Following the recent legislation developments, litigation solicitors are required to be familiar with the rules regarding limitation, liability and heads of loss in foreign jurisdictions.
Whilst the concept of ‘Third Party Liability Insurance’ is recognised throughout Europe, the types of compensation that are covered vary between each jurisdiction. Some policies may not provide compensation for certain heads of loss and, even if they do, the conditions that need to be satisfied in order to claim the loss will depend on which country’s laws are being applied. This can lead to massive differences in potential compensation levels for the Claimant.
The variations between the European jurisdictions largely occur in relation to the limitation period in which a claim can be brought, the procedure for pursuing a claim through the courts and the types of compensation that can be claimed.
General limitation periods
In most European countries, periods of limitation will vary depending on whether the claim is made against an individual or an insurer and whether the damage involves personal injury or just property. Some countries also have a different period of limitation where a claim is being pursued through the claimant’s own insurance company rather than against the other party.
As a general guide, the list below identifies the different limitation periods across Europe:
1 year – Spain
2 years – Cyprus, Czech Republic, Italy, Ireland, Malta
3 years – UK, Germany, Finland, Poland, Portugal, Romania, Sweden
5 years – Denmark, Hungary
10 years – France
Compensation for personal injury and non-pecuniary losses
As a general principle, all countries in the European Union allow compensation to be recovered where a person has been physically injured. The main differences between the jurisdictions arise in respect of claims of general damages for related anxiety, stress or psychological trauma.
In Germany, shock and anxiety symptoms generally do not qualify for compensation unless they form a recognised medical condition. Similarly, in Greece, anxiety is only subject to compensation if it equates to a chronic condition. In direct contrast, any mental impairment is considered to be a personal injury in Austria and is therefore subject to compensation.
The Italian jurisdiction draws a distinction between the compensation entitlement for psychological damage or psychiatric damage; whereas in Belgium these are treated under the same head of loss and can both be compensated.
Loss of earnings
The concept of compensation for loss of earnings can be found across the majority of European jurisdictions; however, the extent to which this can be claimed and the criteria that must be satisfied varies greatly.
As an example, in the Netherlands, the period of loss of earnings that can be claimed ends when the claimant is declared medically able to work again. In Denmark however, compensation is awarded from the date of accident until the victim returns to work.
The level at which compensation for loss of earnings is valued also varies between countries. For example in Germany, a claim for loss of earnings is calculated based on how the salary would have increased had the accident not occurred, compared to the actual income.
In the UK, pursuing a claim for the cost of replacement vehicle hire is generally a matter of course. This is in direct contrast to the compensation system in France where the cost of hiring a replacement vehicle is only recoverable in exceptional circumstances and where a professional daily need can be shown. Commuting to work is not included as a professional need.