The law dated 5 July 1985 applies to accidents involving motor vehicles. The term motor vehicles applies to cars, trucks, motorcycles, and any vehicle that is powered by an engine and can be driven on public roads. Employees who, when travelling to or from work, are the victim of an accident involving a motor vehicle can chose to request compensation either on the grounds of the law governing workplace accidents or the motor vehicle accidents law. They would be advised to opt for the latter, since it provides a better level of financial compensation.
Who is compensated?
The following are compensated:
- The driver of the motor vehicle, provided he was not at fault
The insurer must prove that the driver is not at fault if he wishes to limit or even eliminate his liability to the driver.
If there is no collision with a third party and the driver is the sole responsible party to the accident, he will only be compensated if there is a provision in the insurance contract that covers this specific risk. In addition, the level of damages that can be granted is limited by the contractual clauses.
- Indirect victims
Indirect victims are also eligible for compensation; they are generally next-of-kin (spouse, children, etc.).
Others, with a small number of exceptions, are also eligible:
The payers are:
- Insurance companies
The insurer of the car that was responsible for the accident pays the victim. However, insurers have signed an agreement between themselves whereby, in many cases, the victim’s insurer not only pays for the accident, but also does so with no option to request reimbursement from the insurer of the driver at fault. This system clearly does not encourage the victim’s insurer to obtain a just and fair award for his client.
- The Guarantee Office (Le Fonds de Garantie – « FGAO»)
The Guarantee Office compensates victims of an uninsured driver that has been found at fault. This is an increasingly frequent occurrence as many people drive without insurance because their driving license has been withdrawn.
The Guarantee Office also compensates the victims of accidents when the driver at fault has not been identified, for example when the driver has fled the scene of the accident.
How to go about claiming compensation?
- Preparing the file
The police will normally write an accident report on the day of the accident, which is sent on to the various insurers.
When the victim has been taken to hospital, the attending doctor will draft an initial medical certificate. It is important to mention all of the physical injuries sustained, even those that appear minor, so that the doctor can include them in the medical certificate. Indeed, complications can develop later on and it will be necessary to prove the link between any delayed complications and the accident.
The victim has no access to the police investigation. However, he can instruct a lawyer who will be able to obtain a copy of the witness statements and the steps taken by the police and the investigating magistrate.
Eligibility for the reimbursement of various expenses in connection with the accident (e.g. taxi bills for someone who is unable to walk normally, medication paid for but not fully reimbursed by Medicare or a private insurer, etc.) requires the victim to retain all invoices and bills.
- Steps the insurer must take
The insurer must appoint a doctor to examine the victim and assess his physical injuries.
If the victim has not yet fully recovered and his health is expected to improve, the doctor will fix a subsequent appointment at a date when this improvement should have occurred or when the victim has stabilized (when the victim’s state is said to be ‘consolidated’).
The insurer can make a provisional payment; this payment must be made within the first 8 months after the accident.
A full offer must be made within 5 months of the doctor’s final assessment once the victim is consolidated. Once the victim accepts the offer he can only go back on the agreement if his condition worsens.
- Steps the victim should take
The victim is often helpless against the insurer.
If the case is deemed criminal in nature, the police will ask the victim if he wishes to sue for damages in a criminal court – without explaining the pros and cons of such procedure.
The doctor appointed by the insurer will tend to underestimate the victim’s injuries, sometimes going as far as to ignore some of them.
The amount offered by the insurer will often fall short of what the victim could obtain if he sued in court.
To avoid these pitfalls the victim should have an independent medical counsel and a specialized lawyer who will be able to assist him during the medical examinations and during negotiations with the insurer.
The additional financial award obtain by the victim with their assistance will almost always outweigh their fees, thus making their intervention not only worthwhile but indispensable.
How much is the victim compensated?
Faultless direct victims can be compensated for their entire losses.
The amount can be decreased if the victim is found to be partially at fault (e.g. when a driver shares responsibility with another driver).
Relatives can seek compensation for moral grief for loss of a loved one and, if applicable, the surviving spouse can be compensated for financial loss.