According to the recent data, Bulgaria is one of the countries in Europe with the highest concentration of traffic accidents per capita. Through this article we will try to explain the essential rights of the injured in traffic accidents in Bulgaria and to give them practical advice and instructions for obtaining of fair compensation for the damages suffered, including but not limited to the experienced pain and suffering.

Who is entitled to be compensated for a traffic accident in Bulgaria?

The injured persons are entitled to be compensated in the event of a traffic accident in Bulgaria. These are the passengers, pedestrians and other participants in the traffic, excluding the guilty driver.

What is compensated?

Compensation is paid for all material and immaterial damages, which are a direct and immediate consequence of the traffic accident. The group of the immaterial damages includ all negative consequences - pain and suffering experienced in connection with the occurred injuries, while the material damages include all the costs, borne by the person with regard to the accident – surgery costs, hospitalization costs, costs for medicines, rehabilitation, repair of the car damages etc.

An obligatory prerequisite during the compensation procedure is the causal connection between the damages and the occurred accident - i.e. the injuries to be resulted from this traffic accident, the negative health consequences to be a result of the injuries in this accident, (a lack of consequence between them and previous illnesses), the costs for medicines to be borne with regard to the treatment of these injuries etc.

Who owes a compensation?

The general principle is that each individual should be compensated for the damages suffered as a result of the unlawful acts of other persons, so-called "tort" (Article 45 of the Act on Obligations and Contracts). Therefore, in the event of a traffic accident, the injured persons are first and foremost entitled to be compensated for the incurred damages by the guilty driver. The latter is ineffective, inappropriate and impractical, insofar there are no guarantees for the solvency of the guilty driver.

Therefore, in more than 95% of the cases, the injured persons file their claims against the insurer under the mandatory civil liability insurance of the guilty driver. The reason for this is that the solvency of insurance companies is almost 100 percent guaranteed. According to Article 493, paragraph 1 of the Bulgarian Insurance Code: "The insurer on the compulsory civil liability insurance shall cover the liability of the insured person about the caused damage to third persons (including pedestrians, bicycle riders and other participants in the traffic of the roads), as a result of possession or use of motor vehicle during traffic or stay."

In some rare cases, а compensation is also owed by the Bulgarian Guarantee Fund. These are such cases where the traffic accident was caused by a motor vehicle, which does not possess a valid civil liability insurance policy and/or the guilty driver escaped from the accident and could not be identified later.

Establishment and investigation of the traffic accident

Immediately after the traffic accident occurs, it is visited by the investigation authorities. They issue a sketch, a protocol for the inspection of the accident site and a photo album. An Accident Assessment Protocol is also issued, where the guilty driver and the injured persons are listed.

Practical advice: Immediately claim from the Bulgarian traffic police officers to provide you with the required copy of the protocol. The latter is an official document, which proves the occurrence of the insurance event, as well as the participation of the listed parties and the existence/the non-existence of a valid civil liability insurance policy of the guilty driver. If you are not listed as an injured person within the protocol, immediately claim the amendment of the latter by the traffic police authorities.

The next step is the preparation of a technical expertise, which purpose is to determine the mechanism for the occurrence of the traffic accident and to answer the questions of who is guilty for the occurrence of the traffic accident, as well as the preparation of a medical expertise, which shall provide answers the questions what kind of injuries are suffered, what is the expected recovery period and if there is a causal connection between these injuries and the specific traffic accident.

Practical advice: Constitute yourself as an injured person during the preliminary investigation proceedings. Participate actively at the investigation phase by asking questions to the experts, which question shall be included in the report. Usually the outcome of the whole process depends, including the civil case for obtaining of insurance compensation, on the evidence, collected during the preliminary proceedings.

If the medical expertise finds out that at least one average physical injury according to the Penal code has been inflicted on a person as a result of the traffic accident, an indictment act will be brought against the guilty driver and the latter being held liable as a defendant. In general, the injured party could claim at any time the guilty driver to be not brought to criminal liability and the criminal proceedings to be terminated. If not, then follows the court phase of the proceedings. This phase most often ends with a settlement between the prosecutor and the defendant or with the exemption of the defendant from criminal liability and the imposition of an administrative penalty (in accordance with Art. 78a of the Criminal Code) - fine, usually accompanied by driving license withdrawal for a certain time.

Pursuant to Ar. 300 of the Bulgarian Civil Procedural Code (CPC), the judgment of the Criminal Court (or equivalent rulings of the Criminal Court for approval of settlements between the Public Prosecution and the defendant and/or court decisions under Art 78a of the Criminal Code for exemption of criminal liability and the imposition of an administrative penalty), is binding for the civil court during the proceedings for receiving of insurance compensation, with regard to the circumstances that the traffic accident has occurred, as well as that the defendant is the guilty for the occurrence of the latter. In other words, the injured person shall not prove the mechanism of the accident, incl. the fault of the car driver, whose civil liability insurance is concluded with the defending insurance company. The claimant shall submit evidence just for the damages suffered.

Claim against the insurer

During the effect of the repealed Insurance Code, the injured persons had the possibility to claim an insurance compensation direct in a court proceeding, without being obliged to submit a claim for a voluntary payment before the insurance company. After the entering into force of the new Insurance Code (as of 01/01/2016), the injured persons were deprived of this right and now they shall first submit their claim before the insurer, having attached all relevant documents (including all medical documents related to hospitalization, the treatment, the recovery process etc.) as well as a bank account, where the determined insurance compensation to be eventually paid. The insurer shall take a decision within a 3-month period whether to pay an insurance compensation or to refuse paying it. Upon the expiration of this 3-month period, the injured persons, who have not been paid any insurance compensation and/or their claims have not been fully granted, are entitled to claim such insurance compensation before the civil court, together with the statutory interest as of the moment, when the payment of the compensation became due.

