According to Transport Administration statistics, there were 1,730 road accidents in 2023, with 1,949 injuries and 59 fatalities.1 The statistics for the last five years (2019 – 2023) are alarming – the number of road accidents and injuries in them has been steadily increasing. Almost every road accident results in direct harm to others – either material or moral. The Constitution clearly states that everyone is entitled to compensation for intangible as well as tangible harm that he or she has suffered because of the unlawful actions of any person.2 In the light of this principle enshrined in the Constitution, on the basis the Law of Obligations Act was created the institution of liability of the driver of a motor vehicle as a source of increased danger3, which provides for increased liability of the driver of a vehicle for the damage caused. In other words, the driver of a motor vehicle is inevitably obliged to compensate the damage caused to another person (persons), if in the course of operation of the vehicle a risk specific to the vehicle is realised (vehicle collision with a person, collision with another vehicle, etc.). It is important to note that in this case the liability for the damage caused does not depend on the fault of the driver of the motor vehicle, i.e. the driver of the motor vehicle must compensate damage caused in full. An essential note is that electric scooters are also considered motor vehicles4, which means that people injured in a collision involving electric scooters have the same rights as those injured in a collision involving a car.
The liability of the driver of a motor vehicle for damage shall be excluded if the damage is caused to a thing being transported by the motor vehicle and which is not being worn or carried by a person in the vehicle; the damage is caused to a thing deposited with the driver of the motor vehicle; the damage is caused by force majeure or by an intentional act on the part of the victim, unless the damage is caused upon the operation of aircraft; the victim participates in the operation of the motor vehicle; the victim is carried without charge and outside the economic activities of the carrier. In other words, the driver of the vehicle is not obliged to compensate damage caused by force majeure, i.e. circumstances that the owner of the vehicle could not have foreseen or overcome at the time of its occurrence (e.g., a particularly strong gust of wind that steered the vehicle in the wrong direction); when the victim themself contributed to the damage (e.g., a pedestrian jumped out in front of the vehicle and got injured); when a passenger unexpectedly turned the steering wheel themself and steered the vehicle in the wrong direction; when the passenger travelled free of charge without using taxi services. In other words, the owner of the vehicle is obliged to pay compensation to anyone who was outside the damaging vehicle at the time of the accident and did not contribute to the damage – a pedestrian, cyclist or motorcyclist, people in another vehicle. Thus, the institution of liability of the driver of a motor vehicle as a source of increased danger under the Law of Obligations Act is quite simple, i.e. if damage has been caused and all of the above listed conditions are fulfilled, the person who caused the damage, i.e. the owner of the motor vehicle, cannot escape the obligation to compensate the damage. In the case of a road traffic accident, the Police and Border Guard Board initiates criminal proceedings, within the framework of which the injured party can file a claim against the driver of the vehicle that caused the damage – a so-called civil lawsuit – free of charge.5 The court may order the driver of the vehicle to pay compensation to the injured party, which may amount to tens of thousands of euros. Provided that the legal process will take years. However, the process of restoring justice may be stopped at the end of the road if it turns out that the driver of the vehicle does not have the means to pay compensation.
In order to avoid such situation, as well as to simplify and speed up the process of obtaining compensation, the institution of compulsory motor vehicle insurance was established in Estonia in accordance with the Motor Insurance Act.6 According to this Act, drivers of motor vehicles in circulation must have a compulsory motor vehicle insurance contract, i.e. a compulsory liability insurance contract. Motor insurance is a compulsory civil liability insurance, under which nsurer shall, in place of the policyholder, perform the obligation to compensate for damage caused by the policyholder to a third party. In this case, the insurer and the policyholder are joint obligors, i.e. a claim for damages can be filed against both of them at once. Pursuant to the Motor Insurance Act, the obligation to pay compensation for damage applies primarily to material damage (damaged vehicle, clothing, watches, etc.). In practice, there are no major problems in obtaining compensation for material damage. The victim submits to the insurer a list of damaged items and their approximate value (or, alternatively, an estimate of the cost of restoring the damaged items), the insurer conducts special proceedings, as a result of which it decides for what what and how much compensation it will pay. However, disputes often arise over compensation for non-material, or moral, damage, because in practice it is very difficult to determine its amount in monetary terms.
Pursuant to Section 32 (1) of the Motor Insurance Act, the insurer is obliged to indemnify, among other things, non-material or moral damage caused as a result of a road traffic accident. Although the sum insured (or maximum limit of indemnity) per insured event, irrespective of the number of victims, in case of death, health damage or bodily injury is EUR 5,600,0007, our usual case law does not recognise such high indemnity amounts. Section 32 (3) of the Motor Insurance Act specifies presumptive amounts of non-material damage, which depend on the severity of the victim’s health damage or bodily injury and range from EUR 100 to EUR 3,200. When reading the relevant provision of the Act, one may get the impression that these are the upper limits of compensation for damages and that the amount of compensation cannot exceed them. Although insurers operating in the Estonian market try to interpret Section 32 (3) of the Motor Insurance Act in this way, it is safe to say that this is not the case. The fact that the amount of damage may exceed the amount provided for in Article 32(3) of the Motor Insurance Act is a direct consequence of the wording of the provision, Article 25(1) of the Motor Insurance Act and the currently accepted case law. The wording of the legal provision makes it clear that the amount of damage is only an estimated amount of damage, i.e. the actual amount of damage may well be higher. When the Motor Insurance Act was introduced, instead of setting a maximum amount of compensation, the presumed amount of compensation was seen as a function of simplifying the burden of proof for the victim: the insurer is obliged to satisfy the victim’s claim within the amount specified in the Act, depending on the type of bodily injury or health damage, in which case the victim would not have to prove the amount of damage separately.8 If the victim’s claim for non-pecuniary damage exceeds the presumed amount specified in the Act, the victim must provide additional evidence and justify their position.
