road accident and compensation issues
Your rights. Each week, Maître Déborah Carmagnani, lawyer at the bar of Nancy, answers questions from readers of ici-c-nancy.fr
Every week, the legal explanations of Maître Carmagnani, lawyer at the bar of Nancy responds to the readers of Here c Nancy / illustration picture
I am 24 years old, and on May 16, 2016, I was hit by a car. The place: rue Lafayette in the old town is in ZONE 30 with a 30 km/h marking on the ground and signs indicating 30 km/h. The facts: I crossed a few meters outside the pedestrian crossings. The consequences: Cranial trauma, hospital, examination, dermabrasion doctors’ reports, No ITT since I am unemployed and no sequelae. Damaged leather jacket, trousers cut by firefighters. There was a police report and I filed a complaint.
Apparently the opposing insurance company, on the report of the gendarmerie, declared me responsible for the accident and although the accident took place in a zone 30 and that the Highway Code stipulates (art R.110.2 .. .the reduced speed of vehicles makes it compatible with crossing pedestrians in good safety conditions all along the street. The layouts must therefore tend to facilitate pedestrian crossing at all points of the roadway, by limiting the use of crossings to pedestrians….+ art R413-17 of the Highway Code which specifies that all drivers must be in control of their vehicle…) I have legal assistance les A**** which does nothing conclusive. We are on 09/14/2017, 16 months later. And nothing happens. I have not perceived anything nor officially received a proposal for compensation. However, there is the Badinter law which should apply.
3 weeks ago, La M**** had my jacket appraised (which at the material time was new — gift of 04/16/2016 —) then told me that given my so-called responsibility, she will not reimburse him…. The A’s**** told me that the M**** had offered 100 € in compensation, but that they wanted to contest this sum. I am not entitled to legal aid to assert my rights, because I have a legal assistance contract and as I am at the RSA I cannot afford the services of a lawyer (I consulted a of your colleagues, but the estimate of 3000 € cooled me down or even froze…)
My legal assistance contract provides for lawyers’ fees, but my correspondent at A**** kindly made me understand that it was not worth it, because the dispute was benign…. Here is the inventory. Can you guide me please? What can I do ? Then I constrain the A’s**** to pay me a lawyer or the game is not worth the candle? I would like my jacket and trousers to be reimbursed (700 €, I have the bill for the jacket of 645 €) and 800 € for moral damage (I came back from the hospital in undress… on foot) and physical. I don’t think that’s too much to ask. And if I can share my feeling with you: the two insurance companies are passing responsibility, because the car that hit me had the windshield broken plus the bonnet depressed… and I am the turkey of the farce .
Except in exceptional cases, pedestrians who are victims of traffic accidents are systematically compensated for their bodily injury.
As you mention, traffic accident victims have a “right to compensation” on the basis of law no. 85-677 of July 5, 1985 (articles 1 to 6). To qualify, the accident must meet certain criteria:
– It must be a traffic accident, on a road open to public traffic. Jurisprudence has extended this criterion to private roads or roads closed to public traffic.
– The accident must have been caused by a land motor vehicle.
– The motorized land vehicle must be involved in the accident: must hit the victim or have played a role in the accident (surprise, stop on a pedestrian crossing, etc.).
Once these conditions have been met, the driver of a vehicle involved cannot invoke a case of force majeure, such as the behavior of the pedestrian.
However, for their material damage (clothing, prosthesis, etc.), pedestrians are treated like other victims, drivers or not: the fault they committed when the accident occurred may lead to the reduction or exclusion from their compensation. .
For bodily injury, pedestrians can only be opposed to inexcusable fault, the sole cause of the accident. Jurisprudence describes inexcusable fault as intentional fault of exceptional gravity, exposing its perpetrator without valid reason to a danger of which he should have been aware. Inexcusable fault is therefore rarely accepted by the courts. Recklessness does not constitute an inexcusable fault.
All these legal rules should allow you to obtain compensation for your bodily injury in full and for your material damage in whole or in part.
Regarding your bodily injury, know that the ITT is in no way linked to the fact that you are not working. In fact, the ITT is a purely penal concept which serves to criminally qualify the facts according to the duration during which a victim experiences significant discomfort in the acts of everyday life (eating, sleeping, washing, dressing, shopping, getting around, going to work, etc.). You tell me that you have suffered a traumatic brain injury. A priori, it seems curious to me that the doctor did not grant you an ITT. However, to have an exact evaluation of the damage, the ITT must be determined, either by a medical examiner or by an expert. Your insurer should have sent you for such an expertise. The fact that you are unemployed, at the RSA, absolutely does not prevent you from benefiting from an ITT.
Regarding your insurer, you should check what exactly your contract includes. Often the contracts for legal assistance and legal protection are different. However, you tell me that the lawyer’s fees are covered by your insurance contract. In this case, be aware that the insurer cannot impose a dedicated lawyer on you. You remain free to choose your lawyer and to ask the insurer to pay his fees within the limit of the ceiling provided for in the contract.
Regarding the different compensation procedures, the course is significantly different if the driver has committed an offense and if he is brought to justice or if he has not committed an offense and it is not a a civil procedure.
In all cases, if the driver and his insurer do not compensate you satisfactorily, you have the possibility of seizing the court for a claim for compensation for your damage.