject matter. There is a maximum of three fees: the first for conducting the matterout 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 beenaccrued.

A lawyer’s charges are calculated using a multiplier-multiplicand method. Themultiplicand depends on the value of the case. Where damages are being claimed thevalue of the case is an identical amount. The multiplicand is based on the statutory scaleof fees. Many lawyers prefer to agree on time charges with their clients rather than thestatutory fee. This is legal as long as the fees are not less than those set down by statute.


Legal expenses insurance is very common in Germany, especially for drivers of motorvehicles. Home contents insurance policies do not automatically include legal expenses


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14 Article 206 of the Burgerliches Gesetzbuch.15 Prozesskostenhilfe.

Germany

insurance. Other special legal insurance policies can be taken out. For example, liabilityinsurance can act as legal expenses insurance for defending an action. There are speciallegal insurance policies which can be bought, often included in motor vehicleinsurance. General legal insurance policies are available but will only cover theconsumer and not professional actions, for which special professional legal insurancecan be obtained. That legal expenses insurance is now widely available partly accountsfor 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 labourlaw, especially in cases of principle rather than individual interest. In labour law casesthe fees of the lawyer at first instance are not recoverable. The union will assist themember with the help of a union clerk who will prepare the claim and represent themember before the court.



In traffic accidents, criminal proceedings are commenced automatically as a matter ofpublic interest. In other types of accidents involving personal injury a formal demandmust be made by the injured party in order to institute proceedings.

If the defendant is prosecuted through the criminal courts, the criminal court hasthe power to award an order of compensation to the plaintiff. As it is not awardedautomatically, the plaintiff must submit a formal claim.16 The awarding of damages by acriminal court prevents a civil claim being made, as both awards are seen as serving thesame function. This rule operates only in the plaintiff’s favour, in that a plaintiff is freeto bring a civil action if he feels he has not been fully compensated, while a defendantcannot challenge the decision in the civil courts. As similar to a civil award, thecriterion for a criminal award of damages is the injury itself, as opposed to the means ofthe defendant.


The police are always called when a person is injured, and automatically start toinvestigate, especially with motor vehicle accidents. The police may reconstruct anincident, usually in the presence of an expert.

In general no other bodies need to be informed of an accident in which a person isinjured. For accidents at work, the Beiufsgenossenschaft needs to be informed. In cases

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16 Article 403ff of the Strafprozessordnung.

of medical negligence, the professional chamber should be informed and will offermediation services. With environmental accidents, government bodies like theDepartment 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 aprospective plaintiff. It can be obtained by formal request. There is generally no fee asthe original files are sent to the lawyer to copy. The prosecutor has to release theevidence by the time the investigations are complete. If the files are with the police orprosecutor, it usually takes only a few weeks to obtain the police report. Disclosuremight be delayed if it has been sent to an expert witness or to the court.


A criminal conviction can be pleaded in a civil court, but the existence of such aconviction does not automatically bind the court. A foreign conviction, if recognised inGermany, can be used as evidence in the civil trial but is non-binding. Criminalproceedings in Germany or abroad do not interrupt the limitation period.


If the defendant is unable to pay, there is a state compensation scheme for victims ofviolent crimes, calculated on a different basis to civil compensation.17 Foreign nationalsother than EU nationals can bring such claims only if reciprocity is guaranteed by theirhome country.18 This compensation board has redress against the defendant. If a matteris complained of to the board and the matter is successful, it will pay the costs of thecomplainant’s lawyer of his choice. The board will not cover legal costs, but theplaintiff can turn to the legal aid scheme for funding. The procedure available throughthe board is an administrative one, and it is felt that the services of a lawyers will not beneeded. 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 isalso a charitable organisation providing support for the victims of criminal acts.19


There is no distinction between solicitors and barristers in Germany. German lawyers


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17 Article 1 of the Opferentschadigungsgesetz stipulates that the quantum of damages should bedetermined in accordance with the Bundesversorgungsgesetz. Disputes over such claims fall withinthe 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.

Germany

are not allowed to call themselves ‘specialists’ in the field of personal injury, nor arethey allowed to advertise their services. The line between disseminating informationand advertising one’s services is unclear, however. It would not be consideredunprofessional for a lawyer to write articles or provide interviews to the media ontopics of personal injury. Information about lawyers who specialise in personal injurycan be obtained from either the Deutscher Anwaltverein20 or theBundesrechtsanwaltskammer,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 courtsof first instance for all claims up to DM 10,000. The regional courts deal with all otherclaims; the right of audience is only granted to lawyers who have their office within thearea of that court and are admitted there.23 There is no equivalent to the association ofpersonal injury lawyers. The closest organisation to it is a Committee on Road TrafficLaw as part of the Deutscher Anwaltverein, and its members deal with criminal aspectsof the law.

There is no restriction in the choice of lawyer for a legally aided person. A legal aidapplication is usually submitted by a lawyer, who will then be named in the order. Thecourt can appoint a lawyer ex officio if a person cannot find a lawyer willing to act underthe legal aid scheme. This is very uncommon since the legal aid scheme pays almost thefull fees of the lawyer.

INSURANCE


Insurance is compulsory for motor vehicles, pharmaceuticals, aeroplanes, and certainplants and factories with environmental risks. Indemnity is limited in the case of roadtraffic accidents to DM 500,000,24 pharmaceuticals DM 500,000, product liability DM160 mio, environmental incidents DM 160 mio, and aeroplane accidents DM320,000.25


If a person has neglected to take out insurance cover for motor vehicles, or if he is inbreach of any terms of the insurance agreement, the plaintiff will usually recover

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20 Adenauerallee 106, 53113 Bonn.21 Joachismstr 1, 5311 Bonn.22 Amtsgericht.23 Landgericht. This restriction will be dropped on 31 December 1999.24 For one person. If more than one person is injured the amount is DM 750,000.25 For passengers. Limits for non-passengers are calculated according to the weight of the aeroplane.26 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.

regardless. Breach of the insurance agreement does not automatically affect third partiessince it is the vehicle which is insured rather than any specific individual.26 If theinsurance agreement has been terminated by the insurance company, it will be no validdefence for a one month period from notifying the car registration office, who willprevent the further use of the car. If the tortfeasor neglects to take out insurance coverat all, there is a compensation board of the insurance companies who will handle theclaim.27 The fund was established in 1966 and is financed by motor vehicle insurancecompanies. Foreign nationals have such claims only if reciprocity is guaranteed by theirhome country. Such claims are only a system of last resort if the injured party has noprivate insurance or social insurance benefits upon which to rely. Pecuniary damagewill only be paid in very exceptional cases.

If the car is insured with a foreign insurance company, the claim will be dealt withby the HUK Verband as the consulting bureau under the green card system.28 Thisorganisation can also be helpful with investigations abroad.

If the motor insurance bureau is dealing with the matter, it must be notified inwriting. If it does not pay it can be sued as a nominal defendant.29


It is only possible to bring proceedings against the insurance company directly in claimsarising from motor vehicle accidents. In all other cases the claim must be broughtagainst the defendant.

DAMAGES

Heads of damage

The heads under which an injured person can recover damages are immaterialdamages,30 loss of past and future earnings, medical expenses, additional needs, funeralcosts, 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 recoverableunder the statutory rules of strict liability. Immaterial damage is usually paid as a lumpsum and on the condition that the plaintiff is suffering continuous pain. Additionalpayment can also be awarded. The amount of damages available for immaterial loss hasnot 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


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27 Verkehrsopferhilfe, Glockengiesserwall 1, 20095 Hamburg.28 HUK Verband, Glockengiesserwall 1, 20095 Hamburg 1.29 HUK Verband.30 Non-pecuniary loss.

Germany

capacity but for the actual loss of income due to the accident. The average net incomeof the year prior to the accident is considered by courts as indicating the amount theplaintiff would have earned in the future. Any tax advantages will be deducted. For aself-employed plaintiff, the average income of the three years prior to the accident iscalculated. If a homemaker is injured, the loss is calculated on the basis of the wages forhelp in the house. There are no deductions for contingencies of life.

The plaintiff is compensated for all medical expenses incurred, regardless ofwhether they were incurred under the public or private health care system.

The plaintiff is also compensated for any additional needs he has due to theaccident. The plaintiff can therefore request compensation for adapting his house to hisdisability, and for help in the house. Help from the relatives and their hospital visits arealso compensatable.

The plaintiff can demand compensation for all damage to his property. Thisincludes travelling expenses to the hospital and any visits by relatives, the cost ofrepairing the car, vehicle storage costs, hire of an alternative vehicle, and the costs ofthe expert needed to assess the damage and the costs of repair. The courts also awardcompensation 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 statutoryminimum interest rate is 4% per annum, but in most cases it can easily be shown thatthe plaintiff either had to pay higher interest himself or could have obtained higherinterest by investing the amount of damages.


The court will usually award periodic payments. Only the immaterial loss is calculatedon the basis of a lump sum. The plaintiff may ask for a lump sum if he has justifiablereasons for doing so.31 A lump sum is not calculated on a multiplicand system, but byusing actuarial tables instead. These tables take into account the life expectancy of theplaintiff and the chance of remarrying. A lump sum is only awarded in very limitedcases and most often where resolution of the claim is reached by an out-of-courtsettlement.


If the case is settled on the basis of a lump sum and there is a future risk of the plaintiffsuffering further damage due to a side effect of the original injury, the parties usually

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31 For example, there may be difficulties in enforcing judgment in a foreign jurisdiction, or there maybe a risk of insolvency of the defendant.

agree on an award of provisional damages. Even without provisional damages havingbeen agreed in the settlement, a plaintiff who develops a significant side effect whichwas 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 aninterim payment. The plaintiff must apply for an interlocutory judgment justifying theneed for the claim and showing that he lacks any other means to cover his needs. It islikely that an insurer will make an interim payment on a voluntary basis in order toencourage 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 judgmentsordering punitive damages are not enforceable in Germany.32 However, a penalty forreckless 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 inexceptional circumstances if, after witnessing the accident or learning of the injury, theysuffer shock to a degree far beyond normal. Close friends or relatives may also beentitled in situations where learning about the injury goes far beyond the average shocksituation.33

The value of the dependency is assessed according to the net income of thedeceased. A widow without children will receive 50%, and a widow with children70%. The widow must try to find suitable and acceptable work in order to minimisethe 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 otherpublications.34 It is usual for the court of first instance to rely on these sources. Thehighest amount of immaterial damages will be awarded for tetraplegia for which thecourts 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/KubersbuschErsatzansprueche bei Personenschaden, 5th edn, 1990; Geigel, Der Haftpflichtprozess, 20th edn, 1990; andthe periodicals Deutsches Autorecht (DAR), Neue Zeitschrift fur Verkehrsrecht (NZV), Zeitschrift fuerVersicherungsrecht (VersR), Zeitschrift fuer Schadensrech (ZfS0) and Neue juristische Wochenschrift(NJW).

Germany

It is unlikely that any claims will be too small to make it worthwhile for theplaintiff to proceed with his claim, since most legal costs are covered. The onlydifficulty might be finding a lawyer who is prepared to charge no more than thestatutory fee.


Damages are not awarded in a foreign currency, but currency erosion can be claimed asdamages. 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.


German social security is a system of compulsory insurance which is financed byemployers and employees. The system pays for medical treatment and grants sicknessbenefits and invalidity pension. Payments from it are comparatively high, and in somecases can be higher than damages payable under civil law. Payments are usuallycalculated as a percentage of former income and are not limited to a fixed sum. Nocredit is given to the plaintiff for State benefit received, as this is perceived as givingunwarranted relief to the defendant. There is no right of priority over the plaintiff’sdamages, 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 topay a full salary for up to six weeks. A work accident insurance scheme to whichemployers pay contributions precludes claims against the employer.37 If the accidentwas intentionally caused by the employer, or if it occurred while the parties participatedin ‘public traffic’, the employers remain liable.38 The idea behind the scheme is toprotect the employee from possible employer insolvency, and avoid arguments andlitigation between the parties. Employers have a right to be reimbursed, but there is noright of priority over the plaintiff’s damages.

PROCEDURE


Service

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35 Cessio legis.36 Berufsgenossenschaften.37 Article 537ff of the Reichsversicherungsordnung.38 Article 636ff of the Reichsversicherungsordnung.

A claim is initiated in Germany by writing to the defendant and, in cases of trafficaccidents, to the insurance company as well. The police file should also be requested atthis time as the insurers normally ask for such information in their reply. Instructing alocal lawyer from the outset to obtain official information from authorities investigatingan accident is not necessary, but can often expedite enquiries. Foreign lawyers canrequest and obtain initial information before instructing a local lawyer.

Service of proceedings is governed by the court and need not be done by theparties. 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 officialcertificate of delivery by the post office. After service, the defendant is given notice toreply, usually within three weeks. If the matter is treated before the district court, thereply must be signed by a lawyer admitted to the court. Cross-border service ofproceedings 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 partyand its connection to the matter in the defence or in later written pleadings. Copies ofthe 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 thesame action. If only one of several defendants appeals, the substantive law willdetermine whether it is possible to come to a different decision for each defendant. Itmay be possible either for the whole action to be retried or for only one particulardefendant to be retried. There is nothing to prevent an appeal being restricted to theinvolvement of only one defendant.

Level of court

Proceedings are commenced in the local court40 if the compensation sought by theplaintiff is less than DM 10,000. A law suit for more than that amount is commenced inthe district court.41 An appeal from the local court goes to the district court, and anappeal from a district court goes to a regional court.42 There is a further appeal onquestions 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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40 Amtsgericht.41 Landgericht.42 Oberlandesgericht.43 Bundesgerichtshof.

Germany

court will indicate which evidence is to be called and what additional information willbe needed.

The average time from the commencement of proceedings to the court hearing is2–4 months, but a hearing will not necessarily be completed in one day. When it takeslonger, a new date will be set by the court to continue the hearing. The court hascontrol of the case.

Evidence

The German system is a mixture of adversarial and inquisitorial procedure, and isgenerally less adversarial than the English and less inquisitorial than the French.44 Theparties are responsible for obtaining the evidence. This is offered to the court, whichthen decides which evidence is to be brought before it. The court can instruct its ownindependent experts but usually asks the parties to agree on one. In cases in which it isexpected from the start that the parties will not agree, they are normally advised to waitfor the court-appointed expert in order to avoid unnecessary costs. They may still usetheir own experts, however, to challenge his testimony. The court usually appoints anexpert in the plaintiff’s jurisdiction.

Patients have a right to see their own medical records and details of the treatmentgiven. There is no statutory right of inspection, but case law has developed a right onthe basis of the contractual relationship with the doctor. The records are normallyreleased to the patient or to his lawyer. In cases where full information about hiscondition might be harmful to the patient, it has been recognised that they may besubmitted to his medical advisor instead. If the release of records is refused, the courtwill either grant an order to their submission or shift the burden of proof to the doctorto sanction his failure to provide documentation.

Witnesses

Expert evidence is first introduced in written form, but the court or the parties can askthe expert to explain his report in person. Witnesses can be compelled to attend courtto give evidence. If they refuse they can be ordered to make penalty payments and canultimately 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. Thereis, however, a special procedure for the preservation of evidence.45 An application canbe made to the court in some circumstances to force a reluctant party to discloseevidence.

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44 For example, the court may ask questions whenever it thinks fit.45 Selbstandiges Beweisverfahren.

If the parties or witnesses reside outside the jurisdiction, they can either be heard ina court in their home country by mutual assistance or ordered to attend in person togive evidence.


There are no provisions for a defendant to make a payment into court before the case isheard.


There is no special provision for interest on awarded amounts, but statutory interestruns 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 expressrequest in his statement of claim, otherwise it cannot be enforced.

Enforcement procedures are left up to the parties and include the seizure ofmoveables by the bailiff. Detachment orders and sequestration orders can be issued bythe court. Immovable property can be sequestrated and claims against third parties canbe attached. The costs of enforcement are calculated according to a scheme inproportion to the amount of damages awarded in the judgment. Enforcement mightpose a problem where the defendant is unavailable, no seizable assets are in hispossession or a defendant company has been dissolved.

Interim orders are usually enforceable, but there is a risk of having to pay damagesif the order is set aside upon appeal. Cross-border enforcement is not generally aproblem 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 thedistrict court with the domicile of the debtor or the district court where the executionis going to take place. Only the judgment itself has to be translated.

Judgments outside the Brussels Convention need an enforcement judgment inorder to be enforceable in the absence of a special treaty between Germany and theState in which the judgment was obtained.

The German court will verify proper service according to the German rules ofprocedure and the jurisdiction of the court, as well as any applicable internationalconventions. 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 providedotherwise in the agreement. If the case goes to trial the court will usually order the


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46 4% minimum.

CHAPTER EIGHT

LIABILITY

The concept of negligence in Greece is considered to be an act or omission causingharm and resulting in liability to pay reparations.1 The general standard of care is fault-based (pater bonus familias)2 and is set out in the Greek Civil Code and some auxiliarystatutes which generally impose strict liability to certain areas of negligence.

• Road traffic accidents are governed by a regime of strict liability under which boththe driver and owner of the vehicle will be liable.3 Exceptions to the general ruleof strict liability include the defences of an act of God, contributory negligence, anda defect in the vehicle that could not reasonably have been foreseen by either thedriver or owner. Strict liability does not apply to the owner’s duty of care towardspassengers 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 foraeroplane accidents,5 some environmental accidents6 and product liability7 are alsostrict.

• Accidents caused by non-domestic animals8 and employers’ liability (vicariousliability of an employer for the negligence of an employee)9 are subject to aparticular hybrid of strict and fault-based liability. In effect, both have a reversedburden of proof so that the onus to rebut the presumption of negligence is on thedefendant.

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1 Kerameus, KD and Kozyris, PJ (eds), Introduction to Greek Law, 2nd edn, 1993, p 75, Deventer, TheNetherlands: Kluwer.

2 Arts 914 and 919.3 L 3950/1911.4 L 551/1914.5 L 596/1937 in accordance with the Warsaw Convention, and LD 4395/1964 in accordance with the

Hague Protocol.6 For example, oil pollution is subject to L 314/1976 in accordance with the Brussels International

Convention on Civil Liability for Oil Pollution Damage 1969.7 L 1961/1991, L 2000/1991, Arts 26–29.8 Article 924.9 Article 922.

DEFENCES

Available defences10 (arnisi tis vaseos tis agogis) include contributory negligence, strictliability of a third party, being under the influence of drugs or alcohol at the time of theaccident, force majeure, self-defence and ignorance of damaging effect.

Some of these will operate as complete defences, while others such as the drugs oralcohol defences will merely reduce the amount of compensation payable to theplaintiff. Whether a defence will completely oust a claim will be left to the judge’sdiscretion. A plaintiff may be held to be 100% contributorily negligent.


If the defendant is a minor he can be held liable from the age of 18 years. Minor ormentally sub-normal defendants may either be exonerated completely or be found onlypartially liable.11 If he cannot be held liable, the parents may be vicariously liable unlessthey can prove they exercised due diligence. Although the defendant’s culpability maybe reduced, he may nevertheless be liable for full damages to the plaintiff ifcompensation cannot be recovered from another source.12

In cases relating to infant plaintiffs and plaintiffs who are mentally incapable ofconducting their own affairs, representation will be by parents ipso jure. A minor cansue in his own right at 14 years of age.

JURISDICTION

Whether the Greek courts will have jurisdiction to hear the case will depend on thedefendant’s domicile.13 The Greek Civil Code defines domicile as being ‘the placewhere one has his principal and permanent establishment’.14 Greece is also a signatoryto the Brussels15 and Lugano16 Conventions.

According to the Greek rules of private international law, the law of the place ofthe accident must be used before Greek courts, unless both parties are Greek and live inGreece, even if the accident happened in another country.

Road traffic accident cases are generally dealt with at the place of the accident inaccordance with Greek rules of private international law and the Hague Conventionon the Law Applicable to Traffic Accidents 1971.


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10 Article 261.11 Articles 915–17.12 Article 918.13 Article 22.14 Article 51.15 1968.16 1988.

