1. Actions to take
immediately after road traffic accidents
If death or injury
occurs in a road accident, the police must be alerted, tel. 101. All parties
involved must remain at the scene of the accident until the police arrive. If
the police do not respond, the accident must be reported within 24 hours at the
police station closest to the scene of the accident or at the police station
where you live. All the necessary information pertaining to the parties involved
in the accident must be submitted at that time. In Belgium, it is compulsory for
everyone over the age of 15 to carry identification.
If
the police are not called to the site of the accident, for example, when the
accident involves material damage only, you are strongly advised to use the
European Claim Form which can be obtained from your insurance company. It is
important that both parties involved in the accident sign the form because the
form is normally used as evidence. It is also important to take down the names
and addresses of any witnesses as well as to give information on the facts of
the accident. It is also advisable to take a photograph of the scene of the
accident.
NB: Do
not sign the European Claim Form if you do not understand the content!
The same applies to other statements on who is to blame for the accident. You
should not sign the form if there are differences of opinion on the facts of the
accident. In such a case it is advisable to contact the police, even if the
accident only involves damage to property.
2. Legal procedure
Article 1382 of the Belgian
Civil Code and the articles following apply to road traffic accidents. Belgium
has no separate traffic legislation. Liability for traffic accidents is based on
fault. Different rules apply to pedestrians, cyclists and motor vehicle
passengers (excluding the driver). All personal injury and damages incurred by
the death of victims are compensated, regardless of who was at fault, pursuant
to article 29bis of the Motor
Vehicle Insurance Code (WAM).
The obligation to pay compensation lies with the insurer or the guarantee fund (waarborgfonds).
Criminal proceedings
When the person responsible
for the accident is prosecuted, the victim can submit a claim for damages in the
same proceedings: a plaintif
claiming damage (Constitution de partie civile). The motor vehicle insurer may
be involved in the claim.
Such cases are dealt with in
the police court and the injured party is given the opportunity to submit a
petition for action for damages. The injured party is informed of the time and
place of the hearing and this notification can be considered the equivalent of a
summons. The injured party and other plaintiffs may choose to be represented by
legal counsel. The person responsible for the accident also has this option.
However, he must appear in person at the hearing if he is being prosecuted for
causing accidental death or if the accident resulted in death or injury,
and if he is accused of fleeing the scene of a crime, and/or driving
under the influence of alcohol or illegal substances.
Any judicial inquiry conducted
is confidential. The parties involved do not have access to the police reports
and witness statements until the inquiry has been concluded. In some instances,
access is given to certain documents in the file. The victim has the option of
requesting that an inquiry be conducted into adventitious acts (e.g. expertise).
Civil proceedings
The injured party can also
submit a civil action in the police court. However, the court is bound by any
sentence imposed on the defendant in criminal proceedings. The motor vehicle
insurer may be involved in the civil action.
If the parties involved
are both residents of Belgium, and are both insured with Belgian insurers, the
claim will probably be settled on the basis of an agreement between the insurers
concerned. Such agreements do not apply to foreigners. The agreements between
the insurers are only binding on the insurance companies themselves and do not
apply to the insured.
3. Compensation for
damages/time limits
The period of limitations for
claims arising from traffic accidents is 5 years from the date of the accident.
The general period of limitations is 30 years, and this also applies when the
judgement of the court includes a reserve for damages that may be incurred later
and therefore could have an impact on the amount of the claim and the pay out.
4. Damages to be
compensated
Claims may be submitted for material damage, personal injury
and for damages for pain and suffering. Loss of capacity to work is considered
material damage. Such a loss is determined on the basis of the degree of
permanent impairment regardless of the negative impact on income. If this
negative impact can be proven, compensation will be paid for this as well. If
the injured party was a vulnerable road user – cyclist, pedestrian or car
passenger – the loss of capacity to work and loss of income will be considered
to be personal injury in respect of the automatic entitlement to compensation.
A large circle of people qualifies for compensation for
damages arising from the death of or injury to the victim. Any person who can
prove his loss, for example the employer for loss of work, is entitled to submit
a claim.
Compensation is paid for funeral expenses . No compensation applies to legal aid
nor to the costs of experts unless they are appointed by the court. The losing
party is obliged to pay such costs. The courts do however have the tendency to
pay compensation for amicable expert costs.
In Belgium, a list has been
drawn up by the courts stating amounts for compensation for claims arising from
traffic accidents. This list is, however, only intended as a guideline for
claims that are difficult to estimate.
Surviving dependents are
entitled to damages for pain and suffering. In accordance with Belgian law, the
term ‘surviving dependents’ encompasses not only the spouse, children and
parents of the victim, but also further-removed relatives: grandparents,
grandchildren, brothers and sisters, fiancé(e)s,
and, in special cases, the life partner of the victim (to whom the victim was
not married).
5. Accidents abroad
With effect from 20 January
2003, the 4th Motor Insurance Directive has been in force regarding
traffic accidents outside your own country. Victims of traffic accidents can now
claim compensation in a simple manner from the insurer of the party at fault.
Such claims are submitted to the representative of the foreign insurer in the
country of the victim: the claims representative. Addresses of claims
representatives are available from the Information Centre. The centre can also
provide information on the compensation body that will make payment if the
insurer fails to designate a claims representative or does not respond to a
victim’s claim.
You can find additional
information on this procedure at this website.
6. Useful addresses
Police: 101 or 112, ambulance:
100 or 112, fire brigade: 100 or 112.
FEVR member organisations: