Article (in Estonian): O.-J. Luik, A. Värv, "Mittevaralise kahju hüvitise määrad liikluskindlustuses" (Levels of compensation for non-pecuniary damage in motor insurance), Juridica 2021/9, pp. 658–664. Article page on Juridica (published 2021)
Co-author: Age Värv. The article continues the same authors' earlier article on who may claim.
Research question
Under § 134(2) of the Law of Obligations Act (võlaõigusseadus, VÕS), a court awards a fair sum for non-pecuniary loss in bodily injury cases, assessed on the facts using criteria developed in case law. At the time of the article, the Motor Insurance Act (liikluskindlustuse seadus, LKindlS) took a different route: § 32(3) presumed specific amounts of non-pecuniary loss according to the severity of the injury, from EUR 100 to EUR 3,200 (LKindlS § 32(3), version in force 15 March 2019 to 31 March 2022). The article analyses the legal nature of those statutory amounts and the problems that arise when compensation is set by statute rather than by judicial assessment.
Main arguments
The authors examine whether the statutory sums are a cap, a presumption or a floor, and how they relate to the fair compensation principle of the VÕS. The abstract does not set out the final conclusions in detail, so they are not repeated here.
What has changed
The legislator later resolved the question. The 2024 reform replaced the presumed amounts with minimum amounts: since 1 December 2024, LKindlS § 32 (RT I, 29.06.2024, 2) sets minimum amounts by injury severity (EUR 200 to EUR 7,000), indexed annually to the consumer price index. A higher award is available where justified (§ 32(6)), and the insurer must assess the amount having regard to, among other things, functional impairment and loss of quality of life (§ 32(7)). See the Motor Insurance Act on Riigi Teataja.