Settlement of bodily injuries in Greece

1. Settlement ofbodily injuries in Greece

2. I. Legal basis for the liability of the wrongdoers • Concerning the legal basis for the liability of the wrongdoer, there is a mixed system, based on both, the principle of strict liability and the liability based on fault • The strict liability in tort is based on the stipulations of the law ΓπΝ/1911 (= Insurance Liability Act) and the liability based on fault is based on art. 914 ff. of the civil code regarding tort 2

3. A. Concerning strict liability • As Liable persons are regarded: The owner and the driver of the vehicle according to (Art 4 Insurance Liability Act) • Exceptions wherestrict liability is not applicable, are the following cases: 1) bodily injuries of passengers 2) damages to objects inside the vehicle 3) co-liability of the driver and the third party in case both suffer a damage 4) collision of two or more vehicles 5) State owned military and fire fighter vehicles for damages which are caused on carrying out an urgent public task 3

4. The Extent of obligation of loss replacement • concern • The owner, who is also liable in case his vehicle is stolen and damages are caused with this stolen vehicle. But it has to be remarked, that his liability goes only up to the current market value of his vehicle. • Generally the owner is exclusively liable without any limits, even for inevitable events. • While the driver has restricted liability, in case the accident is a result of a failure of the vehicle, which he could not have known, even by applying extreme care and attention. 4

5. There are Discharge possibilities • for Exemption of liability of the owner, the registered user and the driver 1)in case of force majeure which are According to jurisdiction: lightning, floods, earthquakes and general natural catastrophes as well as the turnover of the vehicle in violent demonstrations (rallies) or 2) in case the third party is the exclusively responsible for the accident. But there is no exemption of liability, if the accident is caused by a person “non compos mentis“ which is not certifiable sane. or 3) In case of exclusive liability of a person who was not involved during the running of the vehicle 5

6. Referring to the Joint and several liability . It is to point out that the owner, the registered user and the driver have a Joint liability up to the payment of the total sum to which they have been convicted. • If the indemnifications of those, obliged to effect compensation, are different (due to limited liability of the owner or co- liability of the driver etc.), than, there exists a right to claim against each other according to the stipulations of the civil code. 6

7. B. Referring now tothe liability based on fault according to art. 914ff civil code and regarding illegal actions • The Liable party according to liability based on fault and the pre mentioned Civil code:is „the one who culpably and unlawfully causes harm to others“ • This regards in traffic accidents, those persons, which are directly involved. • According to art. 922 civil code this, however, also includes the principal and his vicarious agent, who caused the accident, while carrying out his assignment. Any exemption of the principal, with the reference that he chose his vicarious agent carefully, is not possible. 7

8. Coming now to the Bodily injuriesI will refer first to the Indemnity in case of death A compensation is considered for the following issues: . The Treatment and transportation costs of the victim until his death (art. 928 civil code) and the • Funeral costs, which include: Expenses for the funeral, the tombstone, grief mass and catering for the guests according to the local custom, in general everything, which suit the social status of the deceased. 8

9. In continue we have the compensation for the loss of maintenance (art. 928 civil code)of the surviving dependants Where the Entitled persons: • By law are The surviving spouse (arts.1390, 1391 and 442 civil code), relatives in ascending and descending order, as well as brothers and sisters, who cannot maintain themselves • The Extent of maintenance Regarding the Spouse, there, the assessment is calculated according to the financial situation of the family, by taking into consideration the special needs of the entitled person within the frame of the family life, the income of the deceased and the own income of the entitled person from professional activity or assets, as well as the number of children entitled to maintenance etc. Regarding the children, it has to be considered that, as both parents are liable to maintain based on their financial possibilities, the maintenance which was provided by the deceased, is to be calculated accordingly. Regarding the relatives in ascending and descending order as well as the brothers and sisters, there the basis for the entitlement is a lack of means and an inability to maintain themselves. 9

10. The duration of maintenance payments depends on the life expectancy the deceased would have had. This is evaluated by statistical data and also by taking into consideration his health condition prior to death. • For the Children up to the age of 18 or until completing an adequate education. • Calculation tables or an exact method of calculation do not exist. 10

11. Offsetting losses by advantages due to the damaging event . Are legally fixed by Art. 930 3 of the Civil code, which states that: „The indemnity claim cannot be excluded just because a third person is obliged to the payment of indemnity or maintenance“. • Jurisdiction says, that: The advantages gained due to the premature death of the deceased are not to be counted against the entitlement for maintenance, for example the advantages gained through a heritage. 11

12. Regarding the compensation for lost services • Art. 928 Abs. 2 Civil code says that: „The party liable for compensation is also liable to pay compensation to those to whom the deceased was legally obligated to render services.” - This includes the marriage partners reciprocally and the children towards their parents (art. 1398 and 1508 Civil code) where - The extent of the services of the marriage partners is determined by their life circumstances and is measured in money. - The Children are obliged to render services if they live in the same household with their parents and are raised and maintained by them. This can also have to be applied for children of full age. - The claim for compensation is also applicable in case the services are rendered free of charge by a third party. 12

