Principle 2:
The victim should not only be able to address a claim to the person violating the traffic rules or – if based on the operational risk of the use of a motor vehicle – to its keeper. If an entity (“the compensator”) was established by law to offer full or partial compensation for damage resulting from the use of a motor vehicle in road traffic, the victim should also be able to address the claim to such entity under the conditions of the applicable law.
In the next of our series providing additional context and information around the various principles that make up the Charter of Road Traffic Victims’ Rights, we turn our attention to Principle 2.
The main aim of this principle is to make it clear that the victim’s rights should be respected by any person who is responsible, by rule of law, for compensating the victim’s damage. That goes for natural persons or legal persons.
In all countries where the Green Card system is in place, victims have a direct right of action against the motor insurance provider and it may be hoped that the insurer will respect the Charter’s principles when compensating the victim.
However the Charter goes further and makes it clear that other institutions may also be called upon to compensate the victim in line with this principle. These could include social insurance bodies, correspondents, claims representatives, Green Card Bureaux, Guarantee Funds, Compensation Bodies, insolvency bodies, liquidators of insolvent insurance undertakings and more. The principle is also relevant for people or bodies not directly responsible for the compensation of victims, but who are involved in the compensation process – such as loss adjusters, medical experts and lawyers.
The purpose of this principle was driven by the evolving compensatory environment when it comes to motor insurance claims. Originally, the only person who was responsible for compensating the victim was the person who caused the accident. Even if they were insured, their insurance provider only had to compensate the policyholder in accordance with the terms of their insurance contract, after they in turn had compensated the victim.
So, basically there was no direct relationship between the victim and the insurance provider of the person who caused the accident. This meant the victim may not have been able to gain access to compensation if there was a deficiency in the application of the insurance contract, such as if the insurer invoked contractual exclusions like drunk driving or non-payment of premiums.
Thankfully, those days are now long gone. As time has moved on and the practical application of insurance has evolved, the victim was granted a direct right towards the person who caused the accident and their insurer. This effectively meant the victim no longer had to be dependent on the willingness of the person who caused the accident to receive their compensation.
Going even further, other bodies have also come into the picture in line with modern practices, in order to protect victims of cross border accidents, accidents caused by uninsured or unidentified vehicles and more.
This principle also specifies the responsibility of the vehicle’s “keeper”. When clarifying Principle 1, we already explained that the mere operational risk of a vehicle may sometimes also give rise to a right of compensation. The obligation to insure a vehicle’s operational risk not only lies upon the driver or the owner, but may also be the keeper’s responsibility (for instance in case of a leased car).
The language also outlines that this principle takes account of the “conditions of the applicable law”. By this, the principle makes it clear that the compensation being provided must also take into account other legal obligations. For example, certain Guarantee Funds must only operate as a kind of ‘compensator of last resort’. This means the Guarantee Fund must only compensate the victim for the damage which is not compensated by any other parties, such as own damage insurance or social security. Therefore, the bodies compensate ‘under the conditions of the applicable law’.
Overall, Principle 2 of the Charter makes it clear that the victims of road traffic accidents can access compensation from all the relevant parties involved, whether that is the insurance provider of the driver who caused the accident or other bodies involved in the delivery and management of motor third party liability insurance across the Green Card system.