Greece

Tortious claims concerning criminal acts can be brought in either the place ofaccident 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 toask for the proceedings to be transferred to another court. If the case has been depositedin a court which is not competent, it will be transferred to a competent court by thejudge. The defendant is able to raise an objection questioning the competency of thecourt. The plaintiff may withdraw his action from the court and file it in another courtso long as it has competence to deal with the matter.

The parties may agree in writing to choose a specific district court in Greece inadvance of the hearing. Agreement may also be implied where one party fails to objectto 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 yearsfrom 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 theidentity of the tortfeasor against any other defendants.

The limitation period will be interrupted by negotiations between the parties, butcannot be extended merely by consent. The courts do not have the discretion toextend the limitation period.

The same limitation periods apply where the plaintiff is a minor or a mentalpatient.19

FUNDING

Legal aid

The Greek legal aid scheme (evergetima penias) is highly restrictive.20 Legal aid is difficultto obtain, with the main criterion for qualification being financial need.

The main criterion for qualification for legal aid is that the candidate must beunable to support himself or his family if he pays the court costs.21 There is no limit towhich a legal aid board will fund and there are no contributions payable by claimantstoward their legal costs.

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17 Article 35.18 Articles 42–44.19 Article 258.20 Articles 194–204.21 Article 194.

Legal aid is not available for an action outside the jurisdiction. A foreigner who isnot resident cannot qualify for legal aid.

The legal aid board is not entitled to recoup its expenses from the damages awardedto 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 usuallyapproximately 20% of a final award of damages. The Code of Attorneys sets aminimum level of fees for lawyers, according to the type of litigation and the subjectmatter.


Some plaintiffs are supported by legal expenses insurance. Home contents insurancepolicies which include assistance with legal expenses are available, but do not seem tobe widely used.

Trade unions

Information was unavailable at the time of writing.



The criminal courts in Greece are empowered to award orders for compensation to theplaintiff on the submission of a formal claim by the plaintiff.

The awarding of damages by the criminal court prevents a subsequent civil claimbeing made until the criminal proceedings are finalised. If a criminal case is pending, acivil court judge may, on his own initiative or the request of one of the parties, orderan adjournment of the hearing until the criminal proceedings are finalised.

The criteria for assessing quantum in the criminal courts are the injuries suffered bythe plaintiff. They are the same as for a civil award of damages. The plaintiff maypursue a civil claim to make up what he perceives to be a shortfall in the amount ofcriminal compensation.

In criminal proceedings, the limitation period is interrupted from the date the writof summons is served. In the case of misdemeanours, the case is time-barred eight yearsafter the accident. Prosecution in a foreign jurisdiction does not interrupt the limitationperiod.


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When a person is injured, the police are always called and automatically start toinvestigate. Criminal prosecution is ex officio made where there has been an accidentinvolving personal injuries. Where the defendant is a relative of the victim, the penalprocedure 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 personalinjuries are the Foundation of Social Insurance (IKA) and disciplinary bodies, eg themedical 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 lawyersonce their preliminary investigation is over and before dispatching the case file to thepublic prosecutor. However, they will not release any official documents at this time.When the police investigation is complete, the prosecution and the police will maketheir evidence readily available to the lawyer of a prospective plaintiff. The officialevidence is obtained on formal request. There is no fee for this, but a sum ofapproximately 10,000 drachmas (dr) will be payable for stamp taxes and ratificationdues.

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 carriesserious weight in a subsequent civil procedure.


There is no State-funded compensation scheme for the victims of criminal injurieswhere the defendant is unable to pay. In the event of an insurer’s insolvency or in theevent that a motor vehicle is uninsured, the insurer’s auxiliary capital will be used tosatisfy the award (epikouriko kefalaio). This fund has the right to investigate a casedirectly, nominate the lawyer, and has redress against the defendant.


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

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personal injury, and advertisements by lawyers is prohibited. There is no association ofpersonal injury lawyers. Furthermore, as the Law Society does not allow lawyers toregister their specialties, it is almost impossible to obtain referrals to personal injurylawyers 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 theirlocal 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


Information was unavailable at the time of writing.


If the defendant is uninsured or in breach of the terms of his insurance agreement, theplaintiff will still be paid by the Supplementary Capital Fund (Epikouriko Kefalaio).


Proceedings may be brought against the defendant’s insurer directly. If proceedings arebeing brought against an insured, however, his insurers must be given formal noticebefore issuing proceedings and within a certain time limit in order to secure insurancecover.

DAMAGES

Heads of damage

The heads under which a plaintiff may recover damages are pain, suffering, loss ofamenities 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 Articles 261 and 346.23 Article 914.24 Article 919.25 Article 929.

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 care-giver 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.


Damages may be awarded in a lump sum or by period payments,26 but are usually paidperiodically by way of an annuity in monthly instalments. The court will sometimesapprove a lump sum payment at the plaintiff’s request if he can show a serious need forit. Interest accrues on damages from the date of service of the writ.27


Interim payments can be made after a special provisional procedure is followed on theplaintiff’s request. The plaintiff will have to prove that he is in real need of an interimaward, and the court will have to assess the likelihood of his claim succeeding.28 Thedefendant may make an interim payment on a voluntary basis.

Provisional damages will be awarded where the plaintiff claims a prejudice to hisfuture rights. He must prove that there is a real danger that he will develop side effectsin the future or that his condition is likely to deteriorate. The court will then allow himto re-open a case against the defendant in the future for a second and sometimes thirdtime.

Punitive damages

Punitive damages are not awarded in Greece.

Bereavement damages

Bereavement damages are payable to the heirs of the deceased. Included are themedical and funeral expenses of the deceased and the loss of income sustained by any

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26 Article 938.27 At the time of writing interest was fixed at 28%.28 Articles 682 I and 728 I lit e.29 Article 928.

dependants.29 Moral damages (ikanopoiisi ithikis vlavis) are payable for the pain andsuffering of the plaintiff, as well as to the family of the deceased for the pain they sufferdue to his death.30 The moral damages awarded to the plaintiff do not pass to his heirsunless agreed between the litigating parties.31

Level of damages

There is generally no cap on the amount of damages available where strict liabilityapplies, but the courts give consideration to the defendant’s financial resources.

There are no publications in Greece which detail and update levels of damages incases of personal injury.


The courts will not award damages in a foreign currency where the plaintiff is notresident in Greece, but may make an award in Greek drachmas after assessing quantumin a foreign currency.

PROCEDURE32


Service

A claim is initiated in Greece by serving notice upon the defendant and filing theaction with the court clerk.

It is advisable to instruct a local lawyer from the outset to obtain initial informationon 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 hehas 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.

Greece

be served 30 days before the first hearing.33

The Hague Convention34 applies in respect of cross-border service. Notification ofthe suit is made by the bailiff to the district attorney of the court of first instance, andthe secretariat of the district attorney’s office and the Ministry of Foreign Affairs twomonths before the hearing.

If more than one person is responsible, they can all be joined as defendants in thesame action.35 The plaintiff may bring in a second defendant. The defendant can bringa third party into the action. If only one of more defendants appeal, only hisinvolvement will be retried.

Level of court

Proceedings commence in the level of court which has the competence to handlematters likely to render that particular amount of compensation.36 The current lines ofdemarcation run at 30,000 dr between Justices of the Peace and the one-memberdistrict courts. Claims of more than 1,000,000 dr commence in the three-memberdistrict courts. The Civil Code of Procedure also allows competence according tosubject matter.37 Matters of employer’s liability, insurance and motor vehicle accidentsare generally heard in the higher courts. To commence proceedings in a court of ahigher level, therefore, the case must be extremely serious and concern one of the areasnoted above, or the likely award of damages must be within the higher court’scompetence.

Court management

The average time from the commencement of proceedings to the court hearing is fiveto 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 ofevidence occupy a central place in Greek civil proceedings. At the first hearing, if thecourt 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 willorder the evidence by use of a judicial act (prodikastiki apofasi) and make directions as tothe 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

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35 Article 926.36 Article 15.37 Article 16.

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 topresent their evidence mainly by way of written documents. Witnesses can becompelled to attend court in person in criminal, but not civil actions. Witnesses andparties residing outside the jurisdiction may submit sworn depositions in some cases,but can be summoned to appear in person through the magistrates’ court in thejurisdiction 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 toreside in the jurisdiction. The plaintiff may introduce his own expert evidence inaddition. Both parties are obliged to disclose all evidence, and not mislead the court oreach other. In respect of medical evidence, patients have a statutory right to see theirmedical records and make copies of the reports and files.


There are no provisions for the defendant to make a payment into court before the caseis heard.


It is up to the creditor to seek enforcement. It is potentially very costly, as the cost willbe 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 atthe bottom of a certified copy of the enforcement instrument. If the debtor fails torespond, the creditor orders a marshal, who is the agent authorised to carry outexecution, to carry it out.

Interim orders are enforceable and sometimes used to freeze assets to secureenforcement later.38

Cross-border enforcement is carried out by special exequatur proceedings before thedistrict court of the defendant’s domicile or, in their absence, of Athens.39 For anexequatur to be obtained, it must be shown that the foreign document is judiciallyenforceable under the law of the country of origin, and not contrary to good morals orto public policy. In addition, in order to recognise a foreign judgment, the court must


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38 Articles 707–24.39 Article 905.40 Article 323.

Greece

have international jurisdiction according to the rules of Greek private internationallaw.40 The defendant need not be summoned or formally notified, but usually is inorder to be precluded from challenging the exequatur later. If the defendant appears, hemay challenge only matters related to the exequatur, and is prohibited from raising anysubstantive issues.

COSTS

There are no general rules on which party should pay costs when a case settles out ofcourt. When a case goes to trial, the court will usually order the loser to pay thewinner’s court costs and lawyer’s fees,41 unless the court feels it is unjustified in thecircumstances and the victory was not clear cut.42 It is unlikely that the costs of both alocal and foreign solicitor will be recovered.

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41 Article 176.42 Articles 178–79.

CHAPTER NINE

LIABILITY

The general standard of care is pater bonus familias. Particular types of harm include thefollowing characteristics:

• Road traffic accidents are governed by a scheme of strict liability for motor vehicleowners, and fault for motor vehicle drivers. The Civil Code provides that theowner of a motor vehicle will be liable unless he proves that the driver was notauthorised to drive the car.1 In such circumstances, the driver will be liable unlesshe proves to have been unable to avoid causing the damage, despite exercisingreasonable care. The onus rests on the defendant driver to rebut the presumption offault. In the case of an accident between vehicles, it is generally presumed that eachdriver is equally responsible for the resulting damage, and they may be held jointlyliable with the vehicle owners.

• Employer’s liability (master and servant) is based on fault.2 The employer owes ageneral duty to his employee to protect his physical integrity, and is also under anumber of non-delegatable statutory health and safety obligations.3 Employers maybe vicariously liable for the tortious acts of their employees under a no-faultscheme.4

• Liability for medical negligence is based on fault, the standard of duty of care beingthat of a competent doctor in all the circumstances. Both breach of this duty and acausal link between negligence and the damage suffered by the plaintiff must beproved.5

• Product liability is governed by a regime of modified strict liability, with arebuttable 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 isrebuttable only by proof of a ‘fortuitous event’.7

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1 Section 2054 of the Civil Code.2 Article 2087 of the Civil Code.3 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).

4 Section 2049 of the Civil Code.5 Section 2236 of the Civil Code.6 Presidential Decree No 224 of 24 May 1988.7 Articles 2051 and 2052 of the Civil Code.

• Environmental incidents are governed by fault in some circumstances, and strictliability subject to certain defences in others.8

• Train accidents are governed by strict liability, subject to the defence of bestendeavours to avoid causing damage.

• Aeroplane crashes are governed by a scheme of strict liability.9 However, personalinjuries 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 negligenceon the part of the plaintiff can reduce compensation proportionately. The otherdefences generally oust the plaintiff’s claim altogether. It is possible, however, for aplaintiff to be held 100% contributorily negligent.


As regards criminal liability, a minor cannot be held responsible.13 It will be left to thecourt’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 inhis own right with the representation in court of a parent or guardian.15 If there is noone to represent the plaintiff, the court may appoint a guardian.


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8 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 toavoid the accident in order to avoid liability. Law No 349 of 8 July 1986 entitled ‘Institution of theMinistry for the Environment and Regulations Pertaining to Environmental Damage’ furtherprovides that any fraudulent or culpable action committed in violation of laws or measures, andwhich causes damage to the environment, gives rise to full liability in damages. The onus is on thedefendant to prove that he adopted all possible and proper measures to avoid causing the harm.

9 Section 2050 (see above).10 Section 1681 of the Civil Code, in accordance with s 2050 above and the Warsaw Convention

1929.11 An equitable award may be granted to the plaintiff.12 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 thirdparties.

13 Under 14 years of age.14 The age of majority is 18, as per Art 22 of the Civil Code.15 Article 429 of the Civil Code.

Italy

JURISDICTION

The Italian Civil Code defines place of domicile as being the place of one’s businessactivities 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 summonedeither 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, thereare a number of options. Proceedings can be commenced in either the place ofdomicile of the defendant, the place of the accident, the place where the defendantinsurer has its registered office, or the place of the branch office or agent whichexecuted the insurance contract. Either party has the right to ask for the proceedings tobe transferred to another court if it can be proved that the appointed court is notcompetent.

According to the rules of Italian private international law, the laws of the place ofthe accident must be used before the Italian courts, unless both parties are Italian andlive in Italy, in which case Italian law will be applied.

LIMITATION PERIODS

The general limitation period for unlawful damage is five years. For motor vehicleaccidents, however, the limitation period is two years.

The limitation period starts to run from the date of the accident. It can besuspended where the parties have a particular relationship, such as husband and wife orguardian and minor, by a judicial petition within the civil proceedings. A written claimrequesting payment of damages causes an interruption in the limitation period, so that anew limitation period starts to run afresh from the beginning. Criminal proceedingsalone do not suspend or interrupt the civil limitation period.

The parties have no power to extend the limitation period, and neither do thecourts.

Where the plaintiff is a minor or a mental patient, the limitation period issuspended for the time he has not had a legal representative and for the six monthperiod 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.

FUNDING

Legal aid

The Italian legal aid scheme18 is called the tariffa dei diritti e degli onarari. There is nolimit 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 ofItaly 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 andreasonable grounds for the legal action.

If the recipient of legal aid wins the claim, and costs are awarded against the otherparty who has insufficient means to pay, the legal aid board has no right to recoup itsexpenses from the damages awarded to the plaintiff.

Contingency fees

Lawyers do not operate on a contingency fee basis. They have a minimum fixed levelof charges set by ministry decree.19 Charges vary according to the value of the claimmade by the plaintiff and the type of work involved.


Plaintiffs may be supported by legal expenses insurance or home contents insurancepolicies, 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 apercentage of the compensation received by the member if his claim is successful.



If the defendant is prosecuted through the criminal courts, the plaintiff can be awardedcompensation by submitting a formal claim. The awarding of damages by a criminalcourt does not preclude a subsequent award by a civil court after the criminalproceedings have been concluded.


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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.

Italy

As in the civil courts, the criminal courts base assessment of the quantum ofdamages on the injury.

Judges have the discretion in criminal proceedings to award a down payment to thevictim as part payment of the compensation which will be ultimately granted to him.


Criminal proceedings are initiated by calling the police and filing a petition with thecourt. In some cases criminal proceedings are commenced ex officio. Criminalproceedings can be instituted ex parte with 90 days of the date of the crime, but thelimitation period for crimes to be prosecuted ex officio is longer.20

When an accident gives rise to personal injuries and the injured parties aretransported to the hospital, the treating physician is obliged by law to send the details tothe judicial authorities automatically.21 The police will then forward the information tothe public prosecutor, and whether criminal proceedings should be commenced is leftto his discretion.

The police will sometimes reconstruct an accident where causation is unclear or theevidence will soon deteriorate.

Certain bodies must be informed of an accident giving rise to personal injuries. Forexample, 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 tothe lawyer of a prospective plaintiff. It will be made available at the end of thepreliminary investigations. Efforts to obtain evidence are made by formal request. Thefee payable for this will depend on the length of the documents and speed with whichit must be delivered. It usually takes no more than five days after a request is filed forpolice reports to be released. The preliminary investigation normally takes not less thansix months.


A criminal conviction can be pleaded in the civil court. Article 12 of the CriminalCode and Article 730 of the Code of Criminal Procedure provide for the recognitionof foreign convictions in Italian civil proceedings. The facts and liability of the

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20 See s 157 of the Criminal Code.21 Article 265 of the Criminal Code.22 Ordine dei Medici.23 Istituo Nazionale per l’Assicurazione sugli Infortuni de Lavoro.

convicted defendant do not need to be proved again in the subsequent civil procedure.


The State will not pay compensation to the victim where the defendant is unable to doso. A guarantee fund for the victims of unidentified automobiles has been set up, but ittakes some considerable time for money to be paid out of it.


The rules of the professional body for lawyers24 prohibit publicity and advertisementsand do not allow lawyers to refer to themselves as specialists in the field of personalinjury. There is no association of personal injury lawyers, and nowhere thatinformation about lawyers who specialise in personal injury can be obtained.

There is no distinction between solicitors and barrister in Italy, but lawyers retaintitles of either procuratore or avvocato, and rights of audience vary. An avvocato has rightsof audience in all Italian courts except the Corte Costituzionale, Corte di Cassazioneand the Consiglio di Stato. After eight years of practice as an avvocato one can appear inthese courts as an avvocato cassazioniste.

The procuratore legale’s right of audience is restricted to the district courts and Courtof Appeal in the area in which he is resident. To be admitted to the public register ofavvocato, a lawyer must have been registered as a procuratore legale for six years. There is aspecial roll of lawyers who may appear for the defence before the Supreme Court inRome.

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 courtand paid by the State. Counsel appointed by the court ex officio are chosen from aspecial register, which also somewhat restricts the choice of lawyer.

INSURANCE


Insurance is compulsory for all motor vehicles and risks related to dangerousactivities.25 Indemnity is limited by a schedule setting forth the minimum amounts


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24 The Ordine degli Avvocati e Procuratori has branches in each region and a national office, theConsiglio 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 1969on compulsory insurance.

Italy

required for various types of vehicles.26


Penalties for failure to take out compulsory insurance range from LIt1,000,000–4,000,000.27 If the defendant is in breach of any terms of the insuranceagreement, the insurance company will still be obliged to pay the plaintiff, with a rightof reimbursement from the tortfeasor as stipulated by the terms and conditions of theinsurance agreement.

If the driver is unknown or has not taken out insurance cover, or the insurancecompany is in liquidation, the Warranty Fund for the Victims of Road Accidents willpay compensation.28 Notification of this body is carried out by registered mail.


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 receivingnotice of the claims by registered letter.

DAMAGES

Heads of damage

In Italy, the heads under which damages can be recovered are property damage29 andpersonal damage.30 Property damage includes all the costs and expenses incurred by theplaintiff, eg medical expenses, costs of nursing care, damage to property, costs of carrepairs, and all other expenses which are a direct result of the accident.31 This headingalso includes loss of past and future earnings.32

Personal damage includes physical and psychological pain and suffering andpatrimonial damage (which includes loss of earning capacity). It also includes moraldamages, eg aesthetic damage, prejudice to public relations, worry and fright.

Interest

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27 Road Traffic Code, Art 193, Legislative Decree No 285 of 30 April 1992, in the revised text ofLegislative 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.

Interest accrues on damages from the date of the accident.33


Damages are usually awarded by way of a lump sum, but arrangements for periodicpayments may be agreed by the parties.


Interim payments are sometimes awarded if the plaintiff can prove that he hasimmediate financial needs which result from the accidents. The payment may begranted up to a limit of four-fifths of the final amount of compensation. Insurers willsometimes offer an interim payment on a voluntary basis in order to avoid payinginterest on the total award of damages.

A recent reform of the Civil Code of Procedure now provides for ‘the ordinancefor the payment of sums not contested’.34 This allows the judge to award an interimpayment 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 theplaintiff’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 awardedwhere there has been criminal behaviour on the part of the defendant. They areconsidered to be an abstract evaluation of the behaviour of the tortfeasor by a civilcourt 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 mostimportant law courts release publications containing compensation tariffs and levels ofdamages. Furthermore, one of the most widely read Italian newspapers, Sole 24 Ore, hasrecently published information pertaining to compensation criteria in force in the mostimportant Italian courts.