13. Continuing with the non-material damage We recognize that • Art. 932 civil code awards an indemnity for pain and suffering to the injured party and even to the family of the victim in case of his death. • This claim can be asserted both, in cases of strict liability, as well as cases of liability based on fault • It is not undisputed who can be seen as a family member of the deceased and there are no legal regulations to determine this. • Concordantly counted as family members are: a) Spouses, parents, children, brothers and sisters and grandparents. b) Parents-in-law, brother- and sister-in –law as well as c) fiancés and partners living in a „free marriage“ based on an agreement legalised by a notary. • The indemnity for pain and suffering always has to be paid as a lump-sum. 13

14. In Greece unfortunately exists no concordance regarding the entitlement for indemnity for pain and suffer The jurisdiction is severely disputed in the following cases of indemnity for pain and suffering : 1st Children, which were born outside marriage and are biologically definitely a direct descendant of the deceased, but were not accepted by him/her. 2nd The determination, of who belongs to the family of a foreigner, especially from countries where the family relations are completely different than in Greece There are two opinions: a) kinship should be determined according to the country of origin b) kinship should be determined, based on private international law, according to Greek law Currently this question is treated by the big senate of the supreme court and the decision will be of great practical meaning, as currently more than 1.000.000 immigrants live in Greece. 14

15. Regarding the Compensation for bodily injuries The following expenses can be compensated: • Treatment costs, this means doctor‘s fees, hospital fees, costs for rehabilitation, necessary assistance by others, expenses for supplementary food etc. Furthermore costs for transportation, even abroad, if necessary for the stay in a health resort if prescribed by the doctor and costs for specialized facilities. • The medical treatment can also take place abroad, if there are no adequate specialists or specialized institutions in Greece. • According to art. 930 § 3 civil code, there is no offsetting of advantages if the costs are paid by an insurer, who is not entitled to present a claim of recourse. • Costs for assistance for housekeeping and care, if the injured cannot cope with his/her household like before the accident, or cannot care for him-/herself. • And this claim is not excluded, even if a third person renders these services free of charge, or the costs cannot be documented. The proof that the necessity is given is sufficient. 15

16. Speaking about the loss of income of the direct victim • The loss of income is evaluated based on the actual income prior to the accident , in connection with the expected increase of income (or decrease, as currently in Greece) in future. • Regarding freelancers and companies measures taken as a precaution for the future, have to be taken into consideration in addition to the expected increase in income. • As proof are accepted the income tax declaration as well as witness statements. • Although, there is a dispute whether the net income or the gross salary should be compensated. • Not to be taken into consideration is the income arising from immoral activities such as prostitution, or if the necessary official approval is missing (for example overtime not notified to the authorities). • As an exception and based on humanitarian reasons, the income of immigrants, even without a work permit, is also to be compensated. 16

17. For the Claim of the indirect victim . in case of bodily injuries, the party liable for compensation is also liable to pay compensation to those, to whom the deceased was legally obligated to render services (art.929§2) • Entitled persons are: spouses reciprocally and children towards their parents, if they live together with them and are raised and maintained by them. • There is also no offsetting of advantages, if a third person renders these services free of charge. 17

18. Concerning the future loss of income in cases of partial or total disability It is to note that: • The extent is initially determined according to the methods described previously. • The medical percentage of disability is determined according to tables. • Regarding employees and workers, the competence lies with the IKA the Greek social insurer. Their indications are binding for the courts. • The Total disability is considered to be reached with 67%. • Regarding other occupational groups, in general a medical expertise is ordered by the court, through a certified doctor listed in the court‘s expert catalogue. But the victim may ask for his own expert as a consultant. • The extent of the disability to work is not identical with the percentage of disability. Decisive is the professional impairment, with best example: a pianist. • In cases of partial disability the victim must, under certain circumstances, change his profession or acquire new skills. Otherwise the indemnity may be decreased due to lack of cooperation in minimising the damage. • The victim must undergo medical surgery, if it is promising, not too dangerous and the pain to be expected is not too strong. Otherwise a decrease of the indemnity, due to lack of damage reduction will be done. 18

19. There is also an additional claim for disability or disfiguration(Art. 931 civil code) with: • A special compensation covering economic loss in general and social disadvantages resulting from disability or disfiguration. • Until recently the jurisprudence demanded strict proofs for an additional economic damage in future. Lately, and based on a verdict of the supreme court, the opinion has become accepted, that this is a special title beyond the mere economic loss, which has to be compensated additionally, without strict proof. • The assessment criteria are decided by the judge on his own discretion, taking into consideration: the degree of disability and disfiguration, the age, the sex, the profession, the hobbies etc. of the injured. A few examples of amounts granted will follow at the end of this presentation. ???? 19

