Compensation of close relatives of victims of traffic accidents;

consequential/indirect losses

Luxembourg 14th Conference - Traffic law days - Sorin Greceanu 09 Oct 2013

Practical case

Christopher Martin was 42 years old at the time of his fatal road accident on March 15th, 2013 in ROMANIA .

His wife, Marylin Martin was 46 years old and her two children, Nicolas and Jennifer, 15 and 12 years old.Christopher Martin was a bank employee, his annual net income was 32,000 €.Marylin Martin is a teacher, her annual net income is 26,000 €. Expenses of the funerals (according to the invoices):- Construction of a grave for 6 persons: 5,600 €- Funerary coffin, ceremony, funeral expenses according to invoices: 2750 €- Funeral notices and book of condolences: 210 €- Thank you cards: 150 €Other expenses: accommodation of the brother of the deceased (2 nights with breakfast): 210 €In addition to his two children and his wife, Christopher had his two parents, a brother and a sister, and his grandmother (the latter did not live in his home).He also had an uncle and an aunt living in Spain which he did not see very often.His wife requests moreover the compensation for moral damages to the profit of Kevin, a childhood friend of Christopher, witness at their wedding and godfather of his son, with whom he made his jogging regularly.

Definition of family members

Article 258 of the new civil code – family(1) The family is based on marriage of the spouses, their full equality and the right and duty of parents to ensure the upbringing and education of their children.

Article 259 of the new civil code – marriage(1) Marriage is the union of free consent between a man and a woman,

done by law.(2) The man and woman have the right to marry in order to start a family.

Article 405 of the new civil code - kinship(3) natural kinship ties are based on the descent of a person from

another person or several people that have a common ancestor.(4) Civil Kinship is the relationship resulting from the adoption concluded

as provided by law.

Who is entitled to compensations

Article 1391 of the new civil code - Compensation for non-economic losses

(1) In case of bodily harm or health, can be granted compensation for restricting opportunities for family and social life.

(2) The court may also award damages to ascendants, descendants, brothers, sisters and husband, the sorely tried by the death of the victim and any other person who, in turn, could prove the existence of such an injury.

Who is entitled to compensations?

Based on the above mentioned legal provisions, the moral loss can be presumed for the close/first grade relatives and husband/wife of the deceased person. Any other person should prove the existence of such a loss for moral suffering.

In the vast majority of cases, the Courts award compensations only to first grade relatives. Only in special cases when other relatives prove a close relation with the victim, compensations may be awarded by assimilation with first grade relatives.

Compensations

- loss of parents` income for the children 1/3 of the net income of the deceased parent (according to art. 529 Civil Code) from which there will be deducted the payments form the social security pension for underage children – payable until the age of 18 but no more than 26 if the children attend any form of study as college, university etc;

- all funeral expenses (according to invoices) and also the transport and accommodation costs for the brother attending the funeral;

Material damages

Compensations are individually assessed.

Mat

eria

l dam

age

Funerals – 4.044 Euro(only 1/6 of grave costs + full ceremony costs)

210 Euro (brother`s accommodation)

Loss of income for the childrenAprox. 4500 Euro / year for each at least until the age of 18 or until the age of 26 if during their education.

Compensations

Mor

al lo

ss Wife – 14.000 Euro;Children – 14.000 Euro for each;

Christopher's parents – 19.000 Euro for eachChristopher's brother and sister – 8.000 Euro for each

Grandmother, uncle and aunt – NO (in very rare cases) Christopher's friend – NO (extremely rare cases)

Compensations

Tota

l com

p. For material loss – 116.754 Euro (payable over 15 years)

For moral loss – 96.000 Euro

Grand total: ≈ 213.000 Euro

Compensations

Reference / scales for moral damages

Art. 49 of ISC Order no. 14/2011 provides only that moral damages will be awarded– “… according to national legal provisions and jurisprudence”. The National legislation does not provide any objective criteria for moral damages so we are left with the jurisprudence.

Balance

The Guarantee Fund needs to have a balanced position between the interests of the claimants/ victims and those of the responsible/liable person.Since 2007 we`ve started to collect Court decisions in order to try to find some objective criteria for moral damages assessment.

Legal provisions

Reference / scales for moral damages

We have discovered an independent source for the jurisprudence. This is the site Jurindex at he following internet address www.jurisprudenta.org. Jurindex is a free service which aims to provide free access to judicial decisions by the courts. Jurindex is a Project developed/managed by the Court of Vrancea developed under the auspices of the Superior Council of Magistracy from Romania.

Reference / scales for moral damages

The site of Jurindex contains all the decisions of the Courts of Appeal issued between 2008 and February 28, 2010.

There are a total of 233,921 documents published. The latest data contained by the Jurindex portal (www.jurisprudenta.org) was collected.No other sources were accepted from any interested parties to avoid any criticism regarding our objectivity / the objectivity of the Guide.

Daunele morale în caz de vătămări

corporale sau deces

In 2012 we have published the

first edition of a “Guide” for

compensation of moral damages

Available also in English-free translation-at: www.fpvs.ro

Reference / scales for moral damages

2339 Court of Appeal decisions pronounced in 2009 and 2010 were studied;

There were statistically processed decisions for unlawful acts produced starting with the year of occurrence 2006;

In case of decease there were centralized 715 cases;

For bodily injuries there were centralized 621 cases;

Reference / scales for moral damages

Results of the Guide

Medium amounts awarded by the Courts of Appeal

For wife / widow 14.000 Euro For each underage child 14.000 EuroFor each overage child 9.000 Euro For each parent 19.000 Euro For each brother/sister 8.000 Euro

Thank you for your kind attention.

Luxembourg 14th Conference - Traffic law days - Sorin Greceanu 09th Oct. 2013