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34 Article 186b.

Italy


The courts base their decisions on quantum by examination of past decisions in similarcases. Only when considering loss of earning capacity is more detailed guidanceprovided to the courts.35

The courts can, in effect, award damages in a foreign currency by demandingpayment be in Italian lire in an amount consistent with the exchange rate for theforeign currency on the day of payment.


Plaintiffs must reimburse the social security organisation, INPS,36 from an award ofdamages for the benefits received by him. Social services has a direct right of action butno 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 salaryduring incapacity, but collective agreements often set out higher levels to be paid byemployers.

PROCEDURE


Service

A civil claim is initiated by writing to the defendant and his insurers. Recent legislationhas been passed which demands that the police report be made available on formalrequest and authorisation given by the magistrate.37 It is often possible to obtaininformation about the accident through unofficial routes, but a foreign lawyer mayencounter considerable difficulties in attempting to do so. It is therefore advisable toinstruct a local lawyer.

The Italian legal system is adversarial in nature. Italian civil law procedure isregulated by the Codice de Procedura Civile 1940. To commence proceedings, theplaintiff issues a writ (citazione) following the procedures set out in the code, including astatement of claim and a summons to the defendant, advising him of the date of the firsthearing. This will be served by a court bailiff (ufficiale giudiziario), and within 10 days ofservice 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 beforethe hearing.

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35 Royal Decree No 1403 of 9 October 1922.36 Istituto Nazionale della Previdenza Sociale.37 Article 329 of the Criminal Procedure Code.38 Law 353/90.

A minimum period of time must elapse between the service of a writ of summonsand the first hearing. This period of time ranges from 60–120 days, depending on thedistance between the place of domicile of the defendant and the court.38 Should the casebe before a Justice of the Peace whose competence is limited to road traffic accidents inwhich the value of the claim does not exceed LIt 30,000,000, the time period is reducedby half.

Service of proceedings is entrusted to the court bailiff39 and is carried out at therequest of the plaintiff’s lawyer. In a civil suit, service of proceedings takes place bydelivery 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 eitherthe addressee or the above, he will deposit the copy with the town hall and place anotice on the door of the residence of the addressee. He will then send a further noticeto the addressee by registered letter or regular post.

There is a 10 day time limit from the service of the writ of summons on thedefendant 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 CivilProcedure, which provides that, unless specific rules exist under internationalconvention, service to the competent consulate is possible. The bailiff is responsible forcross-border service and must send a copy of the writ to the defendant through a publicprosecutor, who forwards it to the foreign affairs department and then posts anothercopy 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 maybe vicariously liable for any damage caused by a driver of it. An employer may bevicariously liable for the damage caused by an employee. Where the defendant is aminor,40 liability falls on the person who legally represents him or who has custody ofhim. A guardian, parent or teacher may be held vicariously liable for damage caused bya minor.41

The defendant can bring a third party into the proceedings by serving a writ ofsummons on him. Where there is more than one person responsible for the plaintiff’sdamage, they can all be joined as defendants in the same action. If only one of moredefendants 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 whichare 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 havenot appealed will likely undergo judgment by default.

Level of court

The level of court in which proceedings must be commenced will depend on the


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39 Ufficiale giudiziario.40 Under 18 years of age.41 Article 2048 of the Civil Code.

Italy

predicted value of the claim and the subject matter and complexity of the case. TheGiudice di Pace handles claims of a value below LIt 5,000,000, and also road traffic andboat accidents up to a value of LIt 30,000,000. The Pretore deals with claims of LIt5,000,000–50,000,000. 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 toreach a settlement between the parties at the first hearing.

Evidence

Both the judge and the plaintiff’s lawyer are responsible for obtaining the evidence incivil cases. In criminal proceedings the prosecutor is mainly responsible. Evidence isgiven orally or in written form. In Italy, patients have a statutory right to see their ownmedical records. Records required for legal proceedings will be released exclusively tothe 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 expertfrom a list of those in the court’s jurisdiction. If there is relevant evidence in theplaintiff’s country, however, the court will entrust a competent Italian consulate toobtain 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 thecourt, but can also be compelled by the court to give evidence in person. Witnesses canbe compelled to attend court to give evidence by court order enforced by the police.


A payment into court may be made by the defendant where it is likely that a settlementmay be reached either before or during proceedings. Italian law stipulates that‘redeeming seizure’ proceedings may be used during proceedings.42 The defendant usesa payment into court as a precautionary measure against punitive interest if held liable.


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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.

Enforcement may be by seizure of goods, personal assets or property, or by specificperformance.43 The cost of enforcement depends on the amount of damages awardedas well as the kind of activity carried out to execute the enforcement. The mosteffective types of enforcement are also the most expensive, such as attachment with thedebtor’s bank account and real estate attachment. Costs are lower in the case ofpersonal property attachment which is much slower to enforce. It is the responsibilityof 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 interlocutoryinjunctions are used frequently.44

The plaintiff sends a notice (precetto) to the defendant asking him to satisfy thejudgment and warning of impending implementation of enforcement procedures. If thedefendant does not respond positively within 10 days, enforcement must take placewithin 90 days of the notice.

Cross-border enforcement is governed by the Brussels Convention 1968 and theLugano Convention 1988. If the judgment to be enforced comes from, or will becarried out in, a country which has not ratified these conventions, special provisionsfrom 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 oflegal fees recovered by the winner will depend on the charges of his lawyer. The courtmakes reference to the list of changes provided for by ministry decree. Only the costsof one lawyer can be recovered, so where both a foreign and local lawyer have beeninvolved, 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.

CHAPTER TEN

LIABILITY

The general standard of care in negligence is that of bonus pater familias.1 Mostcategories of tort are subject to regimes based on a combination of strict liability andfault, depending on the circumstances of the case and particularly the category ofplaintiff. In cases where, for the performance of a particular task, a special skill isrequired, undertaking that task without the necessary skill provides the basis forliability. In such a case, the defendant will be presumed to have been negligent inhaving undertaken a task for which he lacks the necessary skill, and no further proof ofnegligence 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 thedefendant must be established.3

• Employers liability is based on fault. The duty of the employer is to provide a safesystem of work. The basis of liability may also be contractual or ex lege.4 A higherstandard of care of one’s contractual obligations is required.5

• Cases of medical negligence are governed by a regime of liability based onnegligence. The onus is on the plaintiff to prove that the defendant acted outsidenormal 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 isnot possible for a plaintiff to be held 100% contributorily negligent, as this is perceivedas implying that the defendant was not at fault at all.

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1 Section 1032(1) of the Civil Code.2 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 toothers.’

3 Culpa aquiliana, as defined in ss 1031–33 of the Civil Code.4 Occupational Health and Safety Protection Act 1994, Act VII of 1994.5 See De Majo, GC, Responsabilidad Penal Y Responsabilidad Civil De Los Profesionales, 1993,

Universidad De La Laguna.


A minor under nine years of age will not be held liable in civil law. This is the same fora minor under 14 years of age, unless it can be proved that he acted with mischievousdiscretion. The parents of a minor can be held vicariously liable if they fail to exercisedue care to the standard of bonus pater familias.

Where a plaintiff or defendant is not capable of conducting his own affairs, acurator 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 JudicialProcedure) of the Code of Organisation and Civil Procedure.6 Domicile is treated asbeing the place one intends to be one’s permanent home. If proceedings are brought atthe place of domicile of the defendant, which is different to the place of the accident, aMaltese court will apply the lex loci delicti. If the accident happened in Malta, but thedefendant is domiciled elsewhere, proceedings must be commenced in the foreigncountry.7 If the defendant is still visiting Malta at the time the question of jurisdictionarises, the courts of Malta will have jurisdiction.

The principle of exceptio privilegium applies to persons residing in Malta when anaction is instituted against them in the court of Gozo and Comino,8 and to personsresiding in Gozo and Comino when an action is instituted against them in the courts ofMalta.9 This means that, when the jurisdiction of a court is contested by one of theparties, 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 constitutea criminal offence.10 If the damage arises from a criminal offence, the limitation periodis the same as for that particular crime under the Criminal Code.11 It starts to run fromthe 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


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6 Section 741 et seq.7 The principle of lex domicilii applies.8 These are other islands in the Maltese Archipelago.9 Section 767 et seq of the Code of Organisation of Civil Procedure.10 Section 2153 of the Civil Code.11 Section 2145 of the Civil Code.

Malta

creditor has failed to exercise his right for a time specified by law’.12 If the plaintiff failsto exercise his right of action within the period of prescription, he loses his right ofaction.

The period of prescription may be interrupted by the filing of a judicial letter bythe creditor. The letter must be filed in the court registry before the lapse of the periodof prescription, and a copy served on the defendant not later than one month after thelast day of the period of prescription.13 Prescription is also interrupted by thedefendant, even informally, admitting liability. The effect of an interruption is that theportion of time elapsing before the interruption is disregarded, and the period ofprescription starts to run anew.14

If prescription is suspended, rather than interrupted, the time already elapsed priorto the suspension is included in the overall prescription period.15 Causes of suspensioninclude:

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 canagree 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. Aperson must have an annual income of less than LM 365 and not own assets in excessof the value of LM 500.

Legal aid claimants are completely exempt from any payment of legal fees andexpenses.

Maltese law does not specifically address the question of the availability of legal aidto non-residents. There is no law that explicitly restricts legal aid to only Maltese

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12 Section 2107(2) of the Civil Code.13 Sections 2128–30 of the Civil Code.14 Section 2136 of the Civil Code.15 Section 2126 of the Civil Code.16 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) Prescriptionalready acquired may be renounced.’

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 thenumber of hours worked, although in practice lawyers tend to charge for extra-judicialservices as well. This includes verbal and written advice, research in connection withthe preparation of written submission, and basically all other work performed at theoffice. New tariffs are due to come into effect, but it will also be possible for clients andlawyers to enter into specific agreements in respect of legal fees without reference tothe official tariffs. In matters of civil litigation, the legal procurator’s fee is equivalent to one-third of the lawyer’s fee.


There is no law restricting the use of legal expenses insurance by a plaintiff. Very fewhome contents insurance policies in Malta provide for legal assistance in bringing ordefending an action.

Trade unions

It is customary for a union to grant assistance to a member in the form of advice andalso the provision of legal services. Generally, the union lawyer will represent amember in his claim, although the member is free to choose another lawyer. However,financial assistance is not usual.



In principle, the criminal courts do not have the power to award compensation tovictims. Recently, however, a system has evolved whereby the criminal courts awardsuspended 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.


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 formalcomplaint by the injured party, criminal proceedings will usually be commencedautomatically. The only body which needs to be notified when a person is injured isthe Social Services Department for national insurance purposes.


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Malta

At the discretion of the court, the accident will be reconstructed on-site by theenquiring 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 abreach of confidence, they will usually make their evidence readily available to theplaintiff’s lawyer. Evidence will be obtained by formal request for a fee, depending onthe 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. Obtainingcopies of magisterial enquiries may require a few months. Where the suspect is aminor, or the police are still investigating, or if a court order exists prohibitingdisclosure, release will be delayed.


The criminal action is treated as being wholly autonomous from the civil action, withno reference being allowed in civil proceedings to a criminal conviction.18 Criminalconvictions cannot be pleaded in the civil courts and, generally, no weight is attachedto a criminal acquittal or conviction is a subsequent civil procedure. The possibility isseen as being inappropriate since the burden of proof is different in civil and criminalactions, the former being on the balance of probabilities and the latter being beyond areasonable doubt. At most, evidence already heard in criminal proceedings may beexhibited in the civil case in order to expedite matters.


Lawyers in Malta do not advertise their services. They have the right to call themselvesspecialists in the field of personal injury. Although there is no association of personalinjury 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 enquiryreports. The fee for the former is currently 3 Maltese Liri (LM). The fee for the latter will be moresubstantial, 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 civilaction. (2) The criminal action is prosecuted before the courts of criminal jurisdiction, and thepunishment of the offender is thereby demanded. (3) The civil action is prosecuted before the courtsof 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 oneanother.’

19 Courts of Justice, Republic Street, Valletta.

Maltese Chamber of Advocates and the Chamber of Legal Procurators.19

There is a distinction in Malta between lawyers and legal procurators. The latterrepresents 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. Legalprocurators may only plead before the inferior courts.

Where a person is legally aided, a lawyer will be appointed pro tempore. The lawyermay not refuse to undertake or continue the case to which he has been assignedwithout good reason. This is enforceable by fine or suspension from legal practice.20

INSURANCE


Third party insurance is compulsory for the operation of motor vehicles. The onlylimitations on indemnity are those stipulated in the insurance policy itself. TheEmployers’ Liability (Compulsory Insurance) Act 197421 also imposes compulsoryinsurance, although this legislation has not yet come into force.


A person could avoid taking insurance for motor vehicles. Unless the compulsoryinsurance is paid for, a road licence will not be issued. The police keep a database ofmotor vehicles and the respective dates of expiry of their insurance policies. The policeare unlikely actively to seek out an offending vehicle and remove its plate, but willinstitute criminal proceedings for failure to have a valid licence when they come acrossthem. 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 theaccident, 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. Thisvoluntary group of insurers may make ex gratia payments to the injured party from afund to which authorised insurers contribute.


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 toone 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.

Malta

the tortfeasor, except in motor vehicle cases where compensation may be soughtdirectly from the defendant’s insurer. Notice must be given to the insurer by means ofservice of a judicial act of the proceedings, and given before or within seven days of theconclusion of the evidence of the plaintiff.23 The insurer may then intervene in theproceedings in statu et terminis.24

DAMAGES

Heads of damage

Under Maltese law, the heads of damages for personal injury are: actual physical lossand expenses incurred;25 and loss of past and future earnings.26 No compensation isavailable for pain and suffering.27

Interest

Interest accrues on awards of damages from the date of the filing of the writ, providedthat a quantified amount of damages is claimed. Interest on unquantified claims willonly accrue once judgment has quantified the amount due.28


Damages are always paid in a lump sum and awarded in Maltese currency.


Provisional and interim payments are not awarded.

Punitive damages

Punitive damages are not awarded.

Bereavement damages

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23 Section 10(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Ch 104 of the Laws ofMalta.

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%.

Damages are not paid for bereavement per se, but only for the loss of earnings sufferedby dependants and heirs of the deceased.

Level of damages

There are no publications detailing and updating levels of damages in Malta. Inassessing in percentage terms the disability of the plaintiff, the courts will rely on theguidelines of the Social Security Act 1987. It does not provide guidance on theassessment of quantum, however. The method of assessment is based on judicialpractice.


The degree of permanent disability is multiplied by the number of lost years of workand the projected annual income of the plaintiff. The lump sum is normally reduced by20% for the benefit of receiving expected future earnings in advance. When themultiplier is very low, the deduction is less.


In general, Maltese courts disregard state benefits received by the plaintiff whenquantifying an award of damages. Payments for sickness or disability benefits are treatedas justified as the employee has a statutory obligation to contribute towards them. Thisis therefore not perceived as being double compensation.

Employers are under a statutory duty to pay an employee’s salary for the first sixmonths of his incapacity. The employer has no right of recovery for these payments.

PROCEDURE

Commencing proceedingsService

A claim is initiated in Malta by issuing a writ of summons or filing an applicationagainst 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 givinginformation 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, servicewill be carried out by publishing the writ in the government gazette or by affixing acopy on the residence of the defendant. There is a time limit of six months for this to


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29 For example, a second defendant could be brought in cases of employers liability where the employeris vicariously liable for a negligent act of an employee.

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 thecourt registrar in the records of the case.

If more than one person is responsible for the plaintiff’s injuries, they can all bejoined 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 courthearing the action. If only one of more defendants appeal, it is only that particulardefendant’s liability which is retried.

Level of court

The level of court at which proceedings will be commenced depends on the amount ofdamages likely to be awarded. The case will be heard before a superior court, the FirstHall of the Civil Court, if the claim exceeds LM 1,000, otherwise it is heard by aninferior court, the magistrates court.30

Court management

Maltese civil law is adversarial in nature. The average time from the commencement ofproceedings to the court hearing is four months. The court has control of the case inthis 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 agreedbetween 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 unusualcircumstances are involved, eg the summoning of foreign witnesses. The court appointsits own experts from its own jurisdiction. The ex parte opinions of experts of the partiesto the action are admissible but not binding on the court.31 Evidence is submittedeither orally to the court or by affidavit.

There is no statutory right in Malta to see medical records or details of treatmentgiven. A hospital or a doctor may refuse to release them, in which case the patient canrequest a court order for their release.

Witnesses

Witnesses can be compelled to attend court to give evidence by the issuing of asubpoena, followed by the issue of a warrant of arrest executed by the court marshal orthe police.

In civil matters, witnesses are bound to disclose all they know, as well as produce all

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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.

documents in their possession. The two exceptions to this rule are advocates and legalprocurators who owe a duty of confidentiality to their clients, and priests who owe aduty of confidentiality concerning knowledge received through confession. TheMaltese courts have, at times, recognised other exceptions such as the knowledge ofpsychiatrists, editors of newspapers, and architects.


Payments into court by a defendant would normally occur when the defendant admitsliability but contests the quantum of damages claimed by the plaintiff. In such a case, ifthe 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 might be a problem when the defendant does not have enough assets tomeet a judgment. The enforcement procedures used in Malta include warrants ofseizure, garnishee orders, warrants of impediment or departure, and prohibitoryinjunctions.

It is up to the parties to seek enforcement. It is not particularly costly to seekenforcement, although if moveable assets are sold by court order a valuation must firstbe submitted to the court for its approval. Judgments may be enforced provisionallypending appeal.

Cross-border enforcement is governed by the Code of Organisation and CivilProcedure (COCP), which also makes provisions for the enforcement of incomingjudgments from other countries.32 Reciprocal enforcement agreements also existbetween 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 thewinner’s costs. Where a claim is settled against an insurance company, it is commonpractice 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 topay, the plaintiff will have to pay all fees and expenses due. He then has a right to bereimbursed by the defendant.

If a foreign and a local lawyer have been involved it is likely that only the costs of


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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.

CHAPTER ELEVEN

LIABILITY

A major reform of civil law took place in The Netherlands on 1 January 1992 aftersome 40 years of preparation. The new law is primarily an amendment to the formercivil code to accommodate case law from the last 100 years. This chapter is based onthe new law, but it is important to note that, for accidents which took place before 1January 1992, the old law will be applicable.

In general, liability in The Netherlands is based on fault. The standard of the dutyof care is based on reasonableness or pater bonus familias with the burden of proof restingon 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 areliable 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. Thedriver of a motor vehicle is liable for all damage sustained by pedestrians andcyclists, unless he proves force majeure.3 If the driver proves that he acted in forcemajeure 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 basesliability 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 burdenis on the employer to prove either that he discharged his duties under the safetyrules and regulations, or that the accident was due to force majeure or was caused bygross contributory negligence on the part of the victim. Employers may bevicariously liable for the tortious acts of their employees.8

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1 Article 177, Rv. For further details, see Elders, JLM, ‘Simplification of the Taking of Evidence’, inWedekind, W (ed), The Eighth World Conference on Procedural Law: Justice and Efficiency, 1989, p 103,Deventer, The Netherlands: Kluwer.

2 ‘Risk liability.’3 Wegenverkeerswet 1994, para 185.4 Paragraph 6:174, Rv.5 Wet Geneeskundige Behandelovereenkomst.6 Paragraph 6:179, Rv.7 Paragraph 6:185, Rv.8 Paragraph 6:170, Rv.

• Some environmental accidents are governed by strict liability regimes, eg damageresulting 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 thecircumstances, all these defences can, in theory, lead to a reduction or complete oustingof a claim. A plaintiff can be held 100% contributorily negligent.


If the defendant is a minor, his parents or guardian are not obliged to ask the court’spermission to defend him. The court’s approval will be required, however, if theydecide not to defend him.

