We share a recent case handled by our Pravolex law firm, illustrating the challenges and complexities of compensating a foreign victim of a traffic accident in Belgium. The case highlights the particularities of the applicable law and transnational compensation processes.
Here's an example of a dispute that our firm has just closed.
A young tourist was hit by a cab in Brussels and taken unconscious to hospital for treatment.
When she woke up, she learned that she had significant lesions.
She's of foreign origin and doesn't speak the local language. She was in shock. After receiving first aid treatment, she was flown home.
His trauma was severe, both physical and moral.
It took him time to rebuild and find the strength to investigate the aftermath of his accident.
She contacted us.
We did some research and got our hands on the repressive file. The culprit was identified.
He was prosecuted and convicted.
We contacted his insurer and began the compensation process (medical expertise, negotiation, proof of damage, etc., all with documents from different countries and different legal and administrative systems).
At the end of a long process, our client was able to obtain fair compensation for her bodily injury and its after-effects, which she will unfortunately carry for the rest of her life.
Nevertheless, we're delighted to have been able to assist him in this process.
Don't hesitate to call on Pravolex for compensation and insurance issues. Our lawyers include Me DIMAKUIZA (cd@pravolex.be) with a sound knowledge of insurance law and experience in this field.
Here are a few thoughts on this type of case.
What compensation scheme applies when the accident takes place in Belgium but the victim of the traffic accident is a foreigner?
1. Jurisdiction: the court of the place where the damage occurred or, in the event of criminal proceedings, the court of the place of prosecution.
The criterion for identifying the competent jurisdiction in the event of a traffic accident is the place where the damage occurred.
In our case, the accident took place in Brussels. So we took the case to the competent Belgian court, which is the police court.
2. Applicable law: law of the State in which the accident occurred
When a foreign element is involved in a traffic accident, the choice of applicable law can become complex.
Which criterion should be used? Nationality? Place of occurrence? or license plate?
International regulations have been harmonized in this area, and the criterion used is the place where the accident occurred. The law of the country in which the accident occurred therefore applies to compensation.
For example, the Hague Convention of May 4, 1971 on the Law Applicable to Traffic Accidents has harmonized the connecting factor in the case of traffic accidents with a foreign element.
The main rule of the Convention is set out in Article 3: "The applicable law is the internal law of the State in whose territory the accident occurred.
In the case of our victim, the accident took place in Belgium, so Belgian law had to be applied regardless of the nationality or residence of each of the parties.
3. Compensation for damage
What about the civil aspect, relating to compensation for the victim's damage?
It is important to note that, in this respect, compensation for pedestrians involved in traffic accidents varies across Europe. Some countries apply the ordinary rules of civil liability, while others, such as Belgium, have introduced a system of automatic compensation.
Under Belgian law, pedestrians are considered to be weak users, with automatic compensation based on article 29bis of the law of November 21, 1989.
It was therefore not necessary to establish the driver's civil liability for compensation purposes.
The victim contacted the driver's insurer to arrange compensation for his loss, which took place in several stages.
a. Damage assessment
Firstly, a damage assessment was carried out by appointing an expert to carry out an amicable medical appraisal. This amicable medical assessment was paid for by the insurance company of the person who caused the accident. The medical expert then issued an expert report.
b. Discussing the amount of compensation with the insurer
Secondly, following this expert report, and after several reminders, the victim's counsel and the insurer's counsel carried out a financial assessment of the victim's damages.
The aim of this financial assessment is to ensure that the victim's injury is fully compensated, so as to restore him or her, as far as possible, to the state he or she was in before the accident.
Using the indicative table, we have assessed all items of damage, such as expenses, past damage and permanent damage.
In the case of the victim, as the damage was substantial, permanent injury was calculated using the capitalization method.
Capitalization is an actuarial calculation designed to convert all future indemnities into a sum that will cover all future losses.
Several factors are taken into account when calculating capitalization:
- Physiological survival (for non-economic losses) or probable profit for the victim (pensionable age for economic loss). To do this, it is necessary to rely on mortality tables. In this case, the mortality table used was that of Schryvers.
- Capitalization tables, for financial projections in the form of annuities, which may be certain, life annuities or temporary life annuities.
- The capitalization coefficient, which depends on the interest rate chosen. The latter must be chosen with care, since the lower the capitalization coefficient, the higher the benefits.
- The breakdown between past permanent injury (from the date of consolidation to the date of the decision) and future permanent injury (from the date of the agreement).
c. Procedural indemnity.
It should be noted that if the insurer is late in making an offer of compensation, and is the subject of a summons, the victim may obtain procedural compensation under article 1022 of the French Judicial Code.
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