HOW TO CLAIM DAMAGES IN THE EVENT OF A CAR ACCIDENT IN ITALY>
HOW TO CLAIM DAMAGES IN THE EVENT OF A CAR ACCIDENT IN ITALY
ITALIAN LAW ON CAR ACCIDENTS
According to the Italian Civil Code – articles 2043 and 2054 – any individual causing a damage has the duty to make it good and restore the victim, putting him back in the position he would have found himself if the damage had not occurred at all. In the event of a road accident involving two or more vehicles, Italian law presumes, until proven otherwise, a contributory negligence, i.e. all drivers have contributed equally to produce the collision. It is important to keep in mind that in Italy the owner of a vehicle is jointly liable with the driver, unless proved that the last one had used the vehicle against the owner’s will. Anyhow, the owner will always be the one responsible for damage resulting from construction defects or failure to maintain his own vehicle.
The Italian Civil Code identifies a distinction between patrimonial damages and non-patrimonial damages:
Patrimonial damages loss in the economic assets of the injured party directly. They can refer to “consequential damages” as immediate and direct consequence of the damage, which caused the economic loss (medical expenses, loss for victim’s goods, etc.) or to “monetary loss”, that is the reduction in incomes suffered or that will take place in the future caused by the injury to be compensated.
Non-patrimonial damages when an intentional or negligent act causes a personal injury. They are classified as “biological damages” relate to physical, mental and social damages and as “moral damages” consisting of the moral harm, anxiety, distress and offence to a person’s general well-being.
In Italy, it is mandatory for vehicles to be insured by authorized insurance companies. That means the most of the damages have a fair compensation, but many times the compensation released may not satisfy fully the damage, so claims before a court are likely to rise.
NO PHYSYCAL INJURY CASES
When the accident happens between two vehicles only and if there is no physical injury, then both parties may revert to an amicable procedure (Constatazione amichevole d’incidente) and fill in the blue document (modulo blu) of the Convention for Direct Indemnity (CID, Convenzione Indennizzo Diretto). This document is provided by the insurance company and should be kept in the car.
Included in the accident report are the following details:
Name of the people involved in the accident
Details of the insurance companies
Registration plates of the vehicles involved
Circumstances and description of the accident
Signature of both drivers
A copy of the accident report must be sent to the insurance company within three days, and the car must be kept at their disposal for an expert’s report. The insurance company then has ten days to assess the damages, and must pay within 15 days.
If the insurance company disagrees with the amount of work to be done on the car, it will pay a provision based on an estimation (offerta di risarcimento); the difference can be claimed later on.
As of 2004, the “amicable procedure” is also valid, under certain circumstances, where there have been injuries:
The vehicle in which the injured person has travelled is damaged
For each injured person, damage to the person (physical damage, moral damage, material damage and medical fees) do not exceed the amount of €15,000
PHYSICAL INJURY AND PERMANENT DISABILITY CASES
In case of serious accident the Italian Authorities (Road Traffic Police, Local Police) arrive on the scene of accident to provide help for the injured, re-establish traffic flow, gather all the necessary information about the accident and they will take note of evidences and statements from the parties to draw up a report.
In case of damages, the report will acquire particular importance to the parties, since they are entitled to request a copy of it as an evidence of their claims. Please notice, that, when injuries have occurred, the report will be released only after the 90 days necessary for the submission of a potential lawsuit for personal injury
Definition: physical, mental and social damages. The most recent definition of biological damage is provided in articles 138 and 139 of the Code of the Insurances, which define this category of damage as, “the temporary or permanent injury to the reduction of psycho-physical integrity of a person, regardless of the person’s capacity to produce an income.” Biological Damage is divided into two sub-categories: temporary disability and permanent disability.
the total number of days needed to recover from the accident, considering the natural capacity of the body to recover and the treatments needed to restore the original psycho-physical conditions of the victim – and it is measured in days.
If a person is unable to perform any activity –> temporary disability is total.
If a person is unable from performing only some activities –> temporary disability is limited.
the reduction in mental and physical health for conditions that are not curable, and it is expressed as a percentage. The assessment of the personal injury must be carried out by a forensic expert of medical science.
Biological damage is made by applying predetermined criteria provided by the law – ordered by the court or tribunal. The most commonly applied criteria is the one provided by the Law and by the Courts, which calculate the damage by percentage from 1 % to 100% crossing with the age of the injured
Until 9% of permanent the scale is provided by Law, called
For the damage from 10% the Italian Courts had calculated different criteria; the most common and used is the Court of Milan’s one.
You can calculate by yourself here
- “Moral damages” consist of the moral harm, anxiety, distress and offence to a person’s general well being. Accordingly, the assessment of the quantum of moral damages is related to the percentage of biological damage – up to 20%. This is in accordance with article 139 of Legislative Decree of 7 September 2005 n. 209 (Code of Insurances), which also provides the power to increase the sum of compensation.
DAMAGES BY DEATH
The damages suffered by the victim caused by physical injuries leading to death after a brief lapse of time, also referred to as damages due to killing or loss of life.
In jurisprudence, however, there has been – and there still is – a marked difference of opinion on the subject of how to compensate injuries causing immediate death or, alternatively, injuries causing death after a brief lapse of time.
According to a first opinion, somewhat restrictive, given that death concerns a juridical asset of life, as such different from good health (since loss of life does not constitute the maximum lesion of the right to health), damages by death cannot form part of biological damage (Civil cassation, work section, 27 May 2009, no. 12326).
Against this, another opinion stating that damage from immediate death must be included in the field of moral damage and forms part of the compensation to be considered in a unitary and all-inclusive manner, personalising the overall amount and also taking into account the above type of damage, provided there has been a specific and motivated request by the injured parties. Psychological suffering characterised by maximum intensity and a limited time span, must be compensated as moral damage, since it will not degenerate into illness giving rise to biological damage due to the limited interval of time between injuries and death (Civil cassation, Section III, 8 April 2010, no. 8360, and Civil cassation, Section III, 13 January 2010, no. 458).
CROSS-BORDER ROAD TRAFFIC ACCIDENTS
Cross-border road traffic accidents represent a small percentage of road traffic accidents in the EU27. Of these, the majority potentially create a risk of undercompensation of the non-resident victim, due to difference in the standard of living as in the calculation of the quantum of damages in member states. The problem of victims’ undercompensation in the event of a cross-border traffic accident has so far been approached mostly under the aegis of the need to achieve further harmonisation in European Tort Law, especially within the debate on the “Rome II” regulation on non-contractual obligations. Already during first reading, the European Parliament proposed to address this issue by mandating the application of lex damni when assessing the quantum of damage awards.
Avvocato Carlo Bottino Lawyer in Milan – Founder of Angloitalianlaw