Parents can be vicariously liable for the acts of minors under 14 years of age.9 Theparents of 14 and 15 year old minors will be liable unless it can be proved that theycould not prevent their child from committing the tort.10

In cases relating to infants, parents and guardians can only start legal proceedings onbehalf of a minor as a plaintiff after authorisation by the Kantonrechter, the lowestcourt.

JURISDICTION

The rules for territorial competence are set out in the Civil Code. The BrusselsConvention11 applies where the other country concerned is a signatory to the treaty.Otherwise, jurisdiction is based on domicile where the defendant resides in TheNetherlands.12

Domicile is defined as the place where a person is registered on the civilregistration list of the town council. If the defendant is a company, the domicile iswhere the company is registered with the chamber of commerce. If proceedings arebrought at the place of domicile of the defendant which is different to the place of theaccident, the law of the place of the accident will apply. If the domicile of the


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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.

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 Netherlandsand the defendant is domiciled elsewhere, the proceedings can be commenced in TheNetherlands. If the other state is a party to the Lugano Convention 1988, thecompetence of the Dutch Court will be based on Article 5 of the Convention. Partiescan 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 becomesaware of the damage and can attribute responsibility to the defendant.14 Shorterlimitation periods apply in certain cases; eg in road traffic cases against in insurer a threeyear limit applies. There is also a three year time limit in cases of product liability andpublic transportation. If the five year limitation period does not run because theplaintiff is either unaware of the damage or cannot identify the person responsible, thenan overall limitation period of 20 years will apply.

The limitation period can be extended by consent of the parties, but only onexpiry. The courts do not have the discretion to extend the limitation period, but alsocannot invoke the limitation on its own. It is left to the concerned party to invoke thelimitation explicitly.

A limitation period can be interrupted by the start of proceedings, a writtensummons, acknowledgement by the liable party or negotiations. There is no specialrule 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. Theymay apply15 to institute proceedings either free or for lower fees.16 The legal aidscheme in The Netherlands17 does not place any restrictions on choice of lawyer. Aforeigner 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.

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 inthe last few years. Currently the value of the claim should be more than Dfl 400. Themost 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 savingsof less than Dfl 14,800. In most cases the income of the partner will be taken intoconsideration. If the person owns his house, then the difference between the value ofthe 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 Hewill be entitled to extra payments if he spends an exceptional number of hours on thecase. In civil law, the client will have to pay a small contribution toward the cost of hisaction and a part of the court fees himself.20

The Ministry of Justice, which funds the legal aid scheme, will recoup the costs oflegal aid from the losing party. These costs have priority and any remainder of thedamages is then paid to the winning party. In personal injury cases, lawyers usually askfor conditional legal aid for the plaintiff, so that the legal aid will be void if the plaintiffwins the proceedings and receives a substantial amount of compensation. The plaintiffwill be left to pay the lawyer by himself. In personal injury cases which are settled outof court, the insurer will often agree to pay the fee of the plaintiff’s lawyer according tohis hourly rate as long as these costs are reasonable. In such a case, the conditional legalaid will be withdrawn because there is no need for it. If the case goes to court, thecourt will award costs. If the plaintiff receives a substantial amount of money, the legalaid 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 chargeon an hourly basis and rates vary.


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.

The Netherlands

Some trade unions will provide legal assistance to union members.



Dutch criminal courts have the power to award compensation for criminal injuries, andsince April 1995 there has been no cap on the amount of compensation which can beclaimed in a criminal case. If the plaintiff does not submit a formal claim, the court canorder compensation regardless as part of the criminal sentence. If the court orderscompensation of its own volition, rather than at the request of the victim, he will notbe prevented from pursuing a civil action. In practice, such awards of compensation arelimited to relatively small amounts. A claim may be declared inadmissible if the legalquestions are too complicated. In such circumstances, the victim remains free to pursuea civil action.

As different to civil awards, there are no strict criteria for the assessment of thequantum of criminal compensation. The plaintiff must prove the extent of damage hesustained to the court.


A standard accident form can be obtained from the Dutch organisation of carinsurers.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 shortdescription of the accident. This evidence may be used in court in conjunction withthe evidence of the prosecution and police which is generally made available to theinterested 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 whetheror 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 willoften help with the investigation. Special bodies such as the Labour Inspectorate,22 theHealth Inspectorate23 and the Environmental Inspectorate24 have well-qualified expertsin their respective areas.

There is a right to access of medical records in The Netherlands, but the plaintiff

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21 NVAA, Zoetermeer, PO Box 7070, 2701 AB Zoetermeer.22 Arbeidsinpectie.23 Inspecteur voor de Volksgezondheid.24 Milieudienst.25 Vertrouwensarts.

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 thepolice station involved and the date on which the police report was sent by the policeto the prosecutor can facilitate the request.

The Ministry of Justice has endeavoured to make it easier for victims to receive theinformation needed for legal actions. It is no longer necessary, therefore, to be a lawyerto obtain this information, and where it used to take three to six months to obtain acopy of a police report, it is now possible to receive the information much morequickly. 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 Theprosecutor might refuse to release the police report if he needs secrecy for his owncriminal case and fears that the release might compromise the outcome of the criminalcase, but this happens only rarely since the introduction of this new policy.


A criminal conviction can be pleaded in a civil court as conclusive proof of fault. Aforeign conviction, however, cannot. Neither criminal proceedings nor a foreignprosecution will interrupt the limitation period.


If the defendant is unable to pay the compensation, a foundation for victims of crimecan award some compensation.27 This foundation gives primarily-financial help tovictims and is available for serious injuries and serious crimes. If it pays financialcompensation to the victim, it then has redress against the defendant. The maximumamount of compensation awarded is 50,000 Dutch guilders (Dfl) for material damagesand Dfl 20,000 for immaterial damages. Another foundation offers legal andpsychological assistance to victims of crime.28



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26 Wet Openbaarahdid Bestuur (Administration Publicity Act).27 Schadefonds Geweldsmisdrijven.28 Slachtofferhulp.29 Chorus et al, p 197.

The Netherlands

Litigating parties have an obligation to retain counsel unless the case is before theRantongerechten, where parties are allowed to represent themselves or be representedby foreign lawyers.29

There is no distinction between solicitors and barristers in The Netherlands. Eachlawyer is qualified to provide total legal assistance.30

Dutch lawyers are allowed to call themselves specialists in the field of personalinjury. This is, however, currently under review by the Bar. The Bar Association,31 theLegal Aid Bureaux32 and the Dutch Union of Personal Injury Lawyers33 provideinformation about lawyers who specialise in personal injury, but their lists are notconclusive. There is an association of personal injury lawyers as well as an organisationof lawyers and doctors involved in personal injury cases.34 Most lawyers advertise theirservices.

Lawyers have a right of audience in courts all over the country but will have to actunder 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 aperson cannot find a lawyer willing to act under the legal aid scheme, the chairman ofthe local Bar association will appoint a lawyer.

INSURANCE


Insurance is compulsory for the operation of motor vehicles. There are no limitationson indemnity.


It is a criminal offence to drive uninsured, but there is no system which ensures thateveryone 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, ‘Courtsand lawyers facing complex litigation problems’ in Snijders, HJ and Ynzonides, M (eds), The NinthWorld 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.

driver was in breach of the terms of his insurance contract. If the driver is uninsured afoundation will pay compensation to the victim.35


In the case of road traffic accidents, proceedings can be brought directly against thedefendant’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 moredifficult to recover immaterial damages from insurers. If an insurer knows that it willhave to pay a substantial amount in the end, it will normally be prepared to make aninterim payment as long as it does not put it at a disadvantage in negotiations over thetotal amount.

Interest

Interest accrues on damages from the date of the accident and is claimed by registeredletter.36


The courts award damages in the forms of both lump sums and periodic payments.


Interim payments are used where there may be a significant delay in finalising anaward. This is requested in a separate summary procedure. The plaintiff must convincethe court that he will most likely succeed in the proceedings under way, and that hehas an urgent need for early access to part of the award. Insurers will make an interimpayment 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 theoption of a final settlement.


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36 Interest is currently fixed at 7%.

The Netherlands

Punitive damages

Dutch courts do not award punitive damages.

Bereavement damages

Dutch law does not know bereavement damages by such a term, but compensationwill be paid to spouses, children and relatives who were financially dependent on thedeceased. 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 ofdamages.37

Only legal costs which were reasonably necessary will be claimed in the award ofdamages. The cost of bringing proceedings in relation to the award of damages are aserious consideration in determining whether it will be worthwhile to pursue a claim.


Assessment of quantum of damages is based on restoring the plaintiff to the position hewould have been in had the accident not been sustained.

The courts can award damages in a foreign currency.


Any benefits received by the plaintiff from the social security system are deducted fromthe 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 rightof 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 tothe plaintiff.

If an employee is unable to work due to sickness or injury, he is entitled topayment of 70% of his salary. The first year’s compensation will be paid by theemployer.38 The employer has a right of reimbursement to a maximum of the damagesthat 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’.

Collective employment contracts (CAOs) between unions and management areobligatory for all employees of certain types of industries and businesses. The terms aregenerally that the employer must pay sickness benefits of 100% of salary for two years.

CIVIL PROCEDURE


Service

A civil claim is initiated in The Netherlands by sending a registered letter to thedefendant advising him to report the claim to his insurance company. To initiateproceedings, the plaintiff must send a summons39 to be served on the defendant40 by aprocess server or bailiff.41

A foreign lawyer will not necessarily require the assistance of a local lawyer ininvestigating the accident, although fluency in either English or Dutch will facilitate theinvestigations. Lawyers from other countries of the European Union are allowed toappear 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 notifythe court of his defences before the hearing. The judgment is given one to three weeksafter the hearing.

A writ of summons notifying the defendant of the proceedings must be given onemonth before the hearing at the county court and only eight days before the hearing atthe district court. The parties can agree on postponing the time limits for writs ofsummons.

In urgent matters it is possible to commence summary proceedings in both levels ofcourt. Normally, the hearing will take place one to three weeks after request of thesummary procedure. The judgment is usually provided two to four weeks after therequest. In extremely urgent cases, it is possible to arrange for summary procedure andjudgment all within one day.

If more than one person is responsible they can be joined as defendants in the sameaction. The defendant can bring in a third party by request. If the plaintiff objects, thenthe 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 ofproceedings will be connected to each other in that judgment can be given in bothcases at the same time. The plaintiff can bring in a second defendant. Where only oneof more defendants appeals, only his involvement will be retried.


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39 Cagvaarding.40 Article 1, paras 2 and 5 of the Dutch Civil Code (Rv).41 Deurwaarder.42 Articles 16a–f of the Advocatenwet.

The Netherlands

Level of court

Proceedings usually commence in the county court, the Kantongerecht, which iscompetent for claims of up to Dfl 5,000 and some special areas such as employer’sliability. The district court, the Rechtbank, deals with claims valued above that. Atcounty 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 givingmore directions at an early stage as to how to proceed with the case. Often, a hearing isheld 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 areset out in the Dutch Civil Code.44 Part I lays down the rules for litigation in the civilcourts.45

The burden of proof rests with the plaintiff. The plaintiff will introduce his ownexpert evidence. The courts will provide their own experts, will try to focus theproceeding 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 besummoned to give their evidence in person. Where a witness resides outside thejurisdiction, 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 thecourt.

Witnesses are legally bound to appear in court if summoned. Reluctant witnesseswill be escorted to court by the police following the issue of a court order. This israrely done since a reluctant witnesses does not tend to give statements which arefavourable for the party that had him arrested. A defendant cannot be compelled todisclose his evidence.


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43 Chorus, JMJ, Gerver, PHM, Hondius, EH and Koekkoek, AK (eds), Introduction to Dutch Law forForeign 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.

There are no payments into court by defendants in Dutch proceedings. The only wayfor the defendant to save costs is by settling the claim before the proceedings arebrought before the court.


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 thejudgment by the bailiff. Enforcement is left up to the parties, and the court is notinvolved.

The defendant must pay the judgment within two days. If he fails to do so thejudgment can be enforced by seizure of the assets or salary of the defendant. Thedefendant will also have to pay for enforcement costs. It is possible to freeze thedefendant’s assets before proceedings are even commenced by permission of thepresident of the county court. The defendant can object to this by asking for anannulment in a summary procedure. The freeze will only be annulled if the presidentof the court is of the opinion that the claim of the plaintiff does not have a reasonablechance of being successful.

Cross-border enforcement requires an excequatur from the president of the countycourt.47 This will usually be awarded unless the president is of the opinion that theproceedings 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 andfinal payment.48

COSTS

The losing party generally pays the costs of the other side.49 However, the costs offoreign 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.

CHAPTER TWELVE

LIABILITY

The standard of care owed in most categories of tort is based on reasonableness, withsome of the following characteristics:

• Road traffic accidents are governed by fault-based liability.

• Employer’s liability is governed primarily by fault, according to which theemployer 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 thatthe defendant acted outside normal medical practice.

• Fatal accidents are governed by a fault-based regime. The burden is on the plaintiffto prove that the defendant’s negligence caused the death and consequential loss tothe 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 andcommon law.

• Accidents caused by animals are based on both fault and strict liability, dependingon the category of animal.

• Environmental accidents are based on fault. The burden of proof is on the claimantto 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 aregime 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 ofcausation, foreseeability or remoteness of damage. Most defences will oust the injuredperson’s claim, but contributory negligence will reduce the compensationproportionately. In theory, a plaintiff may be found to be 100% contributorilynegligent, although in practice this is rare.

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NORTHERN IRELAND


A minor can be held liable at any age. He is sued through a parent as next friend orguardian. The parents of the minor will only be held vicariously liable for hisnegligence if they were also in breach of their own duty of care to the plaintiff. Aminor cannot sue in his own right. Court approval is not necessary before proceedingsare instituted, unless there is no legal guardian for the minor. The court must appointone for proceedings to be commenced. Where the plaintiff or defendant is notmentally capable of conducting his own affairs, a controller of affairs will be appointedby the court under the mental health legislation.

JURISDICTION

Place of domicile is defined as being the place where a person stays and lives withoutthe intention of returning somewhere else.1 If the accident happened in NorthernIreland and the defendant is domiciled elsewhere, proceedings must be commenced ineither the place of domicile of the defendant or the place of the accident. Under theapplicable rules of private international law, the laws of the place of the accident mustbe 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 ofknowledge of the injury, which is generally the date of the accident. The limitationperiod can be interrupted by the death of the injured person before the expiration ofthe limitation period. The time limit for the causal action for the estate of the deceasedis 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 hisright to rely upon it as a defence. The defendant may do so by either himself, or hisinsurers, expressly declaring to the plaintiff that they will not rely on the limitationperiod or, admit liability, that the dispute is only as to the quantum of damages to beawarded. 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 itappears equitable, having due regard to the degree to which the limitation prejudicesthe plaintiff or any person whom he represents. The decision of the court to extend thelimitation period would prejudice the defendant or any person he represents.


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1 Animus revertendi, Brussels Convention 1968.

Northern Ireland

If the plaintiff is a minor or a mental patient, the limitation period will start fromwhen the party either reaches the age of 18 or dies, whichever is earlier, or whenmental 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 withlegal actions.

Some solicitors are party of a fixed-fee interview scheme by which the clientreceives a 30 minute interview for a nominal flat fee.2 Information about this non-Statescheme and a list of the solicitors participating in it is available from the Legal AidDepartment of the Law Society of Northern Ireland and the Citizens Advice Bureaux.

The State-run schemes available include a legal advice and assistance scheme, anassistance-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 isresident 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’sbehalf under the scheme. If he spends an exceptional amount of time on the case he isentitled to extra payment.

The claimants may have to pay a contribution towards the costs in the legal adviceand assistance scheme. Eligibility for the ABWOR scheme is based on income.Applications for the civil legal aid scheme must pass the financial eligibility and meritstest of the Law Society’s Legal Aid Department.

The legal aid board is entitled to recoup its expenses from the damages awarded tothe 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 acontingency 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 inthe High Court. Guidelines are laid down by local associations for charges for HighCourt actions.

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2 At the time of writing this fee was £5, including VAT.


Legal expenses insurance is being increasingly relied upon by litigating parties in thisjurisdiction. Some home contents insurance policies offer assistance with legal expensesas well.

Trade unions

Unions will sometimes assist a member in either bringing or defending an action,depending on union rules.



To qualify for compensation the crime must be reported to the police within 48 hoursof its occurrence, and the victim’s lawyer must serve a notice of intention to apply forcompensation on the Secretary of State for Northern Ireland within 28 days. Withinthree months of the service of this notice of intention, the application for compensationmust then be made. These time limits can be extended in extraordinary circumstancesto a maximum of three years from the date of injury.3 The quantum of awards forcompensation by the criminal courts are assessed on the same basis as the civil courts, iethe injury to the victim. The awarding of damages does not prevent a civil claim beingmade, but recovery would be subject to reimbursement.


When a person is injured, the police are always called and will automatically start toinvestigate if it is a road traffic accidents. However, criminal proceedings are notautomatically commenced.

The police will only reconstruct an accident in exceptional circumstances, such aswhere the accident involved fatalities and causation could be made clear, or to obtainwitnesses.

The only other body which must be informed of an accident involving personalinjuries is the Health and Safety Executive if the accident was work-related.

Criminal proceedings do not interrupt the limitation period, and neither willprosecution 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).

Northern Ireland

Release of evidence

The police will make their report available to the solicitor for a prospective plaintiff fora 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, orthe police have made a decision not to prosecute. A delay in the criminal proceedingscan sometimes delay disclosure, but it generally takes three to six months to obtainpolice reports.


A criminal conviction may be pleaded in the civil court. The effect will be to reversethe 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 thefacts on which the criminal conviction was based. Foreign convictions may also bepleaded in the civil court.


Lawyers in Northern Ireland advertise their services but do not have the right to callthemselves specialists in the field of personal injury. Information about lawyers whospecialise in personal injury can be obtained from the Law Society and the Associationof Personal Injury Lawyers.

Where a person is legally aided, there are no restrictions on choice of lawyer.

INSURANCE


Insurance is compulsory for road traffic accidents and employers’ liability.


Where the defendant is in breach of any of the terms of his insurance policy, theplaintiff will still be paid by the insurer, which will then have a right of action forrecovery against the defendant.

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4 At the time of writing the fee was £44.

Whilst it is required by law that motor vehicle users and employers hold insurancein respect of their liabilities, there is no foolproof method of enforcement and thussome people avoid taking out insurance. In respect of road traffic accidents, the MotorInsurers’ Bureau may provide compensation to the plaintiff on formal notification ofthe claim by letter.


Proceedings cannot be brought against the tortfeasor’s insurer directly.

Formal notice must be given to the insurers before issuing proceedings to securethe insurance cover in road traffic accidents.

DAMAGES

Heads of damage


• General damages. This includes pain, suffering and loss of amenity. The pain is thatwhich is immediately felt upon the nerves and brain which is directly related to theaccident 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 carefor an invalid or sick spouse, impairment of housekeeping ability or spouse’s loss ofearnings.7 General damages also includes the physical injuries themselves.

• Special damages. This includes past loss of earnings, fringe benefits and lost chancesof promotion, loss of future earnings and loss of pension. It also includes handicapon 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 mustnow employ others to do so.

• Medical expenses privately incurred.

• Property damage.

• Other expenses incurred as a direct result of the accident. This includes travellingexpenses to hospital and visits to the doctor, insurance excess and the cost of repairsto the car.


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5 For example, where the plaintiff has to undertake work for which he is overqualified.6 Where the accident happened during a holiday period.7 Where the spouse gives up work to look after the plaintiff.8 Where the plaintiff has suffered a disability which restricts him in his choice of employment and

consequently his earning capacity.

Northern Ireland

Interest

Interest accrues on damages at the discretion of the court, from the date of issue of theproceedings.


Damages may be awarded by way of a lump sum or periodic payments.


The courts can award interim payments, and sometimes insurers will make an interimpayment on a voluntary basis. Provisional damages are awarded where there is a risk ofthe 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 thedeceased 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.


The guiding principle for assessment of the quantum of damages to be awarded isrestitutio in integrum, ie restoring the plaintiff to the position he would have been in hadthe injury not been sustained.

The court in Northern Ireland will not award damages in a foreign currency.


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 Stateorgans, with only the net balance being paid over to the plaintiff.

