At the first EWA Conferense in Zandwoord, Netherlands, in August 1996 it was decided to make survey of the legal rights of the whiplash patients in the membership countries.
To assemble relevant information a questionaire was sent to all the member organisations. I received answers from Sweden, Denmark, Netherlands, Belgium and Germany. Not all of the questionaires were completly answered. And also some of the answers were somewhat vage. This of course has influenced on the results. But I think the survey all together gives an idea of the similarities and the main differences in our members’ legal rights.
The results of the survey vere presented at the EWA conference in Zeefeld, Austria in june 1997. I will here give a summary of what was presented in Zeefeld.
Economic compensation for personal injuries arising from traffic accidents from the injuring party and/or his insurance company.
1. LIABILITY
Two forms of liability are relevant. Objective liability and liability based on fault. In all the Nordic countries there is a compensation system after car accidents that is buildt on objective liability.
In the other countries we find systems where compensation mainly are buildt on liability based on fault.
This may seem an important difference, and in many fields of compensation law this difference would make an decisive difference. But not so for most of of the whiplash-patients. This is since most of them are injured in accidents where their car is hit in the rear by another car. The question of liability are obvious in most of these accidents.
But if the injury has occured in other ways than the «classic», for instance in a front to front accident where the question of liability is not obvious, the patients in the Nordic countries will have a better case against the insurance company.
2. THE AIM OF THE COMPENSATION
All the legal systems are based on the same aim: Full compensation for the individual economic loss.
But as we all know it is a long way from the aim of the compensation to achieving a full compensation for all the loss.
In the following points we will look into the compensation factors that together are supposed to give the injured a full compensation.
3. SUFFERED AND FUTURE COSTS
The insurance company will cover the costs to medical treatement, medication, necessary help in the household and so on.
In all the countries the compensation in principle is ment to cover all necessary costs related to the accident. Here we have many and important differences in our legal systems. But in two areas the differences are quite distinct.
One major difference is that in most countries compensation for future costs are given as a lump sum. But in Sweeden the patient can choose to receive the compensation as periodical payments.
Another important diffeence here is that compensation for future costs can be standarized. In Denmark compensation for future costs are 6 X the yearly cost.
In the Netherlands, as in moust other countries, the injured are met with great distrust if he claims compensation for costs related to alternative medical treatment. Compensation for legal fees is in most countries a constant source of discussion. In Belgium legal fees are never covered by the insurance company.
4. LOSS OF INCOME
Here we also will see major differences in the field of standardizaton vs. a calculation of the real loss, and secondly periodical payments vs. the compensation as a lump sum.
In most countries the compensation is given as a lump sum ment to cover the loss of income untill the end of the patients working career.
In Norway this will be until 67 years of age where you normally receive old age-pension. If the injury has led to an income loss the old age pension will suffer
from this. It is therefore relevant to get compensated also a loss in the old age pension.
In Sweden they are using a system of periodical payments. In Denmark the system is that the income loss is fully compensated after a calculation for the first 6 months. Thereafter the patient will recieve a compensation that is the expected yearly income X 6 X the individual % of incapasity.
In Belgium there is a mixed system with elements of standardization. When a permanent incapasity is determind the compensation at lower degrees of incapasity is a fixed amount per degree. At a more important degree the compensation is a result of a calculation of the real loss.
5. COMPENSATION FOR NON-ECONOMIC INJURY
This is in most countries a compensation for «pain and suffering» and is ment to compensate lost quality of life.
In the Netherlands compensation is given for pain and suffering if you hold a job at the time of the injury. The calculation in the Netherlands, and also in Germany, is based on the patients age and the gravity of injury.
A patient in Norway are entiteld to compensation for pain and suffering if the patient has an permanent and serious medical injury. The medical invalidity must be not lower than 15%. Whiplash-patients in Norway are often by the medical experts placed between 10 - 20% medical invalidity.
In Sweden there is a compensation also if the injury is not regarded as permanent. In Denmark compensation is given if the injury is permanently mesured as low as 5%.
I understand that in most countries the compensation regarding pain and suffering is based on different systems of standardised calculation.
6. COMPENSATION FROM THE INJURER IN PERSON
In this area we have great differences. In some countries it is possible to claim a compensation in addition to the compensation of the economical loss direct from the injurer in person. In Norway and Denmark this is possible, but not very common, if the injurer has caused the accident by serious negligence.
On the other hand, in Belgium the injurer is responsible for all the compensation, as in Germany if the injurer had no insurance to cover the loss.
In Netherlands it is possible to get compensation from the injurer, but not in addition to the compensation from the insurance company.
The conclusion here must be that in many countries it is possible to get a compensation directly from the injurer in person, but this is not very practical.
7. CONTRIBUTION FROM PUBLIC ENTITIES
In all countries one will receive an economical help from public healt care systems. But there are great diffrences between the countries in this field.
It will not be a theme for this report to outline the great differences regarding public health care but I understand that the aim of full compensation is buildt on the ground that economical aid from public health care and compensation from the incurance company together is ment to cover the total individual loss.
In Norway therefore it is normally necacery to solve the patients problems towards the public health care before it is possible to make a final calculation of the future loss of income.
8. OCCUPATIONAL INJURIES
In Norway all employees are cowered by an obligatory insurance paid by the employer. Here we have elements of standardized compensation.
In Denmark there is a better compensation system if injured in an occupational injury than other kinds of injury. Sweden is reporting a decline in insurance systems for workers.
In the Netherlands and in Germany it makes no consequence if the patient is injured in an occupational injury or in any other way, but in Germany one can receive an occupational pension.
9. CONCRETE EXAMPLE
To compare the differences in compensation in an concrete example:
«A woman, age 40, of good health, is injured in a traffic accident in 1990. As a consequence of the accident she is declared to suffer a medical invalidity of 20%.
Before she was injured her annual income was NOK 200.000. Following the injury and up to the age when she is entiteld to an oldage pension, her annual income will be NOK 50.000. In addition to this she will receive social security benefits of
NOK 60.000 annually. The woman will have yearly permanent expences because of the accident estimated to NOK 15.000.
It is assumed that the woman and the insurance company will agree upon the facts stated above. It is also assumed that the total compensation will be paid in one sum i 1997.»
In this case, the woman would receive a compensation as follows:
In Norway 1.593.000
In Sweden 1.927.000
In Demnark 750.000
In Netherlands 2.932.000
One NOK has a value a little less than one FFR. Since Sweeden are using a system of periodical payment the capitalisation into a lump sum is done after Norwegian capitalisation practice.
As we see the compensation the woman will receive differs much after in which country she was injured. It is noticed that in Demnark where they use a system of standardized calculation of the future income loss the compensation is the far smallest.
10. SUMMING UP
In all countries the aim is the same, full compensation. But as we have seen «full compensation» does not mean the same all over Europe.
The differences in the systems of calculating the full compensation varies much from country to country. This is as expected. I think the most interesting issue is that in some of the countries it has been taken in use systems of standardization and also systems of periodical payments of future loss. This is a discussion that now take place in Norway, and maybe it will be an issue also in other countries in the near future.
The experiences from countries that for some time have used standardization and also periodical payments could maybe become further discussed in the EWA legal advisory group.