Preparation of the claim and the court proceeding for receiving of insurance compensation

The claim, which initiates the court proceedings, shall be accompanied by all documents, proving the right of the injured person to receive insurance compensation, as well as proving the amount of the insurance compensation.
These documents could be divided into 3 groups:

Documents related to the insurance event:

- These include:
the accident investigation report, the report from the investigation of the place of the accident, the sketch and the photo album from the place of the accident, the minutes from the interrogation of the witnesses in the criminal phase, the vehicle technical report, the ruling for the termination of the investigation procedures, the judgment/court decision/court ruling.

- Medical documents:
Hospitalization reports, surgery reports, x-rays, ambulatory reports, medical recommendations for further treatments, medical examination reports, prescriptions, rehab reports, expert assessments of the labor abilities, medical expertises from the investigation proceedings etc.

Practical advice: The reports of the court experts are based on the submitted medical documents during the proceedings. The more medical documents the injured person has submitted, the greater his or her chances are of proving all the negative consequences that have occurred. Therefore, you have to collect medical documents as much as possible - if you visit a specialist with regard to complaints, following the traffic accident, ask him to issue a document for it. In this document it shall be explicitly stated, that you have suffered a traffic accident and that your complaints are a consequence of it.

- Documents for the costs incurred:
Invoices and payment receipts, related to the hospitalization costs, specialized transport to and from the hospital, purchase of fixation implants (nails, needles and other fixation implants, operatively placed in case of established fractures), costs for payment of rehab procedures, costs for purchase of medicines, medical tools (i.e. crutches) etc.

During the court procedure the injured person shall prove the following facts and circumstances:

• the guilty for the occurrence of the traffic accident of the person – the latter could by achieved either in accordance with Art. 300 of the CPC by using the entered into force judgment of the criminal court (or an equivalent court act), or by a vehicle technical report, where the expert shall provide answers how the traffic accident has occurred and who is guilty for its occurrence.
• the occurrence of the injuries stated, as well as their causal connection to the traffic accident - this could achieved through: (i) a medical expertise, where the expert provides answers to the questions, related to the injuries suffered, that these injuries have resulted from the traffic accident, answers concerning the duration of the recovery process, as well as the complications in the recovery process occurred or expected and (ii) through interrogation of witnesses - your friends, acquaintances or relatives (which is not recommended, but also possible), who shall answer to questions related to the pain and the suffering, which you have experienced as a result of the injuries from the traffic accident.
• the existence of a valid civil liability insurance of the guilty driver with the insurance company at the time of the accident – this could be proved through the official traffic accident report and/or through a check from the database of the Guarantee Fund, which contains information about the insurance policies of all registered motor vehicles.

"Fair Compensation"

The Bulgarian court adjudges an equitable compensation for non-material damages (Article 52 of the Act on Obligations and Contracts). In other words, there are no specific levels of compensation for each type of injury. According to the applicable court practice (Supreme Court Decree № 4/23.12.1968.) "The court's assessment shall be based on all the circumstances, which are relevant to the amount of the damage, namely the estimation of numerous relevant objective circumstances such as the type of the injury, the way of its occurrence, the circumstances during its occurrence, the additional worsening of the health status of the injured person, the moral pain caused, the cripplings, disfigurements etc."

Practical advice: Submit your claims before the court’s in the city of Sofia, where the seats of the insurance companies are located. From a statistical point of view it is more likely, that you will receive higher compensation for similar damages from the courts in the city of Sofia, than from the courts, where the damage has been occurred and/or is your address.

Objection for contribution of the injurious result

In almost 100 per cent of the cases the insurance companies insert the so-called "objection for contribution of the injurious result" by the injured person, in order to try reducing the amount of the insurance compensation. In order such contribution to exist, the insurer shall prove, that the injured person should have contributed by his unlawful actions for the occurrence of larger injurious result. Most often, the contribution objection is materialized in a contestation, that the injured has not put his seat belt correctly before the accident. Another type of contribution would have been if the injured person got into a vehicle, driven by drunk and/or incapable driver, being aware of the fact, that the driver is drunk and/or incapable.

Not every unlawful conduct shall be considered by the court as a contribution of the injurious result. In order for this to happen, the insurer shall prove, that the damage wouldn’t have occurred or would have been limited, if the injured person had put his seat belt correctly or the insurer shall prove, that the injured person had known knew about the driver's incapability or alcohol consumption. In any case, the burden of proof for these facts is left entirely upon the insurer.

Practical advice: In many cases, the doctors primarily focus on the serious injuries (fractures, bleedings etc.) and omit to describe in their medical reports the presence of abrasions on the chest and abdomen of the injured as a result of the seatbelt being fastened during the accident. This omission is a prerequisite for the expert to give a negative answer to the insurer's question during the civil proceedings as to whether or not there is proper information, that the injured had put his seatbelt correctly before the accident. The latter could lead to a reduction of the insurance compensation by up to 50%. Therefore, you should ask the doctors to describe within the medical reports all of your physical injuries, including injuries from wearing a seatbelt.

The author of this article, Mr. Petar Kulenski is an attorney-at-law in Law Firm “Ruskov and Colleagues”.