Employers have no statutory obligation to pay salary during incapacity, althoughsuch 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.

PROCEDURE


Service

A claim is initiated by writing to the defendant and his insurers. The action is initiatedby serving proceedings upon the defendant or solicitors who have been instructed bythe defendant to receive it on his behalf. Service is carried out by the claimant’ssolicitors. Where criminal proceedings are being considered or indeed being brought, itwill not be possible to obtain copies of the police report until the criminal proceedingsare concluded.

In principle, a foreign lawyer may obtain details from the authorities investigatingthe accident, but for practical reasons it is advisable to instruct a local lawyer from theoutset.

Service of proceedings is by first class post for a claim in the county court, and firstclass post for a claim in the High Court. A writ must be served within 12 months ofissue.

If more than one person is responsible for the damage to the plaintiff, they can allbe joined as defendants in the same action. The plaintiff may bring in a seconddefendant. The defendant may bring in a third party by issuing third party noticeproceedings. If only one of more defendants appeal, in effect, the whole action isretried and not only the appellant’s liability.

Level of court

Proceedings are commenced in either the county court or the High Court, dependingon the value of the claim.10

Court management

The legal system in Northern Ireland is adversarial in nature. The court does notusually give directions on how to proceed with a case. The plaintiff’s lawyer has controlof proceedings and tends to dictate the pace.

The average time from commencement of proceedings to the hearing is difficult todetermine, 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 £15,000commence in the High Court.

Northern Ireland

Evidence

It is unusual for the court to appoint experts, as the parties are generally responsible forcollecting and presenting the evidence. Parties are compelled by rules of court todisclose their documentary evidence.11

Patients have a statutory right of access to their own medical records held incomputerised form, or where records in other form were made after 30 May 1994, orwhere earlier records are necessary to make other records which have been releasedintelligible.12 Records may be released to the plaintiff’s solicitor. The court isempowered to grant orders for the release of medical records, but generally the courtsprefer to view reports from consultants.

Witnesses

Evidence is given orally, and all witnesses are required to attend court, save inexceptional circumstances such as serious illness when provision can be made to takeevidence on commission. If the court does appoint an expert it will be in the plaintiff’sjurisdiction. Witnesses can be compelled to attend court by subpoena.


The defendant may make a payment into court before a case is heard – a lodgementcost. Penalties are imposed if the court’s award does not exceed the lodgement.


It is up to the parties to seek enforcement of an award. Enforcement is likely to be aproblem where the defendant is insolvent.

Civil judgments of the county courts and High Court are enforced by theEnforcement of Judgments Office 13 The party seeking enforcement will place arequest to the office to send the debtor a notice of intent to enforce, and requiring thedebtor to satisfy the judgment within 10 days. If he fails to do so, the office will carryout enforcement by the seizure and sale of assets, or by the arrangement of paymentsdirectly from the debtor’s salary at source to the creditor.

The rules for cross-border enforcement are governed primarily by internationalconvention.14

Enforcement procedures are generally costly but are recoverable from the debtor.

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11 For example, Order 25 regarding the disclosure of medical evidence and Order 38 regarding thedisclosure 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.

COSTS

The costs of the winning party are usually paid by the losing party in both out-of-courtsettlements and court awards. If both a foreign and local lawyer have been involvedrepresenting the winning party, it is likely the costs of both will be recovered, subjectto the fixed costs.


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CHAPTER THIRTEEN

LIABILITY

Generally speaking, Russian civil law is primarily fault-based. The standard of carevaries, depending on what is considered reasonable behaviour of the parties under thecircumstances.

The burden of proof is placed on the plaintiff in civil cases and on the State incriminal ones. The situation is the same for cases of employers’ liability, medicalnegligence, product liability, occupiers’ liability, accidents caused by animals,environmental incidents, train accidents, aeroplane crashes and fatal accidents. In roadtraffic accidents, however, the onus is on the defendant to rebut the presumption ofnegligence by proving that the victim contributed to the accident either intentionallyor negligently.

DEFENCES

Defences may either reduce compensation or oust the plaintiff’s claim entirely. Aplaintiff can be found to be 100% contributorily negligent.


If the defendant is a minor, he is liable from 15 years of age. If he has no property withwhich 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 arepresentative 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. Theplace of domicile of a company is its registered location which is indicated in thefounding 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 Codedefines the place of residence of an individual as the place where he residespermanently or spends most of his time.

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RUSSIA

An action for damages can be commenced at the place of domicile of the defendantor the place of the accident. Under the Civil Procedural Code 1964, Art 118, thiscognisance is determined by the preference of the plaintiff. If an action is brought inone 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 accidentmust 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 specificcategories of personal injury.1 Limitation periods vary according to the relevantlegislation. The general limitation period is three years, and cannot be extended in casesof personal injury.

The limitation periods start to run from the date of knowledge of the injury, whichis generally the date of the accident. Only forces majeure can interrupt the limitationperiod. The parties cannot extend the limitation period by consent. The courts mayextend 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 ownedlegal firms (of which there is only a small number). State law firms charge less than thefees determined by private law firms. Most civil law services are provided for a fixedfee, while the criminal law services may be conducted free of charge, if they areperformed by the militia (police) or Prokuratura (Prosecutor’s office).

Contingency fees

Russian lawyers sometimes operate on a contingency fee basis. There is usually nofixed level of charges; it is left up to the lawyer to calculate his charges. However, therates of State owned legal firms are fixed. Most legal firms do have established hourlyrates for the performance of certain legal services. The lawyer calculates the chargesbased on the rates established by the firm for an hour of services rendered to the client.


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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 theEnvironment, and the Decree of the Supreme Soviet of the USSR, 18 May 1981, which deals withpersonal injury caused by the acts of State authorities.

Russia


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 donot include a provision for this either.



Russian criminal courts are empowered to award orders for compensation to theplaintiff on the submission of a formal claim. If damages are awarded by the criminalcourt, it prevents a civil claim being made at all.

The criteria for assessing damages are the same as for civil awards. If the defendantis unable to pay, the State will not pay compensation to the victim.


When a person is injured, the police are always called and they automatically start toinvestigate. Criminal proceedings are instituted on request of the victim or the policeon the basis that a crime was committed. The police may reconstruct an incident toassist them in their investigation.

Criminal proceedings will not interrupt the civil limitation period but can be foundto be a reasonable excuse for exceeding it. Similarly, prosecution in a foreignjurisdiction will not interrupt the limitation period.

Release of evidence

The prosecution or police make evidence available to the plaintiff’s lawyer on formalrequest. There is no fee for this. As a rule, the police are not keen to release evidenceuntil the investigation is over. It usually takes up to several months to obtain policereports.


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 veryrare. Foreign convictions cannot be pleaded.

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There is no existing body in Russia that serves an equivalent function to a criminalinjuries compensation board.


Lawyers do have rights of audience in Russian courts all over the country, althoughthere is a slight difference between an advocate (an Attorney) and a lawyer. Both thelawyer and the advocate have the right to represent clients in court, but it should betaken into consideration that the role of a lawyer is to assist his client in court as aperson possessing legal knowledge, whereas the advocate has the right to represent hisclient’s interests in court.

Lawyers do not call themselves specialists in the field of personal injury, nor is therean equivalent to an association of personal injury lawyers. They may advertise theirservices. Information about personal injury lawyers is best obtained from personalcontacts or advertisements.

Where a person is legally aided there is no choice of lawyer. Lawyers cannot refuseto act under the legal aid scheme, so the court does not have to appoint them ex officio.

INSURANCE


In general there is no compulsory insurance in Russia.


Where a defendant is in breach of the terms of his insurance policy, the insurancecompany will not pay the plaintiff. Where a driver is uninsured there is no governmentbody which will adopt the claim.


It is not possible to bring proceedings directly against the insurance company ratherthan the tortfeasor.

There is no need to inform insurers before bringing proceedings.


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Russia

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, additionalfood, medication, specialised transport and requalifying for a different profession.2

The rules of medico-legal examination on the degree of seriousness of physicalinjury adopted by Order of the Ministry of Health of the USSR, dated 11 December1978, 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 resultingin short-term health disorders or an insignificant permanent loss of work capacity; andminor physical injury that does not result in such circumstances.

Interest

No interest accrues on awards of damages. The judgment is taken as indicating theconcrete sum of the damage sustained. Interest is used only to adjust for inflation.


No information is available at the time of writing.


Interim payments are ordered by the court where a claim will take some time tofinalise 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 adefendant is ordered to pay compensation in excess of the actual loss sustained by theplaintiff.4

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2 Article 1085 of the Civil Code (Part II).3 Article 1092, s 2.4 Article 1064, s 3.

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 followedby the courts.


There are no provisions expressing allowing or prohibiting awards of damages in aforeign currency. It may be possible where the injured party is a foreign citizen and herequires medical treatment in a foreign country.


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 duringincapacity is yet untried.

PROCEDURE


Service

A claim is initiated by writing to the court. Usually, Russian lawyers, especiallymembers of the Bar (advocates), are entitled to request documents. Foreign lawyers areentitled to request information or documents, but obtaining them is greatly facilitatedby the involvement of a local lawyer.

Local rules for the service of proceedings are that an application to the court mustbe submitted. The copy of the application must go to the defendant, and court dutiesmust be paid. The only time limits are the limitation periods which must be compliedwith. The rules of cross-border service are unclear.

If more than one person is responsible for the injury they can all be joined in thesame action. It is possible for the defendant to bring in a third party by declaring it inthe trial. The plaintiff can bring in a second defendant. If one defendant of moreappeals, the whole action will be retried regardless of the number of defendants.


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Russia

Level of court

Usually, proceedings are commenced at the lowest level – the district courts. Theimportance of the case and the value of the claim are criteria for proceeding in a courtat a higher level.

Court management

The average time from the commencement of proceedings to the court hearing variesfrom case to case. It may be several months, or even years. In criminal cases, before thecase goes to court, the procurator controls the case. In civil cases the court controls thecase.

Evidence

The Russian legal system combines elements of both adversarial and inquisitorialprocedures. Despite the fact that the parties are expected to present their ownarguments and evidence, the judge will actively investigate the circumstances of thecase as well.

The parties in civil law cases, and the State in criminal cases, are responsible forobtaining evidence. The court normally listens to both sides and then refers to his ownevidence before reaching a decision.

Patients have no statutory right to medical records, but they may sometimes bemade 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 andpolice.

Witnesses

Experts are independent, instructed by either the parties or the court. The court cannotappoint 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 veryrarely, written documents will be used. Witnesses are obliged to attend court to giveevidence, enforced by a court-issued subpoena.


Although payments into court are used in other civil proceedings, there are noprovisions for a defendant to make a payment into court in an action for personal

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injuries.


The enforcement of a judgment is by use of an enforcement paper which is sent to thedefendant’s home, work or bank. It is not costly to seek enforcement. It is left up tothe plaintiff, but occasionally it is done by the court. Enforcement is likely to be aproblem where the defendant has no assets. Cross-border enforcement is subject tocomplicated rules and remains largely untried, although some bilateral treaties exist withformer socialist countries.5

COSTS

Whether costs will be recovered from the losing party will depend on the terms of thesettlement 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.

CHAPTER FOURTEEN

LIABILITY

Generally speaking, liability for personal injuries in Scotland is fault-based with astandard of care based on reasonableness. Particular types of harm include the followingcharacteristics:

• Road traffic accidents are governed by a scheme of fault-based liability. If policeproceedings have been initiated, the burden of liability is beyond doubt.

• Employer’s liability is fault-based. An employer owes a common law duty to hisemployees to take reasonable care for their safety.

• Under the National Health Service the regime of liability in cases of medicalnegligence is based on fault. The onus is on the pursuer to prove that the medicalpractitioner acted outside normal medical practice.

• Product liability is governed by a limited form of strict liability, subject to somedefences.1

• Occupier’s liability is governed by a fault-based regime based on reasonablenessunder statute2 and common law.

• Accidents caused by animals are subject to strict liability in some cases and fault inothers.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, failureto establish foreseeability, failure to establish negligence and volenti non fit injuria.Contributory negligence acts as a partial defence, reducing the amount ofcompensation payable by the defender, while the other defences are complete ones

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SCOTLAND

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1 For further details see Marshall, EA, General Principles of Scots Law, 5th edn, 1991, pp 490–91,Edinburgh: W Green/Sweet and Maxwell.

2 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’.

3 The Animals (Scotland) Act 1987, for example, imposes strict liability and provides in s 1(1) that, ifan animal belongs to a species which is likely to cause injury, the keeper of the animal will be liablefor any damage it causes.

which exonerate the defendant from liability. In theory a pursuer can be held 100%contributorily negligent.


Defenders who are minors can be held liable at any age but in limited circumstances. Ifthe minor cannot be held liable, his parents may be held liable. Minors must be suedwith the consent and concurrence of their curators. Pupils cannot be sued, but theirtutors at law can. Pursuers who are minors can sue with the consent and concurrenceof 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 mentallycapable of conducting his own affairs. The court can alternatively appoint a curator adlitem 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 theaccident happened in Scotland but the defender is domiciled elsewhere, proceedingsmust be commenced in either the place of the accident or the place of domicile of thedefender.4 The location of witnesses and the convenience of the parties may also betaken into consideration. If proceedings are brought at the place of domicile of thedefender which is different to the place of the accident, the court will apply the law ofthe place of the accident. The only exception will be where both parties are Scottishand live in Scotland.

The defender may apply to have the proceedings transferred to another jurisdictionon the grounds of forum non conveniens. The pursuer may also apply if, havingcommenced his proceedings, he finds that it is more convenient that they be transferredelsewhere.

LIMITATION PERIODS

The limitation period in Scotland is three years for most injuries, running from the dateof the accident.5 If the date of knowledge of injury or identity of the person responsibleis later, the limitation period will run from that point, or the date at which the courtdetermines it would have been reasonable for him to become aware of it.6 In fatal


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4 The Civil Jurisdiction Act 1982 indicates that domicile is the primary source of jurisdiction, but theplace in which the delict occurred is given as a special ground of jurisdiction.

5 Prescription and Limitation (Scotland) Act 1973, as amended by s 2 of the Prescription andLimitation (Scotland) Act 1984.

6 Section 17(1) and (2), as amended by s 27 of the Prescription and Limitation (Scotland) Act 1984.

Scotland

accident cases the relevant date is the date of death.7 In the case of disease it runs fromthe date of knowledge or occupation cause. Where, due to the expiry of the limitationperiod, an action is time barred, the court has the discretion to allow an action to bebrought if it seems equitable to do so.8 The limitation periods under the MerchantShipping 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 courtsalso have discretion to extend the limitation period where it appears equitable to allowan action to proceed.9

Where the pursuer is a minor, the limitation period will start either from when hereaches the age of 18 or dies, whichever is earlier. In respect of mental patients it startswhen mental incapacity ceases.

FUNDING

Legal aid

Legal aid cannot be obtained for an action outside the jurisdiction. A foreigner who isnot resident in the jurisdiction cannot qualify for legal aid. Probable success of theaction and means of the applicant are the criteria used to determine eligibility for legalaid.

The Legal Aid Board will fund a cause of action to no overall limit. The claimantmay have to contribute to costs, depending on his means. Where the claimant issuccessful, the board has a right of redress for costs from the defender. Where thedefender has insufficient means to pay, costs will be reimbursed to the board from thedamages awarded to the pursuer.

Contingency fees

Lawyers operate on a contingency fee basis. No fee is payable where the action fails. Ifthe plaintiff wins, his lawyer will recover expenses on the party and party basis, andmay recover additional expenses (costs) if he has entered into a special-fee-chargingarrangement. Lawyers may also have a fixed level of charges calculated on an hourly orblock basis.

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7 Section 18.8 Section 19A, inserted by the s 23(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act

1980.9 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 thepart of the plaintiff, and the extent to which having regard to the delay, the evidence adduced orlikely to be adduced by the plaintiff for the defendant is or is likely to be less cogent than if the actionhad been brought in time. See Nelson-Jones, R and Burton, F, Personal Injury Limitation Law, 1994,pp 74–75, London: Butterworths.


Pursuers may be supported by legal expense insurance; however it is not as yet widelyused. 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 ordisease is caused by work, and also in road traffic cases.


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 thecriminal court does not prevent a subsequent civil claim being made. The criteria differfrom the assessment of a civil award in that they are tariff based.


When a person is injured, the police are not always called and will therefore notautomatically start to investigate or commence criminal proceedings. Proceedings areinstituted by the Procurator Fiscal. He is independent from the police and can receivereports from bodies such as the Health and Safety Executive or HM Customs andExcise. If he considers that a criminal offence has taken place he will instituteproceedings. In some cases the police will reconstruct an incident, particularly if it is aroad traffic accident.

Local or foreign criminal proceedings do not interrupt the limitation period of civilproceedings.

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. Theposition is less clear for other types of injury.

Release of evidence

For civil proceedings, police statements, reports and photographs may be obtained bythe pursuer’s solicitors, but not with experts’ reports unless such disclosure is deemed tobe in the public interest.

Experts’ reports will be made available by formal request for a fee.10 The evidence


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10 These are approximately £40 per statement.

Scotland

will be released after the conclusion of the criminal proceedings. It takes approximatelyone month for them to be released.


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 theHealth and Safety at Work Act 1974 cannot. Such evidence does not, of itself, establishliability but can be of persuasive significance. Some foreign convictions may also bepleaded.


If a defender is unable to pay, the State will pay compensation through the CriminalInjuries 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 tonominate the victim’s lawyer.


Scottish lawyers have the right to call themselves specialists in the field of personalinjury. There is an Association of Personal Injury Lawyers. They may advertise theirservices. Information about lawyers who specialise in personal injury may also beobtained from the Law Society of Scotland, the Citizens’ Advice Bureaux and variousconsumer organisations.

Lawyers do not have a right of audience in the courts of first instance all overScotland. Solicitors appear in the sheriff’s court where they have a right of audience asopposed 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 acourse of study and passed the appropriate examination. They are almost exclusivelybased in Edinburgh or Glasgow as the Court of Session is based in Edinburgh and doesnot go on circuit. Solicitors have recently been granted rights of audience in theSupreme Courts which were previously exercised only by advocates.

Where a person is legally aided, there is in theory, no restriction on choice oflawyer. 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 ofincome and probabilis causa, he may select a solicitor of his choice.

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INSURANCE


Insurance is compulsory for all public and employment activities and road trafficliability. Policies may limit the claim to an upper maximum for individual claims.


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 willnot recover from the defendant’s insurer. The Motor Insurers’ Bureau will adopt theclaim in such a case to provide the plaintiff with compensation on application by theplaintiff.


Proceedings cannot be brought directly against the defendant’s insurer unless there is aspecial 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 tosecure 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 lifeexpectancy.

• General damages. This includes the pain felt upon the actual nerves and brainwhich is not directly related to the accident or resulting from medical treatment.Suffering includes fright, fear of a future disability, humiliation, embarrassment andsickness. Loss of amenity includes injury to any senses, sexual dysfunction, loss ofenjoyment 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.


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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.

Scotland

• Psychiatric damage.

• Special damages. This includes past loss of earnings and fringe benefits and lostchances of promotion, loss of future earnings, loss of pension, handicap on thelabour market14 and claims for do-it-yourself loss.15

• Medical expenses privately incurred. This includes costs of medical care and thecost 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.


Damages are awarded by either a lump sum or periodic payments.


Where the claim will take some time to finalise, the courts will award interim paymentswhere the pursuer can show he is likely to succeed in his claim on the merits of thecase. 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 incondition 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 societyand 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.

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 expecteddamages are less than the costs of bringing proceedings, especially where both a foreignand local solicitor have been involved.


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.


State benefits received by the plaintiff are credited against the award of damages to thepursuer to prevent double compensation. Social services has a right of priority over thepursuer’s damages for its outlays.

Deductions of State benefits are made from the damages awarded for loss ofearnings.21 Public health care is also set off.22

In fatal accident cases, no account is taken of State and other payments todependants of the deceased.23

Employers do not have a statutory obligation to pay salary during incapacity.

PROCEDURE


Service

A claim is initiated by writing to the defender to obtain details of his insurers, and thenby writing to his insurers themselves. The action is initiated by writ served upon the


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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-contributoryinvalidity pension and severe disablement allowance for the five years beginning with the time whenthe 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.

Scotland

defender or his solicitors. Service is carried out either by the court or by the pursuer’ssolicitors. Where police proceedings are being contemplated or brought, it is notpossible to obtain copies of the police report until any such proceedings are concluded.

In principle, a foreign lawyer may obtain details from the authorities investigatingthe accident. For practical reasons, however, it is advisable to instruct a local lawyerfrom the outset.

Service must be effected upon the defendants by post or personally, unless thedefendant has no known address. Normally it is carried out by recorded delivery. Ifrecorded delivery service is unsuccessful, then personal service is instructed by using aSheriff Officer who is an independent official, but who is empowered to serve writs. Ifthe defender is based outside of Scotland, recorded delivery service will be attemptedfirst, and then a process server will be instructed should that be necessary. Cross-borderservice is governed by the Brussels Convention 1968 and the Hague Convention1965.24

The time limits to comply with include service within the three year period of thetriennium.

If more than one person is responsible for the damage to the plaintiff, they can allbe joined as defendants in the same action. A defender may bring in third party by thirdparty procedure and a formal notice of a document setting out the reasons forintroducing the third party to the proceedings. The pursuer can bring in a seconddefendant, especially in cases of vicarious liability in the employment setting. If one ofseveral defendants appeal, only his liability will be retried. Only matters which arespecific issues will be raised at appeal.

Level of court

Actions for any value of claim can be commenced in either the Sheriff Court or theCourt of Session. There is no upper or lower limit. If, however, an action for arelatively small amount of damages is raised in the Court of Session, or if the ultimateaward is relatively small, the Court of Session may well limit the expenses of thepursuer to the appropriate Sheriff Court scale.

Court management

The court will not give directions as to how to proceed with the case. The averagetime from the commencement of proceedings to the court hearing is nine to 18months.

Evidence

The Scottish legal system is adversarial in nature with each party instructing his own

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experts. Evidence is given mainly orally.

Patients have a statutory right to see medical records and details of treatmentgiven.25 Records may also be released to someone authorised by the patient to receivethem. Courts may also authorise the release of a patient’s medical records if good causecan be shown.

Witnesses

Witnesses can be compelled to attend court to give evidence by citation and, ifnecessary, letters of second diligence or warrant of arrest. A party can be compelled todisclose evidence under the optional procedure for documentary evidence. For witnessstatements, the parties cannot be compelled at all. It is possible to submit sworndepositions from witnesses to reside outside the jurisdiction.


Defenders do not make payments into court in Scotland. Sometimes, the defender willprepare a formal written tender of a particular sum which must include expenses to thatdate. The tender is intimated to the pursuer and lodged with the court, although thejudge 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 thecourt subsequently awarding the tendered amount or less to the pursuer. The pursuerwill then be responsible for the costs of both parties from the date at which the tenderwas made.


Once the court has issued a judgment it does so in the form of a decree. The decree isthen extracted from the court once the time for lodging appeal has passed. If thedefender has not paid in accordance with the decree, then the Sheriff Officers areinstructed to serve a charge of payment on the defender, which is a formal demand forpayment of the principal sum, interest and costs. The charge of payment calls upon thedefender to make payment within 14 days and, on the expiry of that period, thepursuer can instruct the Sheriff Officers to proceed with a poinding (attachment) of thedefender’s goods, and proceed with a sale by warrant of the court of those goods. It isalso possible, on the expiry of the 14 day period, to arrest in the hands of a third partyany sums due to the defender. Arrestments can be in the hands of an employer or abanker or a person with whom the defender traded and who might, therefore, be


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25 Access to Health Records Act 1991 applies for records compiled after 1991. Computerised recordsprior to this date are made available to patients under the Data Protection Act 1987. For furtherdetails, see Brazier, M, Medicine, Patients and the Law, 1992, pp 63–64, London: Penguin Books.

Scotland

arresting owing to the defender at the time of the arrestment. Finally, if the decree wasagainst an individual, the expiry of the 14 day period after the charge of payment couldpermit 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 isup to the parties to seek enforcement. Enforcement is likely to be a problem where thedefendant cannot be found, has no assets or is uninsured.

Interim orders may also be enforced. Cross-border enforcement is governed byreciprocal enforcement orders operating between jurisdictions.

COSTS

If the court awards the tendered amount or less to the pursuer, the pursuer will then beresponsible 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 costsdeemed necessary for the proper conduct of the case will be recovered form the losingparty. Where both a foreign and local lawyer have been involved, it is likely that thecosts of both will be recovered.

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CHAPTER FIFTEEN

LIABILITY

Personal injury law in Spain has been subject to a great many changes in the past fiveyears, particularly in the area of road traffic accidents. The modifications relating toroad traffic accidents were only one of a series of measures implementing EUDirectives relating to general insurance law in Spain.1 It is only now that the first effectsof these changes are being felt, and it will take some time before a full assessment ofthese changes can be made.

The standard of care owed is generally that of pater bonus familias.2 Particular typesof harm include the following basic characteristics:

• Since 9 November 1995, road traffic accidents have been subject to a compulsorytariff scheme3 which imposes a cap on the damages recoverable.4 Judges cannotaward a sum of damages above that set amount. Damages will also be awardedunder the ‘no-fault’ scheme up to the limits of compulsory insurance, but then maybe reduced for contributory negligence.

• In cases of employer’s liability, medical negligence and occupier’s liability,5 bothfault and causation must be proved.

• The legislative response to the cooking oil disaster in 19806 was a statute enacted in1985 which was confusing and conflicted with the EC Directive on ProductLiability. This was modified by a new Act in 1994.7

• Environmental accidents8 and train accidents9 are governed by a regime of strictliability. Aircraft passengers are also covered by compulsory insurance under a strictliability regime.10 In general, fare-paying passengers injured in public fare-paying

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1 De Ordenacion Y Supervision De Los Seguros Privados, Ley 30/1995, de 8 Noviembria.2 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 20/1986regarding 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.

transportation accidents are covered by compulsory insurance which compensateson a no-fault basis, regardless of liability.11

• Accidents caused by animals are subject to rules of strict liability which cease ‘onlywhere the damage is caused by force majeure or the fault of the person that sustainedit’.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 amountof compensation is reduced, but occasionally the claim may be ousted completely.There have been cases in which claimants have been held to be 100% contributorilynegligent.

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 beheld vicariously liable for their acts and omissions.13 In cases relating to infants courtapproval is necessary, but in certain cases the public prosecutor will be asked torepresent the interests of a minor or incapacitated person.

JURISDICTION

If the accident occurred in Spain and the defendant is domiciled elsewhere, proceedingsmust be commenced in either the place of the accident or the domicile of thedefendant.14

Being a signatory to the Brussels Convention,15 place of domicile is considered tobe where a person is registered for the census.


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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 oromissions, but also for those of persons for whom others must respond. Parents are responsible forthe damage caused by their children who are under their guard. Tutors are liable for the damagecaused by minors or incapacitated persons under their authority who live with them. ... The liabilityreferred to in this article shall cease when the persons mentioned in it prove that they employed allthe 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 alsoa signatory to the convention.

15 European Community Convention on Jurisdiction and the Enforcement of Judgments in Civil andCommercial Matters (the Brussels Convention) 1968.

Spain

If proceedings are brought at the place of domicile of the defendant which isdifferent to the place of the accident, the court will choose which law to apply inaccordance with the law of the forum and the rules of private international law. Inmost 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 relevanttime limit.16 The limitation period for civil proceedings is one year in tort, runningfrom either the date of the accident, the termination of criminal proceedings or fromthe date of consolidation of the claimant’s injuries, whichever is the latest.17

The limitation period for aeroplane accidents is two years under the WarsawConvention, but the domestic statute of limitation on payment of indemnitiesregarding 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 forcriminal prosecutions.

In cases of product liability the time limit is three years from the time of thedamage sustained, providing the claimant knows who is responsible for causing thedamage.

The plaintiff can extend the limitation period by one year by submitting a claim tothe defendant. The plaintiff must be able to prove receipt of the claim by thedefendant, and since some important information must be included in the claim it isadvisable to consult a Spanish lawyer.

FUNDING

Legal aid

Spain has a legal aid system. A claimant must prove he has insufficient revenue to findthe case and has no choice of lawyer. Legal aid cannot be obtained for an action outsidethe country of Spain. It is available for use in another region of Spain, however, whichmay be a different legal jurisdiction. Foreigners who are not resident in Spain canqualify for legal aid. The upper limit to which the legal aid board will fund is flexible inmost circumstances, so that legal representation will continue until the conclusion ofthe 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.

Contingency fees

Lawyers’ charges vary according to the scales of charges issued by each regional Barassociation.


Legal expenses insurance is popular; some home contents insurance policies offerassistance.

Trade unions

Trade unions will usually assist a member in bringing or defending an action.



Civil proceedings cannot begin until the conclusion of any criminal proceedings. Civilliability is automatically taken into consideration by the criminal court. The claimanthas the alternative of opting out of the criminal proceedings to have his claim for civildamages evaluated by the civil court. As the damages awarded will be the same, onetype of proceedings is not preferable over the other. In order to participate in thecriminal proceedings, the claimant is generally invited formally by the judge.18

Although a formal claim should be submitted by the claimant, Article 112 of theLaw of Criminal Procedure allows the prosecution to take place by default. By notparticipating in the criminal proceedings, the claimant risks receiving a sum ofcompensation lower than the true value of his case by depriving the judge of theopportunity to make accurate compensation, and the matter would be considered resjudicata. This only occurs where the prosecutor considers the case a crime as opposed toa misdemeanour. It is, therefore, very important for a claimant to participate in thecriminal proceedings. If the prosecution is unsuccessful and civil damages areconsequently not awarded, the claimant can still take up the civil option.19

Where the criminal court is considering both civil and criminal liability, theprosecutor 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.’ Article19 of the Spanish Penal Code also stipulates that ‘any person who is found criminally responsible fora crime or a misdemeanour is also civilly responsible’.

Spain


Criminal proceedings are instigated by the police, who usually start investigating anaccident automatically where a person has been injured. If the claimant is in thehospital, the hospital will send a medical report to the court. These two reports are anessential part of the inquisitorial system, and put the wheels of criminal proceedings inmotion automatically. The court is obliged to open a file of enquiry and will invite theparties to join in the criminal proceedings with their civil claim. A prejudiced party hassix months from the date of the accident within which to make his interest known tothe court. By doing this he triggers the criminal action. If he fails to do so theprosecution 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 thevictim to decide whether there should be a prosecution.

Sometimes, other entities must also be informed of an accident in which there havebeen personal injuries. For example, the police must be informed in cases ofenvironmental accidents. If someone is injured at work, the employer will notify themutual insurer to which the employer belongs.

The police will sometimes reconstruct an accident, especially a road traffic accidentor other cases of a criminal nature.

Release of evidence

The police send their report to the local court of enquiry.


If the prosecution is successful, the facts cannot be changed in any subsequent civilproceedings. Criminal proceedings could be nullified where the claimant was not giventhe opportunity to participate in the them.


There is no criminal injuries compensation board which will pay compensation to theclaimant where the defendant is insolvent.


In Spain, lawyers do not generally refer to themselves as specialists in the field ofpersonal injury. There is no association specifically of personal injury lawyers.

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They are not allowed to advertise their services and the regional Bar associationshave no official lists of personal injury practitioners. The police and other lawyers areusually the best sources of referral.

Spain has a fused system of legal practitioners, so there is no distinction betweenbarristers and solicitors. A Spanish lawyer has rights of audience in the territory coveredby his regional Bar association, although this is changing so that agreements betweenthe different bars allow lawyers to practice in more than one jurisdiction.

Each party pays his own costs, with certain exceptions such as in criminalproceedings in which the action is taken automatically and where it involves a seriouscrime. In criminal proceedings (falta) for misdemeanours, there is no rule concerningmandatory representation by a lawyer, so the claimant has the option of conducting theclaim himself. This is inadvisable and rarely done. Other costs such as translation andnotarisation are also borne by the parties.

Where a person is legally aided there is no choice of lawyer. The court willgenerally provide a solicitor.

INSURANCE


Insurance is compulsory in Spain only for motor vehicles, hunting and accidents atwork. It is also compulsory in the area of nuclear energy.20

The minimum level of compulsory motor vehicle insurance in Spain is set at56,000,000 pesetas.21 Any amount of coverage above this is voluntary. The maximumamount of obligatory coverage for damage and loss of belongings is 16,000,000 pesetasper accident.


If the defendant is uninsured or the defendant becomes insolvent, compensation will bepaid by the Consorcio de Compensacion de Seguros, which is State insurance foruninsured drivers. This body has redress against the defendant. This guarantee fund willcompensate the plaintiff up to the limit of the compulsory insurance.

If the defendant is insured but in breach of certain exclusions in his insurancepolicy, the insurer will normally be asked to pay compensation to the plaintiff. Theinsurer 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.

Spain


Proceeding can be brought directly against the insurance company rather than thetortfeasor.22

DAMAGES

Heads of damage

There are two heads of damages for personal injury.23 The first, dias de baja, is for thetemporary incapacity suffered by a plaintiff after an accident. This includes pain andsuffering, convenience, expenses and lost earnings. The second head of damages coverspermanent incapacity.

Moral damages, which compensate for the pain, suffering and inconvenience, areawarded to the victim and are also available to close relatives of a severely injuredvictim.24

Interest

Interest is set by the courts. Generally, the applicable interest rate is the legal interestrate which is set by the Bank of Spain. The only exception to this will be on theagreement of the parties.


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 pointin the future and require a further payment of damages, are not used in Spain, but it ispossible to re-open a case in certain circumstances, however, to similar effect. Anydeterioration of the plaintiff’s condition may be compensated if it was unforeseen at thetime of the first award and direct causation is proved. Where the possibility ofdeterioration was foreseen medically at the time of the original proceedings, the firstaward 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.

Interim damages are not often awarded but periodic payments are used in somecases. Under such an arrangement a pension is paid based on a discounted daily rate ofdias de baja. In order to qualify for an interim payment, the plaintiff would have to bedeclared medically unfit and prove that he is unable to obtain an income from anyother source. Insurers are unlikely to volunteer an interim payment, but are morerecently 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 onawards of damages. The interest payable will be increased by 50% if payment into courtis not made within three months of the accident.

Bereavement damages

Claimants for bereavement damages need not be heirs of the deceased. For all areas ofnegligence except road traffic accidents, claimants need only prove they are prejudicedas a result of the death.

Under the new law for road traffic accidents, claimants of bereavement damagesmust fit into the new tariff scheme. Damages will be modified by factors such as thedependant’s own earnings.

Level of damages

In 1991 the Ministry of Finance published a table to assist judges with the calculation ofdamages 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 onecontained in law 30/95 is now compulsory for awards in all claims arising from roadtraffic accidents.


The general principle of compensation has been, until recently, full compensation forunlimited losses sustained. However, the new law concerning road traffic accidentsseems to have overridden that.

If a loss is incurred in a foreign currency, the courts can, in effect, award damagesin that foreign currency by awarding payment in Spanish currency that equals thestipulated foreign currency value, according to the rate of exchange on the date ofenforcement.


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25 Baremo Orientativo.

Spain


Where plaintiffs who have an actionable claim receive State benefits, the dias de baja isreduced accordingly. The social services has a right of reimbursement for all benefitsreceived by the claimant, except medical care. It can be exercised by a direct action buthas no right of priority over the plaintiff’s damages.

A plaintiff’s employers have a statutory obligation to make some salary paymentsduring an employee’s incapacity. There are two kinds of sick pay made to theemployee for accidents, depending on whether he suffers temporary or permanentincapacity. In cases of temporary incapacity, the company itself continues to pay theemployee, although the company may subsequently deduct 75% of this salary paymentfrom its payments to Social Security. In cases of permanent incapacity, the socialsecurity system pays an employee by means of private insurance.

PROCEDURE


Service

To initiate a civil claim, the plaintiff presents a formal written claim to the civil court. Itis common, however, for the claimant to obtain compensation from the criminalcourts. It is advisable to instruct either a local lawyer or a specialist in Spanish personalinjury 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, hemust abstain from initiating or participating in a criminal enquiry, which mustotherwise be done within two months of the accident. His other option is to reservethe civil action if the criminal case is going ahead without the plaintiff having instigatedit.

It is up to the defendant to notify his insurers that he is being sued, but the plaintiffhas the option of suing the insurance company directly.26

Service of proceedings on the defendant must be effected through the court. Thetime limits for service vary according to the type of proceedings, and are normally setby 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 formalrequest in a counter claim or including him in the initial action. The plaintiff can bring

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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 orenterprise are liable for the damage caused by their employees in the service of the branches in whichthey are employed or on account of their duties’.

in a second defendant, including parents or employers, who might be vicariouslyliable.28 If more than one person is responsible for the plaintiff’s damage, they can all bejoined as defendants in the same action.

Level of court

The level of court in which criminal proceedings will begin is determined by whetherthe crime is classified as a crime or misdemeanour. Serious crimes will be handled by ahigher court. For civil cases concerning road traffic accidents, there is only one court inwhich the case can be initiated.

Court management

The average time from the commencement of proceedings to the court hearing isdifficult to determine, as it will depend on not only whether it falls within the criminalor 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 lessand less so, however, and most cases, unless triggered unilaterally by the victim in thecase, become adversarial.

In both criminal and civil proceedings, the parties are responsible for obtainingtheir 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 finalreports. Parties are obliged to disclose their evidence at the start of the action in a civilcase.

Patients have a statutory right to provide the court with their own medical recordsand the details of treatment given. However, in cases of medical negligence, defendantsare sometimes reluctant to release them, and so the courts will often have to requesttheir release.

The court will instruct its own experts to examine the evidence in criminalproceedings. Foreign experts are not brought in. The normal course of events wouldbe for the court-appointed doctor to examine the victim in the same locality of thecourt. If the plaintiff is unable to travel, the court-appointed expert will usually base hisreport on the evidence of the plaintiff’s own experts.

Witnesses

Evidence is generally presented in written form to the court, although witnesses can becompelled 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 giveevidence. They can provide sworn depositions.


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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.


Final judgments are directly enforceable by use of ‘enforcement papers’, which are sentto 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 civilprocedure enforcement is left to the winning party. It is not particularly costly to seekenforcement. Enforcement is usually only a problem where the defendant is insolventor impossible to find.

International execution of judgments is regulated by the Brussels Convention forcountries of the European Union, the Lugano Convention for countries of theEuropean Free Trade Association (EFTA) and by various bilateral agreements withother countries. Cross-border enforcement involving countries other than these isregulated by domestic Spanish procedural law.29

COSTS

Usually, parties pay their own lawyers and costs, but in civil law, recently, there havebeen some exceptions in the more serious cases, in which the losing party will pay thecosts of the other side.

A legally-aided party will only have to contribute towards the cost of his action if itis successful. In the event that the legally-aided plaintiff wins the claim, and costs areawarded against an insolvent defendant, the legal aid board is entitled to recoup itsexpenses from the damages awarded to the plaintiff.

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29 Article 954 of the Spanish Civil Code.

CHAPTER SIXTEEN

LIABILITY

The general rules on civil liability are set out in Articles 41–61 of the Swiss Code ofObligations. The standard of care for personal injuries is based on fault andreasonableness.1 However, some areas of negligence are governed by regimes of strictliability. 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 rebuttedby a defendant who can prove he took all precautions appropriate under thecircumstances.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 trafficaccidents 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 ofland 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 precautionswere taken.5

• With environmental accidents the person who caused the damage is generally liablefor the cost of removing the pollution.

• Train accidents are governed by a regime of no-fault liability. The Swiss State isliable 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 Article 16 of the Swiss Civil Code.2 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, TheNetherlands: Kluwer.

3 Article 55, I of the Swiss Code of Obligations provides: ‘The principal shall be liable for damagescaused by his employees or other auxiliary persons during the performance of their work, unless heproves that he has taken all precautions appropriate under the circumstances in order to preventdamages of the kind, or that the damage would have occurred in spite of the application of suchprecautions.’