At present, the case law on the amount of compensation for non-pecuniary damage is heterogeneous. The average amount of compensation is around EUR 7,000.9 However, there are known cases where the victim(s) have been awarded EUR 25,00010, EUR 50,00011 and EUR 125,00012. Such high amounts of compensation for non-pecuniary damage are justified by the Supreme Court’s view that the amount of compensation for non-material damage depends, inter alia, on the general level of wealth and that even €30,000 is not an excessive compensation.13 The Supreme Court has also repeatedly emphasised that the amount of compensation for non-pecuniary damage must be determined by the court, in particular on the basis of existing case law.14 In other words, compensation for non-pecuniary damage should be the same as that awarded by the court in favour of the victim in more or less similar circumstances in previous case law. The amount of compensation should also take into account inflation and changes in the consumer price index. However, despite the case law of the Supreme Court, insurers generally limit compansations to the presumed amounts of non-pecuniary damage provided for in section 3(3) of the Motor Insurance Act. Thus, in 90% of cases where the victim remains tet-a-tet with the insurer, compensation for non-pecuniary damage will not exceed the maximum amount of €3,200 provided for in the Motor Insurance Act. Alternatively, the injured person can sue the vehicle driver in criminal proceedings, but it is likely that the injured person will never see the money awarded in their favour as the amount of the vehicle driver’s assets is critically small.15
The legislator foresaw such an unfair situation and created a mechanism that allows the victim to effectively protect their rights. Since the insurer and the insured are joint debtors under the first sentence of Article 521(1) of the Law of Obligations Act, the insurer may be brought to criminal (court) proceedings as a joint defendant under Article 39(1) and (2) of the Code of Criminal Procedure. This makes it possible to file a civil lawsuit for just compensation of moral damages against both the insurer and the policyholder. In this case, the amount of just compensation shall be determined by the court, taking into account the applicable case law. As a result of the proceedings, the court may award a higher compensation to the victim, also taking into account the Supreme Court’s position that when awarding compensation for non-pecuniary damage, the court must take into account, inter alia, the economic situation of the parties, regardless of the wishes of the parties.16 In other words, the court must take into account, inter alia, the fact that the insurer, which is a company aiming at economic profit, which has special capital and liquidity requirements and which is under constant supervision of the Financial Supervisory Authority, will be a joint defendant in the proceedings. Therefore, the payment of compensation, even in the amount of EUR 100,000, cannot be burdensome for the insurer. But one should not rely solely on the court as the guarantor of justice. The rules and norms of civil proceedings will be applied when considering the claim of the victim. Civil proceedings (as well as criminal proceedings) are adversarial in nature. It is a type of legal proceeding in which each party bears the burden of proving all the facts on which its claims and objections are based, i.e. the party itself is obliged to provide evidence, relevant legal principles, norms and examples of case law and link all this to the factual circumstances of the case. However, the court cannot interfere in this process or assist the parties. It is therefore regrettable to note that despite the existence of a mechanism for restorative justice in our legal system, ordinary people are unable to utilise it. As a result, the victims only lose their time, nerves and money, being left in the end with the amount of compensation determined in accordance with Article 32(3) of the Motor Insurance Act.
There is also a certain injustice in the fact that the state provides the suspect/defendant with a representative, i.e. an attorney at law, free of charge, as part of state aid.17 The victim, however, has no such privilege. The insurer is represented by experienced lawyers who are paid to try to reduce the amount of compansation of damages. Therefore, the injured person has no choice but to hire a lawyer/ an attorney at law at their own expense. Fortunately, however, there is a bright spot here – all the costs of action-by-claim proceedings are borne by the principal party against whom the case is decided.18 This means that if the injured party wins the case, i.e. their claim is satisfied, the insurer and the policyholder will bear all the legal costs. Given that the assistance of experienced professionals guarantees fair compensation and the fact that all legal costs will be imposed on the opposing parties, it is definitely worth contacting a lawyer to help achieve justice.
1 Transpordiamet. Liiklusõnnetuste statistika. Available: https://www.transpordiamet.ee/liiklusonnetuste-statistika
2 PS § 25
3 VÕS § 1056 and 1057
4 LS § 2 p 39, 40
5 KrMS § 38 lg 1 p 2 и KrMS § 381 lg 4
6 RT I, 11.04.2014, 1; RT I, 07.03.2023, 35
7 LkindlS § 25 lg 1
8 O-J. Luik; A. Värv. Juridica. 2021. „Mittevaralise kahju hüvitisemäärad liikluskindlustuses.“ Lk 660
9 M. Sedman. Riigikohus. 2020. Tartu. „Mittevaralise kahju hüvitamise nõuded kriminaalasjades 2018.–2020. aastal.“
10 TlnRnKo 1-15-9505
11 TrtRnKo 1-15-5273 and TlnRnKo 1-15-9505
12 TrtRnKo 1-15-5273
13 RKRKo 1-22-5835, p 38
14 RKTKo 3-2-1-1-01, p IV; RKTKo 3-2-1-51-05, p 22; RKTKo 3-2-1-34-05, p 22
15 K. Vainküla. Eesti Ekspress. 10.03.2020. „Karjuv ebaõiglus: 13 kannatanuga avarii põhjustaja on tasunud vaid 50 eurot valuraha.“ Available: https://ekspress.delfi.ee/artikkel/89152811/karjuv-ebaoiglus-13-kannatanuga-avarii-pohjustaja-on-tasunud-vaid-50-eurot-valuraha
16 RKTKo 26.06.2013, 3-2-1-18-13, p 27 и RKRKo 1-22-5835, p 30
17 KrMS § 43 lg 2
18 TsMS § 162 lg 1