20. The question is often, how to indemnify, capital sum or annuity? • Basically the compensation for future losses such as loss of income or loss of profit as well as missing maintenance or services has to be paid on a monthly basis. Only the person entitled to compensation can apply in court for a capital payment and such a payment is only granted based on important reasons (art. 930 §1u.2 civil code). • The jurisdiction on the other hand applies strict criteria for accepting an important reason and therefore such verdicts granting a capitalization are rare. • Further, there exist no charts for capitalization. • According to the jurisdiction in case of capitalization, all awarded sums have to be paid as a lump sum without deduction (e.g. discount factor). • In an out of court-settlement, deductions are generally made by taking the discount factor into consideration and pointing out the uncertain future duration of the obligation. 20

21. (Social insurers – recourse – allowable payments) • The most important and largest social security institution (medical and pension fund) is the IKA which insures almost all of the private employees and workers. • IKA is the only insurer who has “ex lege” a right of recourse against the responsible party up to the full social security benefits paid, as by law the claims of its insured persons are subrogated “cessio legis” to IKA (Law 4104 / 1960 art. 10). • Other social insurance institutions, such as the insurer of the state employed, or the insurer of merchants, do not have a right of recourse. • The recourse can, on the other hand, be based on a contractual agreement about the subrogation of the claim such as in case of a voluntary private insurance. 21

22. Getting to the prescription terms, it is to remark that • For claims against the owner, registered user and driver, based on strict liability as well as the right of recourse of these persons against one another, the period of prescription is two years starting from the date of the accident (art. 7 and 8 §2 Insurance Liability Act) • Knowledge of the damage and the damaging party is not necessary. • Claims arising from liability based on fault according to the stipulations of the civil code, prescribe after five years starting from the notice of the claim and the responsible. This period is extended, if at the same time claims arise because of a criminal act, which has a longer period of prescription. The absolute prescription term:is 20 years • The claims against the TPL-insurer and the guarantee fund prescribe after five years (art. § 2 of the law 489 / 76). • All prescription periods are extended to twenty years, if the obligation to grant an indemnity for the positive or negative damage is acknowledged by a final and absolute sentence or an official, enforceable and notarial document. 22

23. The limitation period starts again if an unforeseeable but causal bodily damage or health damage comes up. Absolute precondition therefore is: the inability to foresee the remote consequences in spite of observing the known medical conditions. • The recourse claims of the social insurers, which base on subrogation, are subject to the same limitation periods, which are valid for claimants. • It is important to notice that: 1st ) the limit of 5 years foreseen by the civil code starts only after the claims settler in charge gets knowledge of the claim and the claimant. 2nd ) a law suit filed by the claimant does not interrupt the limitation period for the social insurer and 3rd ) the new limitation period which starts in case of unforeseeable remote consequences is also valid for the insurer. 23

24. Concerning the Interruption or suspension of the statute of limitation It has to be pointed out that • An Interruption is only possible through filing a law suit or acceptance • The suspension occurs in case of force majeure or malicious behaviour of the person obliged to provide compensation during the last six months of the limitation period which hinders the claimant to file his claim. 24

25. Various Data of interest are: Minimum sums insured:which were Per 01.06.2009 € 500.000 material damage € 500.000 personal injuries per claimant, irrelevant of the total number of claimants. Per 01.01.2011 € 750.000 material damage € 750.000 personal injuries per claimant, irrelevant of the total number of claimants. And will be Per 01.06.2012 € 1.000.000 material damage € 1.000.000 personal injuries per claimant, irrelevant of the total number of claimants. For the damages exceeding the minimum sums, the insured, the driver, the registered user and the owner are liable as joint and several debtors. Therefore it is usual to file law suits against these persons as well as against the insurer. On doing so, the claimant protects himself also against a bankruptcy or a withdrawal of the concession of the insurance company. 25

26. The Interest on claim during litigation is at the moment 9% as of delivery of the lawsuit or knowledge of a very analytical listing of all claims of the claimant and information of the liable for compensation about the same, including information about the reason and the amounts claimed • A very unpleasant part, is the duration of a lawsuit until the verdict: a) 1st instance: 6-14 months since the first hearing b) 2nd instance: 6-14 months since the first hearing. c) Supreme Court : 3 months since the first hearing. For the delay until the date of the first trial has to be added: At the District court, it takes several months after filing the law suit At the Court of appeal, it takes at least one or even two years after filing the appeal Appeal on points of law: only in the end of 2014, if the appeal is presented today Even longer delays are not uncommon. 26

27. The Costs of a lawsuit are often cleared, when the court partially accepts the claims presented. Generally the winning party receives only a small part of the legal costs and has to take over the rest. • The costs for technical experts are only refundable if the court does not declare them as exaggerated precaution. Out of court they are hardly refundable. • The police report is set up officially only in cases with bodily injuries by the police who also takes over the preliminary investigations. In cases involving merely material damage the police only sets up a report if one of the parties involved asks the police to come. This report contains only the most basic information, without dealing with the question of responsibility. • Finally, the financing costs which are only refunded exceptionally in court cases, but they are not refunded out of court. 27

28. Pain and suffer

29. Moral damage

30. THANK YOU FOR YOUR ATTENTION !