4 Articles 58, I of the Swiss Code of Obligations and 679 of the Swiss Civil Code.5 Article 56, I of the Swiss Code of Obligations.

DEFENCES

Defences include contributory negligence,6 an intervening act of a third party, necessityand self-preservation. Whether these act as complete or partial defences will depend onthe case at hand. A plaintiff can be held 100% contributorily negligent.


If the defendant is a minor he can be held liable at age 18, but depending on theparticular minor’s own maturity he can be liable for damages caused by wrongful acts ata younger age. The head of the family can be liable for damage caused by minors forwhom he is responsible.7 Where the minor or a mentally incapacitated party is insuredor has sufficient financial means, the judge may impose liability on him if it is equitableto do so.

If the plaintiff is a minor he must be represented by parents in the proceedings. Ifparents are unable or unwilling to represent the minor the court will appoint somebodyto act on the minor’s behalf. In other cases in which a plaintiff or defendant is notmentally capable of conducting his own affairs, the court will ask him to appoint arepresentative 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 theplace in which a person’s life is centred, considering where his family lives, where heworks and where he has his friends. If the accident is brought in one court, neitherparty 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 ofthe defendant and it is different to the place of the accident, the court will apply thelaw of the country in which the accident occurred. Generally, if both parties havehabitual residence in the same country, the law of the country in which the accidentoccurred or its effects were felt will be applied.9


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6 Article 44, I of the Swiss Code of Obligations provides that ‘the judge may reduce or completelydeny any liability for damages if the injured party consented to the act causing the damage, or ifcircumstances for which he is responsible have caused or aggravated the damage, or have otherwiseadversely affected the position of the person liable’.

7 Article 333, I of the Swiss Civil Code.8 Switzerland has ratified the Lugano Convention 1988.9 If it is a road traffic accident, the Hague Convention on the Law Applicable to Traffic Accidents

Switzerland

LIMITATION PERIODS

In Switzerland, service is made by the court and not by the parties. There is noprocedural time limit concerning commencement of proceedings, but a claim can betime 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 plaintiffreceived knowledge of the damage and of the identity of the person liable for it, and, inany 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 oflimitation by statute, then the longer limitation period applies to the civil claim.

The limitation period can be interrupted by acknowledgement of the claim by thedefendant, such as making interest and instalment payments of a pledge of payment, orby bankruptcy.10 Once the running of the statute of limitations has been interrupted bybringing suit or raising a defence during the course of the litigation, the time periodstarts afresh with any judicial act of the parties.11 The limitation period can be extendedby the parties by consent with no overall maximum. The courts have no discretion toextend the limitation period. Where the plaintiff is a minor or a mental patient, therules are the same.

FUNDING

Legal aid

Legal aid is actually granted by the court rather than a special legal aid board. Aforeigner who is not resident in Switzerland can qualify for legal aid if the countryinvolved has signed the appropriate treaty on this matter.

The main qualification criteria for legal aid concern the financial circumstances ofthe plaintiff, how much help the plaintiff will need from a lawyer, and whether the caseis complicated or straightforward. There is no maximum limit to which legal aid willfund. If a person qualifies for legal aid, there is no contribution payable by him towardsthe costs of the litigation.

The court granting the legal aid has no right to recoup its expenses from thedamages awarded to the plaintiff where the defendant has insufficient means to pay theclaim and costs awarded against him.

Contingency fees

Contingency fees are not allowed under Swiss law.

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10 Articles 135 and 136.11 Article 138.


Parties are allowed to be supported by legal expenses insurance. Some home contentsinsurance policies will also assist parties. If the family home insurance does not coverlegal expenses, there are special legal insurance policies which can be taken out. Theseare becoming increasingly popular.

Trade unions

Some unions will assist a member in either bringing or defending an action. TheWorkers Unions, for example, will help members with labour law proceedings.



In most cantons, a criminal court has the power to award compensation to the plaintiffif the defendant is prosecuted through the criminal courts. The plaintiff must submit aformal claim, however, as this does not happen automatically. The awarding ofdamages in the criminal court generally prevents a civil claim being made. Damages areawarded on the basis of the injury and are assessed in the same manner as in civilproceedings.


When a person is injured the police are always called. They only start to investigateautomatically if there are serious injuries. Similarly, criminal proceedings will onlycommence if the injuries are serious, otherwise it is left to the injured party to initiateproceedings by submitting a claim to the police or the district attorney. Police willreconstruct an incident where necessary to understand what has happened.

Certain other bodies should be informed of an incident in which a person isinjured 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 issubmitted to the criminal or civil authorities. Prosecution in a foreign jurisdictioninterrupts the limitation period only if the claim for damage is submitted to thecriminal or civil authorities.

Release of evidence

The prosecution or police usually make their evidence readily available to a prospectiveplaintiff’s solicitor. Such evidence is obtained by formal request. There is generally nofee for this. The prosecution or the police will release the evidence by the indictment


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of the defendant, but generally earlier. Police reports are usually released immediately.


If the defendant is unable to pay, the State will pay compensation to the victims ofpersonal injuries including rape. The criminal injuries compensation board is financedby the State and has redress against the defendant.12 The board will pay the costs of aperson’s choice of lawyer, as it is felt that clients should have the right to choose theirlawyers themselves. If criminal proceedings are brought and result in a conviction, evenin a foreign jurisdiction, that conviction can be pleaded in the civil court. A criminalconviction is of persuasive influence only. The judge in a civil court is not bound by acriminal acquittal or conviction.


There is no distinction between solicitors and barristers under Swiss law, but onlylawyers 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 thecourts 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 overSwitzerland. Where a person is legally aided, the only restriction on choice of lawyer isthat it must be one who practices in the canton in which the proceedings take place. Ifa person cannot find a lawyer willing to act under the legal aid scheme, the court canappoint 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 beobtained at the local lawyers’ association.13 There is no association of personal injurylawyers.

INSURANCE


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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.

Insurance is compulsory against road traffic accidents and aeroplane crashes.14


Generally speaking, every driver is insured. Without insurance a driver is unable to geta license plate. If a person is injured by a the driver of a stolen vehicle, he will getcompensation from the insured owner of the car or the driver himself. If the owner ofthe car or the driver is unknown, the insurance company’s own fund will pay thecompensation.

If the defendant is in breach of any terms of the insurance agreement, or if theinsured lends the car to a third party, the plaintiff will still be paid by the defendant’sinsurance policy. No other body will adopt the claim.


It is generally the owner of the car and not the driver of the car who is responsible withrespect to the victim. In road traffic accident cases, the proceeding can be broughtdirectly against the insurance company rather than the tortfeasor. No formal notice hasto be given to the insurers before or upon issuing proceedings to secure the insurancecover.

DAMAGES

Heads of damage

An injured person can recover damages under the heads of pain and suffering, generaldamages and special damages.

Interest

Interest accrues on damages starting from the date of the accident. There is no fixedrate of interest.


Swiss courts use both lump sum awards of damages and periodic payments.


Provisional damages are available where the claim is settled but there is a real risk of theinjured person developing a side effect at some time in the future.


162

Switzerland

Swiss courts rarely award interim payments, although some insurers will make aninterim payment on a voluntary basis where they are clearly liable and will ultimatelybe 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 asthe 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 sufferedpsychological damage due to the accident.

Level of damages

Respondents were of the opinion that, in some cases, expected damages are too smallin relation to the cost of proceedings to make a claim worthwhile.

There are some publications in Switzerland which regularly detail and update levelsof damages.16


Damages can be awarded in a foreign currency if the plaintiff requests it.


Any State benefits received by the plaintiff will be set off against the amount payable bythe defendant in damages. The plaintiff may not claim both State benefits and fullcompensation from the defendant. If, for example, the plaintiff receives an invaliditypension from the State which amounts to 80% of his former salary, he can only claimthe remaining 20% from the defendant.

Social services can claim reimbursement for its payments to the plaintiff through adirect right of action against the defendant.

The employers of the plaintiff have a statutory obligation to pay salary duringincapacity for stipulated amounts of time, depending on the length of time an

163

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15 Article 45 of the Swiss Code of Obligations.16 See Stauffer, Schatzle, Barwerttafeln, last edn, Zurich 1989.

employee has been in that particular employment. The employer has no final right ofaction, but may have a right to be reimbursed by the public social insurance system orby private insurance.

PROCEDURE


Service

There is no general Swiss Law concerning civil procedure, and each canton has its owncivil procedure. A claim is initiated in Switzerland by the plaintiff filing a claim to thecourt, or, in certain cantons, to the justice of the peace. Lawyers seeking informationfrom criminal investigators or the criminal and civil courts generally must be admittedto the Bar of the respective canton. Foreign lawyers will therefore need to instruct alawyer in that canton from the outset.

Service of proceedings is carried out by the court. Cross-border service is done byway of legal help from the foreign State.

If more than one person is responsible for the damage, they can all be joined asdefendants in the same action. A defendant can bring in a third party by giving thirdparty notice. The plaintiff can bring in a second defendant but must do so at thecommencement of proceedings. If one of more defendants appeals, that defendant’sliability 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 beforea justice of the peace in some cantons. Parties may, however, agree in writing to startproceedings in the higher Cantonal Supreme Court. It is sometimes felt that the benefitof 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 areonly called if the amount in dispute is small, if witnesses are heard or if the court wantsto suggest a settlement to the parties.

Evidence

Swiss civil court procedure is adversarial in nature. The court is primarily responsible


164

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17 For example, the place of the accident.

Switzerland

for obtaining the evidence on request of the parties. Patients have a statutory right tosee medical records and details of treatment given. Evidence obtained by the partiesmust be admitted by the court. Generally, the court will not give any directions as tohow 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 ownindependent experts. They will be appointed in Switzerland, regardless of the plaintiff’sdomicile. The plaintiff may introduce his own expert evidence in addition.

Witnesses can be forced to give evidence, but a party cannot be forced to disclosedocumentary evidence. Sworn depositions can be submitted to the court but do notcarry 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 10days imprisonment.


There are no provisions for a defendant to make a payment into court before the case isheard.


It is up to the parties to seek enforcement rather than the court. Enforcementprocedures include debt collection proceedings and summary court proceedings wherethe defendant opposes enforcement. Enforcement is usually not expensive, and is only aproblem where the defendant has disappeared or is insolvent. Interim orders areenforceable. Cross-border enforcement is governed by the Lugano Convention, theNew 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 theamount in dispute or an ordinance by the court. The kind of ordinance will dependagain on the canton.18

The losing party to a claim must pay his lawyer’s fees, the court costs and the feesof the other party’s lawyer. The court will order the loser to pay the winner’s costs, but

165

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18 In Zurich, for example, it is a tariff enforced by the Cantonal Supreme Court.

INDEX

167

Acts of GodGreece, 69, 70Italy, 82Netherlands, The, 103Russia, 126

Aeroplane accidentsCyprus, 3Denmark, 13, 17England and Wales, 23, 28Finland, 35France, 45Germany, 56, 61Greece, 69Italy, 82Northern Ireland, 115Russia, 125Scotland, 133Spain, 145Switzerland, 161Warsaw Convention, 3, 45

AnimalsCyprus, 3Denmark, 13England and Wales, 23Finland, 35France, 45, 49Germany, 56Italy, 81Netherlands, The, 103Northern Ireland, 115Russia, 125Scotland, 133Switzerland, 157

Case managementCyprus, 10Denmark, 21England and Wales, 32Finland, 42France, 53Germany, 66Greece, 77Italy, 91Malta, 101Netherlands, The, 113Northern Ireland, 122Russia, 131

Scotland, 141Spain, 154Switzerland, 164

ChildrenCyprus, 4Denmark, 14, 15, 19England and Wales, 24, 31Finland, 35, 36France, 46Germany, 56, 58Greece, 70Italy, 82, 83Malta, 94Netherlands, The, 104, 105Northern Ireland, 116Russia, 125, 126Scotland, 134, 135Spain, 146Switzerland, 158, 159

Commencement of proceedingsCyprus, 10–11Denmark, 20–21England and Wales, 31–32Finland, 41–42France, 52–53Germany, 65–66Greece, 76–77Italy, 89–90Malta, 100Northern Ireland, 122–23Russia, 130–31Scotland, 140–41Spain, 153–54

Comparative law, 1

CompromiseSee Settlement

Contingency feesCyprus, 6Denmark, 15England and Wales, 26Finland, 37Germany, 58Greece, 72Italy, 84Malta, 96Netherlands, The, 106Northern Ireland, 117

Russia, 126Scotland, 135Spain, 148Switzerland, 159

Contributory negligenceCyprus, 4Denmark, 14England and Wales, 24France, 47Germany, 56Greece, 69, 70Italy, 82Malta, 93Netherlands, The, 104Northern Ireland, 115Russia, 125Scotland, 134Spain, 145, 146Switzerland, 158

CostsCyprus, 6, 11Denmark, 15, 22England and Wales, 34Finland, 37, 43France, 53, 54Germany, 58, 67Italy, 84, 92Malta, 95, 102Netherlands, The, 106, 114Northern Ireland, 117, 124Russia, 132Scotland, 135, 143Spain, 150, 155Switzerland, 165

CourtsCyprus, 10Denmark, 21England and Wales, 32Finland, 42France, 53Germany, 66, 68Greece, 77, 79Italy, 90–91Malta, 101Netherlands, The, 112–13Northern Ireland, 122Russia, 131Scotland, 141


168

Spain, 154Switzerland, 164

Criminal injuries compensation schemeCyprus, 7Denmark, 17England and Wales, 26, 27Finland, 38, 42France, 49Germany, 60Greece, 73Italy, 86Malta, 97Netherlands, The, 108Northern Ireland, 119Russia, 128Scotland, 137Spain, 149Switzerland, 161

Criminal proceedingsCyprus, 6–7Denmark, 16–17England and Wales, 26–27Finland, 37France, 48–49Germany, 59–60Greece, 72–73Italy, 84–86Malta, 96–97Netherlands, The, 107–08Northern Ireland, 118–19Russia, 127Scotland, 136–37Spain, 148–49Switzerland, 160–61

Cyprus, 3–11airline accidents, 3animals, 3case management, 10children, 4commencement of

proceedings, 10–11contingency fees, 6contributory negligence, 4costs, 6, 11courts, 10criminal injuries compensation

scheme, 7

Index

169

DamagesSee also Criminal injuries compensationschemeCyprus, 6, 8–10Denmark, 16, 18–20England and Wales, 29–31Finland, 37, 39–41France, 47, 48, 50–52, 53Germany, 59, 62–65Greece, 72, 74–76Italy, 84–85, 87, 89Malta, 86, 99–100Netherlands, The, 107, 110–11Northern Ireland, 117, 118, 120Russia, 126, 127, 129–30Scotland, 136, 138–40Spain, 148, 151–53Switzerland, 158, 160, 162–63

DefencesCyprus, 4, 5Denmark, 14England and Wales, 24Finland, 35France, 46Germany, 66Greece, 70Italy, 82Malta, 93Netherlands, The, 104Northern Ireland, 115Russia, 125Scotland, 133Spain, 146Switzerland, 158

Denmark, 13–22aeroplane accidents, 13, 17animals, 13case management, 21children, 14, 15, 19commencement of

proceedings, 20–21consent, 14contingency fees, 15contributory negligence, 14costs, 15, 22courts, 21criminal injuries compensation

scheme, 17

criminal proceedings, 6–7damages, 6, 8–10

bereavement, 9heads, 8interest, 8interim payments, 9lump sums, 8periodic payments, 8provisional payments, 9punitive, 9quantum, 9social security, 10

defences, 4, 5directions, 10domicile, 4–5drugs, 3employers’ liability, 3, 10, 11enforcement, 11

cross-border, 11environmental accidents, 3evidence, 7, 10–11fatal accidents, 3foreign lawyers, 7insurance, 6, 8, 9jurisdiction, 4–5legal aid, 6legal expenses insurance, 6legal profession, 7liability, 3limitation periods, 5, 6lis alibi pendens, 5medical examinations, 11medical negligence, 3mental incapacity, 4negligence, 3Northern Cyprus, 5occupiers’ liability, 3procedure, 10–11reasonableness, 3road traffic accidents, 3, 5, 7, 8service of process, 5, 10

abroad, 10settlement, 11standard of care, 3trade union funding, 6witnesses, 11


bereavement, 19heads, 18interest, 18lump sum, 18periodic payments, 18–19provisional damages, 18–19punitive damages, 19quantum, 19–20social security, 20

defences, 14domicile, 14employment, 13, 18, 20, 21enforcement, 22

cross-border, 22evidence, 16–17, 21foreign lawyers, 21insurance, 13, 15, 17–18jurisdiction, 14legal aid, 15, 17, 22legal expenses insurance, 15legal profession, 17liability, 13limitation periods, 14–15, 17medical negligence, 13mental incapacity, 14, 15negligence, 13occupiers’ liability, 13procedure, 20–22product liability, 13road traffic accidents, 13, 17self-defence, 14service of process, 20–21

cross-border, 21settlement, 22standard of care, 13trade union funding, 16train accidents, 13witnesses, 22

DirectionsCyprus, 10England and Wales, 32France, 53Greece, 73Malta, 101Northern Ireland, 122


170

DomicileCyprus, 4–5Denmark, 14England and Wales, 24Finland, 36France, 46Germany, 57Greece, 70Italy, 83Malta, 94Netherlands, The, 104–05Northern Ireland, 116Russia, 125Scotland, 134Spain, 146–47Switzerland, 158

EmploymentSee also Trade union fundingCyprus, 3, 10, 11Denmark, 13, 18, 20, 21England and Wales, 23, 28, 31Finland, 35, 39, 41France, 45, 49, 72Germany, 55, 65Greece, 69, 76Italy, 81, 89Malta, 93Netherlands, The, 103, 111Northern Ireland, 115, 121Russia, 125, 130Scotland, 133, 140Spain, 145, 153, 155Switzerland, 157

Enforcementcross-border, 11, 22, 33,

43, 54, 92,114, 123, 143

Cyprus, 11Denmark, 22England and Wales, 33Finland, 43France, 54Germany, 68Greece, 78–79Italy, 91–92Malta, 102

Index

171

limitation periods, 24–25, 27medical negligence, 23mental incapacity, 24negligence, 23novus actus interveniens, 24occupiers’ liability, 23procedure, 31–33product liability, 23road traffic accidents, 23, 26, 28service of process, 31–32

cross-border, 31settlement, 31, 33standard of care, 23trade union funding, 26train accidents, 23volenti non fit injuria, 24witnesses, 33

Environment accidentsCyprus, 3England and Wales, 23Finland, 35Germany, 58, 61Greece, 69Italy, 82Netherlands, The, 104Northern Ireland, 115Russia, 125Scotland, 133Spain, 145Switzerland, 157

EvidenceSee also WitnessesCyprus, 7, 10–11Denmark, 16–17, 21England and Wales, 27, 32Finland, 38, 42France, 48, 53Germany, 60, 67Greece, 73, 77–78Italy, 85, 91Malta, 97, 101Netherlands, The, 108, 113Northern Ireland, 119, 123Russia, 127, 131Scotland, 136–37, 141Spain, 149, 154Switzerland, 160–61, 164–65

Netherlands, The, 114Northern Ireland, 123Russia, 132Scotland, 142–43Switzerland, 165

England and Wales, 23–34aeroplane accidents, 23, 28animals, 23case management, 32children, 24, 31commencement of

proceedings, 31–32contingency fees, 26contributory negligence, 24costs, 34courts, 32criminal injuries compensation

scheme, 26, 27criminal proceedings, 26–27damages, 29–31

aggravated, 30bereavement, 30employers’ liability, 31heads, 29interest, 29interim payments, 30lump sum, 29–30periodic payments, 29–30provisional payments, 30punitive, 30quantum, 30–31social security, 31

defences, 24directions, 32domicile, 24employment, 23, 28, 31enforcement, 33

cross-border, 33environment accidents, 23evidence, 27, 32fatal accidents, 23insurance, 26, 28–29jurisdiction, 24legal aid, 25–26, 27, 34legal expenses insurance, 26legal profession, 27liability, 23

