When the injured person contributes to the production of a road accident or to the aggravation of the injury, the compensation may be reduced. The rule applies based on proven facts and the link between the victim’s behavior and the injury; the mere allegation of a deviation does not automatically establish a percentage of fault.
What is the victim's concurrent fault?
Article 1.371, paragraph (1) of the Civil Code regulates the situation where the victim, intentionally or through negligence, contributes to causing or increasing the damage or fails to avoid it, although he/she could have. The person summoned to answer owes the part of the damage he/she caused. For the application of the rule, the culpable conduct and its role in the production or aggravation of the damage count; it is not necessary that the victim himself/herself committed an unlawful act.
By Decision No. 12/2016, the High Court interpreted Article 1.371, paragraph (1), in the context of resolving the civil action in the criminal process. The decision explains that the victim’s guilt and her contribution to the causal chain are examined, without requiring her to commit an unlawful act of her own. However, the concrete application depends on the circumstances and evidence of each accident.
Special rule for accidents with RCAs
Article 13 of Law No. 132/2017 explicitly establishes the rule of common fault in the field of motor vehicle liability insurance. If the injured person contributed culpably to the accident or to the increase of the damage, the liability is limited to the part attributable to the person called upon to respond. The extent of each person’s contribution is determined by any means of evidence.
If it is not possible to determine how much each person contributed, Article 13(2) provides for the establishment of liability in equal shares, based on the number of parties involved. In this situation, a percentage allocation chosen without evidence of evidence is not applicable. The RCD Law separately provides for the lack of compensation from the insurer in the event of the exclusive fault of the injured person.
What needs to be analyzed and proven
The assessment is made based on the dynamics of the accident and the concrete effect of the conduct invoked. The minutes of the proceedings, the sketch and photographs of the accident, the video recordings, the statements of the witnesses, technical expertises and medical documents may be relevant. For conduct that would have aggravated the injuries, it must be analyzed whether and to what extent it influenced the damage, distinct from the initial cause of the accident.
For example, the driving behavior of the victim may be relevant if the evidence shows that they actually contributed to the impact. In other cases, the behavior may only relate to the extent of the injuries. The existence of a contravention or an irregularity does not in itself prove that it caused the accident or increased the damage, and does not automatically lead to a reduction in the compensation.
How the common fault is reflected in compensation
The compensation relates to the proven damage and the part of the liability retained after the evaluation of the evidence. The RCD law also establishes the maximum limit of the insurer’s liability: the higher value between the limit provided by the applicable legislation and that stipulated in the RCD contract. The insurance limit and the division of liability are separate issues, and any claims that exceed the insurer’s obligation must be analyzed separately according to the law and the specific situation; they do not automatically fall to the driver just because there is joint fault.
Therefore, the injured person can challenge a reduction that does not explain the evidence, the causal link and the calculation method of the contribution. In a specific case, the accident documents, the conclusions of the expert reports, the extent of the damage and the legal basis of the insurer’s decision must be examined.
The reference texts are Civil Code, Art. 1.371, Law no. 132/2017, articles 12–14 and Decision of the Supreme Court of Cassation no. 12/2016.