Fatal accidentsCyprus, 3England and Wales, 23France, 45, 49Italy, 82Northern Ireland, 115Russia, 125Switzerland, 157

Finland, 35–43aeroplane accidents, 35animals, 35case management, 42children, 35, 36commencement of

proceedings, 41–42contingency fees, 37costs, 37, 43courts, 42criminal injuries compensation

scheme, 38, 42criminal proceedings, 37damages, 37, 39–41

bereavement, 41heads, 39–40interest, 40interim payments, 40lump sum, 40periodic payments, 40provisional payments, 40punitive, 41quantum, 41social security, 41

defences, 35domicile, 36employers’ liability, 35, 39, 41enforcement, 43

cross-border, 43environment accidents, 35evidence, 38, 42insurance, 37, 39intervening accidents, 35jurisdiction, 36legal aid, 36–37legal expenses insurance, 37legal profession, 38limitation periods, 36medical negligence, 35, 39mental incapacity, 35, 36


172

necessity, 35procedure, 41–42product liability, 35road traffic accidents, 35, 39, 42service of process, 41–42


Force majeureSee Acts of God

Foreign lawyersCyprus, 7Denmark, 21France, 52Germany, 65Greece, 79Malta, 100Netherlands, The, 108, 112Northern Ireland, 122Russia, 130Scotland, 141

France, 45–54aeroplane accidents, 45animals, 45, 49case management, 53children, 46commencement of

proceedings, 52–53contingency fees, 47contributory negligence, 45, 46costs, 53, 54courts, 53criminal injuries compensation

scheme, 49criminal proceedings, 48–49damages, 47, 48, 50–52, 53

bereavement, 51heads, 50–51interest, 51, 54interim payments, 51lump sum, 51periodic payments, 51provisional payments, 51punitive, 51quantum, 48, 52

Index

173

heads, 62–63interest, 63, 68interim payments, 63–64lump sum, 63periodic payments, 63provisional damages, 63–64punitive, 64quantum, 64social security, 65

defences, 56domicile, 57employers’ liability, 55, 65enforcement, 68environment accidents, 56, 61evidence, 60, 67foreign lawyers, 65insurance, 55, 58–59, 61–62intervening accidents, 56jurisdiction, 57legal aid, 58, 61, 68legal expenses insurance, 58–59legal profession, 60–61liability, 55–56limitation periods, 57–58, 60medical negligence, 55mental incapacity, 56, 58necessity, 56occupiers’ liability, 55procedure, 65–67product liability, 55, 61road traffic accidents, 55, 56,

58, 59, 61–62service of process, 65–66, 68

cross-border, 66settlement, 67standard of care, 55trade union funding, 59train accidents, 56volenti non fit injuria, 56witnesses, 67

Greece, 69–79acts of God, 69, 70aeroplane accidents, 69case management, 77children, 70commencement of

proceedings, 76–77contingency fees, 72

social security, 52defences, 46directions, 53domicile, 46employers’ liability, 45, 49, 52enforcement, 54

cross-border, 54environment accidents, 50evidence, 48, 53fatal accidents, 45, 49foreign lawyers, 52insurance, 47, 48, 50–51intervening acts, 46jurisdiction, 46legal aid, 47, 49legal expenses insurance, 47legal profession, 49liability, 45limitation periods, 47, 49, 52medical negligence, 45mental incapacity, 46, 49occupiers’ liability, 45, 49procedure, 52–53product liability, 45, 49road traffic accidents, 45, 49, 50service of process, 52–53, 54settlement, 53social security, 48trade union funding, 48train accidents, 45witnesses, 53

Germany, 55–68aeroplane accidents, 56, 61animals, 56case management, 66children, 56, 58commencement of

proceedings, 65–66contingency fees, 58contributory negligence, 56costs, 58, 67courts, 66, 68criminal injuries compensation

scheme, 60criminal proceedings, 59–60damages, 59, 62–65

bereavement, 64

contributory negligence, 69, 70courts, 77, 79criminal injuries compensation, 73criminal proceedings, 72–73damages, 72, 74–76

bereavement, 75–76heads, 74–75interim payments, 75lump sums, 75periodic payments, 75provisional payments, 75punitive, 75quantum, 76social security, 76

defences, 70directions, 77domicile, 70employers’ liability, 69, 76enforcement, 78–79environment accidents, 69evidence, 73, 77–78foreign lawyers, 79insurance, 71, 72, 74jurisdiction, 70–71legal aid, 71–72, 74legal expenses insurance, 72legal profession, 73–74liability, 69limitation periods, 71, 76mental incapacity, 70medical negligence, 73negligence, 69procedure, 76–78product liability, 69road traffic accidents, 69, 70, 74self-defence, 60service of process, 76–77

cross-border, 77settlement, 78standard of care, 69trade union funding, 72witnesses, 78

InsuranceSee also Legal expenses insuranceCyprus, 6, 8, 9Denmark, 13, 15, 17–18England and Wales, 26, 28–29


174

Finland, 35, 39France, 47, 48, 50–51Germany, 55, 58–59, 61–62Greece, 71, 72, 74Italy, 84, 86–87Malta, 98–99Netherlands, The, 107, 109Northern Ireland, 119–20Russia, 127, 128Scotland, 136, 138Spain, 145, 146,

148, 150–51, 153Switzerland, 160, 161–62

Italy, 81–92acts of God, 82aeroplane accidents, 82animals, 81case management, 91children, 82, 83commencement of

proceedings, 89–90contingency fees, 84contributory negligence, 82costs, 84, 92courts, 90–91criminal injuries compensation

scheme, 86criminal proceedings, 84–86damages, 84–85, 87–89

bereavement, 88heads, 87interest, 87, 91interim payments, 88lump sums, 88periodic payments, 88provisional payments, 88punitive, 88quantum, 85, 88–89social security, 89

defences, 82domicile, 83employers’ liability, 81, 89enforcement, 91–92

cross-border, 92environmental accidents, 82evidence, 85, 91fatal accidents, 82insurance, 84, 86–87

Index

175

Italy, 84Malta, 95, 98Netherlands, The, 105, 109, 119Russia, 126, 128Scotland, 135, 137Spain, 147, 150, 155Switzerland, 159

Legal expenses insuranceCyprus, 6Denmark, 15England and Wales, 26Finland, 37France, 49Greece, 72Italy, 84Malta, 96Netherlands, The, 106Northern Ireland, 118Russia, 127Scotland, 136Spain, 148Switzerland, 160

Legal professionSee also Foreign lawyersCyprus, 7Denmark, 17England and Wales, 27Finland, 38France, 49Germany, 60–61Greece, 73–74Italy, 86Malta, 97–99Netherlands, The, 108–09Northern Ireland, 119Russia, 128Scotland, 137Spain, 149–50Switzerland, 161

LiabilitySee also Employment, Occupiers’ liability, Product liabilityCyprus, 3Denmark, 13England and Wales, 23France, 45Germany, 55–56Greece, 69

jurisdiction, 83legal aid, 84, 86legal expenses insurance, 84legal profession, 86liability, 81–82limitation periods, 83, 89–90medical negligence, 81mental incapacity, 82, 83necessity, 82occupiers’ liability, 81procedure, 89–91product liability, 81road traffic accidents, 81, 86–87, 90self-defence, 82service of process, 89–90


JurisdictionCyprus, 4–5Denmark, 14England and Wales, 24Finland, 36France, 46Germany, 57Greece, 70–71Italy, 83Malta, 94Netherlands, The, 104–05Northern Ireland, 116Russia, 125Scotland, 134Spain, 146–47Switzerland, 158

Legal aidCyprus, 6Denmark, 15, 17, 20England and Wales, 25–26, 27, 34Finland, 36–37France, 47, 49Germany, 58, 61, 68Greece, 71–72, 74

Italy, 81–82Malta, 93Netherlands, The, 103–04Northern Ireland, 115Russia, 125Scotland, 133Spain, 145–46Switzerland, 157

Limitation periodsCyprus, 5, 6Denmark, 14–15, 17England and Wales, 24–25, 27France, 47, 49, 52Germany, 57–58, 60Greece, 71, 76Italy, 83, 89–90Malta, 84–95, 100Netherlands, The, 105, 112Northern Ireland, 116–17Russia, 126, 130Scotland, 134–35Spain, 147Switzerland, 159

Malta, 93–102case management, 101children, 94Comino, 94contingency fees, 86contributory negligence, 93costs, 95, 102courts, 101criminal injuries compensation

scheme, 97criminal proceedings, 96–97damages, 96, 99–100bereavement, 99employers’ liability, 100heads, 99interest, 99interim payments, 99lump sums, 99periodic payments, 99provisional payments, 99quantum, 100social security, 100defences, 93directions, 101


176

domicile, 94employers’ liability, 93, 100enforcement, 102

cross-border, 102evidence, 97, 101foreign lawyers, 100Gozo, 95insurance, 96, 98–99jurisdiction, 94legal aid, 95, 98, 102legal expenses insurance, 96legal profession, 97liability, 93limitation periods, 94–95, 100medical negligence, 93mental incapacity, 94negligence, 93procedure, 100–02road traffic accidents, 93, 98service of process, 100–01

cross-border, 100settlement, 102standard of care, 93trade union funding, 96witnesses, 101

Medical negligenceCyprus, 3Denmark, 13England and Wales, 23Finland, 35, 39France, 45Germany, 55Greece, 73Italy, 81Malta, 93Netherlands, The, 103Northern Ireland, 115Russia, 125Scotland, 133Spain, 145Switzerland, 157

Mental incapacityCyprus, 4Denmark, 14, 15England and Wales, 24Finland, 35, 36France, 46, 49Germany, 56, 58

Index

177

employers’ liability, 111heads, 110interest, 110, 114interim payments, 110lump sums, 110periodical payments, 110provisional payments, 110punitive, 110quantum, 111social security, 111

defences, 104domicile, 104–05employers’ liability, 103enforcement, 114

cross-border, 114environment accidents, 104evidence, 108, 113fatal accidents, 104foreign lawyers, 108, 112insurance, 106, 107, 109–10intervening acts, 104jurisdiction, 104–05legal aid, 105–06, 109legal expenses insurance, 106legal profession, 108–09liability, 103–04limitation periods, 105, 112medical negligence, 103mental incapacity, 105necessity, 104occupiers’ liability, 103procedure, 112–13product liability, 102road traffic accidents, 103, 107, 109self-defence, 104service of process, 112settlement, 113standard of care, 103trade unions, 106witnesses, 113

Northern Ireland, 115–24aeroplane accidents, 115animals, 115case management, 122children, 116–17commencement of

proceedings, 122–23contingency fees, 117

Greece, 70Italy, 82, 83Malta, 94Netherlands, The, 105Northern Ireland, 116, 117Russia, 125, 126Scotland, 134, 135Spain, 146Switzerland, 158, 159

MinorsSee Children

Motor vehiclesSee Road traffic accidents

NecessityFinland, 35Germany, 56Italy, 82Netherlands, The, 104Switzerland, 158

NegligenceSee also Contributory negligence, Medical negligenceCyprus, 3Denmark, 13England and Wales, 23Greece, 69Malta, 93Russia, 125Scotland, 133Switzerland, 157

Netherlands, The, 103–14acts of God, 103animals, 103case management, 113children, 104, 105commencement of

proceedings, 112contingency fees, 106contributory negligence, 104costs, 106, 114courts, 112–13criminal injuries compensation

board, 108criminal proceedings, 107–08damages, 107, 110–11

bereavement, 111

contributory negligence, 115costs, 117, 124courts, 122criminal injuries compensation

scheme, 119criminal proceedings, 118–19damages, 117, 118, 120–21

bereavement, 121employers’ payments, 121heads, 120interest, 121interim payments, 121lump sums, 121periodic payments, 121provisional payments, 121quantum, 118, 121social security, 121

defences, 115directions, 122domicile, 116employers’ liability, 115enforcement, 123

cross-border, 123environment accidents, 115evidence, 119, 123fatal accidents, 115foreign lawyers, 122, 124insurance, 118, 119–20jurisdiction, 116legal aid, 117, 119legal expenses insurance, 118legal profession, 119liability, 115limitation periods, 116–17medical negligence, 115mental incapacity, 116–17novus actus interveniens, 115occupiers’ liability, 115procedure, 122–23product liability, 115road traffic accidents, 115, 118, 119–20standard of care, 115service of process, 122settlement, 123trade union funding, 118train accidents, 115volenti non fit injuria, 115witnesses, 123


178

Novus actus interveniensEngland and Wales, 24Finland, 35France, 46Germany, 56Netherlands, The, 104Northern Ireland, 115Scotland, 133Switzerland, 158

Occupiers’ liabilityCyprus, 3Denmark, 13England and Wales, 23France, 45, 49Germany, 55Italy, 81Netherlands, The, 103Northern Ireland, 115Russia, 125Scotland, 133Spain, 145Switzerland, 157

ProcedureSee also Enforcement, Service of processCyprus, 10–11Denmark, 20–22England and Wales, 31–33Finland, 41–42France, 52–53Germany, 65–67Greece, 76–78Italy, 89–91Malta, 100–01Netherlands, The, 112–13Northern Ireland, 122–23Russia, 130–31Scotland, 140–42Spain, 153–54Switzerland, 164–65

Product liabilityDenmark, 13England and Wales, 23Finland, 35France, 45, 49

Index

179

lump sums, 129periodic payments, 129provisional payments, 129punitive, 129quantum, 130social security, 130

defences, 125domicile, 125employers’ liability, 125enforcement, 132

cross-border, 132environment accidents, 125evidence, 127, 131fatal accidents, 125foreign lawyers, 130insurance, 127, 128jurisdiction, 125–26legal aid, 126, 128legal expenses insurance, 127legal profession, 128liability, 125limitation periods, 126, 130medical negligence, 125mental incapacity, 125, 126negligence, 125occupiers’ liability, 125procedure, 130product liability, 125road traffic accidents, 125, 128service of process, 130


Scotland, 133–43aeroplane accidents, 133animals, 133case management, 141children, 134, 135commencement of

proceedings, 140–42contingency funds, 135contributory negligence, 134costs, 135, 143courts, 141

Germany, 55, 61Greece, 69Italy, 81Netherlands, The, 103Northern Ireland, 115Russia, 125Scotland, 133Spain, 145Switzerland, 157

Road traffic accidentsCyprus, 3, 5, 7, 8Denmark, 13, 17England and Wales, 23, 26, 28Finland, 35, 39, 42France, 45, 49, 50Germany, 55, 56,

58, 59, 61–62Greece, 69, 70, 74Italy, 81, 86–87, 90Malta, 93, 98Netherlands, The, 103, 107, 109–10Northern Ireland, 115, 118, 119–20Russia, 125, 128Scotland, 133, 138Spain, 145Switzerland, 161

Russia, 125–32acts of God, 126aeroplane accidents, 125animals, 125case management, 131children, 125, 126commencement of

proceedings, 130contingency fees, 126contributory negligence, 125costs, 132courts, 131criminal injuries compensation


bereavement, 130employers’ payment, 130heads, 129interest, 129interim payments, 129

criminal injuries compensation board, 137


bereavement, 139employers’ liability, 140heads, 138–39interest, 139interim payments, 139lump sums, 139periodic payments, 139provisional payments, 139punitive, 141quantum, 140social security, 140

defences, 133–34domicile, 134employers’ liability, 133, 138, 140enforcement, 142–43

cross-border, 143environment accidents, 133evidence, 136–37, 141–42foreign lawyers, 141insurance, 136, 138jurisdiction, 134legal aid, 135, 137legal expenses insurance, 136legal profession, 137liability, 133limitation periods, 134–35medical negligence, 133mental incapacity, 134negligence, 133novus actus interveniens, 133occupiers’ liability, 133procedure, 140–42product liability, 133road traffic accidents, 133, 138service of process, 140–41

cross-border, 141settlement, 142standard of care, 133trade union funding, 136train accidents, 133volenti non fit injuria, 133witnesses, 142

Self-defenceDenmark, 14


180

Greece, 60Italy, 82Netherlands, The, 104Switzerland, 158

Service of processabroad, 10, 21, 31,

41, 66, 77,90, 100, 130

Cyprus, 5, 10Denmark, 20–21England and Wales, 31–32Finland, 41–42France, 52–53, 54Germany, 65–66, 68Greece, 76–77Italy, 89–90Malta, 100Netherlands, The, 112Northern Ireland, 122Russia, 130Scotland, 140–41Spain, 153Switzerland, 159, 164

SettlementCyprus, 11Denmark, 22England and Wales, 31, 33Finland, 42France, 53Germany, 67Greece, 78Italy, 91Malta, 102Netherlands, The, 113Northern Ireland, 123Russia, 131Scotland, 142Spain, 155Switzerland, 165

Social securityCyprus, 10Denmark, 20England and Wales, 31Finland, 41France, 48, 52Greece, 76Italy, 89Netherlands, The, 111

Index

181

service of process, 153–54cross-border, 153

settlement, 155trade unions, 148train accidents, 145volenti non fit injuria, 146witnesses, 154

Standard of careCyprus, 3Denmark, 13England and Wales, 23Finland, 42Germany, 55Greece, 69Italy, 81Malta, 93Netherlands, The, 103Northern Ireland, 115Russia, 125Scotland, 133

Switzerland, 157–65aeroplane accidents, 157, 161animals, 157case management, 164children, 158, 159commencement of

proceedings, 164–65contingency fees, 159contributory negligence, 158costs, 165courts, 164criminal injuries compensation


bereavement, 163employers’ liability, 163heads, 162interest, 162interim payments, 162lump sums, 162periodic payments, 162provisional payments, 162punitive, 163quantum, 163social security, 163

defences, 158domicile, 158

Northern Ireland, 121Russia, 130Scotland, 140Spain, 153

Spain, 145–55aeroplane accidents, 145case management, 154children, 146commencement of

proceedings, 153–54contingency fees, 148contributory negligence, 145, 146costs, 150, 155courts, 154criminal injuries compensation

scheme, 149criminal proceedings, 148–49damages, 148, 151–53

bereavement, 152employers’ liability, 153heads, 151interest, 151interim payments, 151–52lump sum, 151periodic payments, 151provisional payments, 151–52punitive, 152quantum, 152social security, 153

defences, 146domicile, 146–47employers’ liability, 145enforcement, 155environment accidents, 145evidence, 149, 154insurance, 145, 146, 148, 150–51, 153jurisdiction, 146–47legal aid, 147, 150, 155legal expenses insurance, 148legal profession, 149–50liability, 145–46limitation periods, 147medical negligence, 145mental incapacity, 146occupiers’ liability, 145procedure, 153–54product liability, 145road traffic accidents, 145, 150, 154

employers’ liability, 157, 163enforcement, 165environment accidents, 157evidence, 160–61, 164–65fatal accidents, 157insurance, 160, 161–62intervening acts, 158jurisdiction, 158legal aid, 159legal expenses insurance, 160legal profession, 161liability, 157limitation periods, 159medical negligence, 157mental incapacity, 158, 159necessity, 158negligence, 157occupiers’ liability, 157procedure, 164–65product liability, 157road traffic accidents, 161–62self-defence, 158service of process, 159, 164

cross-border, 164settlement, 165social security, 163trade union funding, 160train accidents, 157witnesses, 165

Time limitsSee Limitation periods

Trade union fundingCyprus, 6Denmark, 16England and Wales, 26Finland, 36France, 48Germany, 59Greece, 72Italy, 84Malta, 96Netherlands, The, 106


182

Northern Ireland, 118Russia, 126, 127Scotland, 136Spain, 148Switzerland, 160

Train accidentsDenmark, 13England and Wales, 23Finland, 35France, 45Germany, 56Italy, 82Northern Ireland, 115Russia, 125Scotland, 133Spain, 145Switzerland, 157

Volenti non fit injuriaDenmark, 14England and Wales, 24Germany, 56Northern Ireland, 115Scotland, 133Spain, 146

WitnessesCyprus, 11Denmark, 22England and Wales, 33Finland, 42France, 53Germany, 67Greece, 78Italy, 91Malta, 101Netherlands, The, 113Northern Ireland, 123Russia, 131Scotland, 142Spain, 154Switzerland, 165

Personal Injury: Practice and Procedure in Europe

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