The SC Grand Chamber Determined the Conditions of Liability for Damage Caused to a Passenger or a Pedestrian as a Result of a Collision of Several Vehicles

As a result of the collision of two cars, a traffic accident occurred. One of the passengers of the car, the driver of which did not cause the accident, was injured. The insurance company partially reimbursed the victim for the costs of treatment and moral damage. However, the victim believed that the compensation received was insufficient. Therefore, she filed a lawsuit against the person responsible for the accident (the insurant) and his insurance company (the insurer). She asked the court to recover from the insurant the reimbursement of expenses associated with treatment, and moral damage, and from the insurer - compensation for the entrepreneur's lost income and moral damage, taking into account the received insurance compensation.

The courts of previous instances held that the liability for the damage caused to the plaintiff should be borne by the culprit of the accident and his insurer, rather than by both owners of the collided cars, and partially satisfied the claim. Believing that they had incorrectly determined the amount of the compensation awarded, the plaintiff filed a cassation complaint. The insurer also filed a cassation complaint, because the recovered compensation exceeded the sum insured. He also believed that the courts should have apportioned liability between both drivers, rather than placing the responsibility of paying full compensation on one of them and his insurance company.

In this case, the Grand Chamber of the Supreme Court answered, in particular, the following questions: 1) under what conditions are the owners (proprietors) of such vehicles liable for damage caused to a passenger as a result of a collision of several vehicles, regardless of their fault? 2) how to determine the amount of compensation for property damage caused to a natural person-entrepreneur in connection with the temporary loss of his ability to work?

According to the results of the case consideration, the Grand Chamber of the Supreme Court partially satisfied the cassation complaints of the plaintiff and the insurer: the judgments of the previous courts were cancelled and a new decision was made to partially satisfy the claim, taking into account the difference in the scope of responsibility of the defendants.

If, as a result of the interaction of sources of increased danger, harm was caused to other persons, the persons who jointly caused the harm are obliged to compensate for it, regardless of their fault (part 2 of Art. 1188 of the Civil Code of Ukraine).

In case several persons are responsible for causing indivisible damage through interrelated, combined actions, the amount of insurance compensation (regulatory payment) for each of such persons is determined by dividing the amount of damage caused by the number of such persons (para. 36.3 of Art. 36 of the Law of Ukraine On Mandatory Civil and Legal Liability Insurance for Motor Vehicles Owners).

These provisions are applicable when several persons have caused harm by common wrongful acts or omissions. Then the guilt of each of them in causing the damage does not matter. They are obliged to compensate the latter, regardless of guilt.

According to Art. 541, 543, part 1 of Art. 544, part 1 of Art. 1190 of the Civil Code of Ukraine, in case the victim of the interaction of sources of increased danger which was the result of illegal acts or inaction of the owners (proprietors) of, for example, vehicles, declares a claim for compensation for indivisible damage (such as damage to health, moral damage) by one of such owners (proprietors), and he compensates this damage in full, the victim will receive the right of counterclaim to other owners (proprietors) in the corresponding share.

According to the content of para. 36.3 of Art. 36 of the Law, the shares of the insurants (their insurers or the Motor (Transport) Insurance Bureau of Ukraine (MTIBU)) responsible for causing indivisible harm are equal.

Part 1 of Art. 614 of the Civil Code of Ukraine states that guilt, as a ground for liability for violation of an obligation, is the failure of a person to take all measures dependent on him to properly fulfill the obligation, in particular, to prevent harm. Given this, the prescription of part 2 of Art. 1188 of the Civil Code of Ukraine is applicable when the behavior of each of the owners (proprietors), for example, of vehicles (that, as a result of the interaction of sources of increased danger, caused damage to a third party) was unlawful (in particular, if each of them violated the rules of road safety or transport operation in connection with which the specified interaction occurred and harm was caused to a third party). Establishing the unlawfulness of the actions of each of these owners (proprietors) is sufficient for imposing on them a joint obligation to compensate third parties for harm caused as a result of the interaction of sources of increased danger. Such an obligation does not depend on the fault of the persons who jointly caused damage by unlawful actions.

According to part 2 of Art. 1188 of the Civil Code of Ukraine, any third party is another person who was caused damage in the result of interaction of sources of increased danger by the owners (proprietors), for example, of vehicles. It may be, in particular, a pedestrian or a passenger of the vehicle, from a collision with which another vehicle was damaged. The person other than the one who caused the damage may also be the owner of the vehicle, who transferred the right to drive, while he himself was a passenger.

Taking into account these findings, the Grand Chamber of the Supreme Court specified the conclusions on the application of this provision formulated in the resolutions of the Criminal Cassation Court within the Supreme Court of July 2, 2019 No. 689/1388/16-к and of the Civil Cassation Court within the Supreme Court of December 3, 2018 in case No. 715/1586/17.

The amount of income of a natural person-entrepreneur lost by an individual as a result of mutilation or other damage to health, subject to compensation, is determined from his annual income received in the previous financial year, divided by twelve. If the person has earned an income of less than twelve months, his loss of income is calculated by determining the total amount of income for the corresponding number of months (part 1 of Art. 1198 of the Civil Code of Ukraine).

In connection with temporary disability, the victims are compensated for unearned income for the time of disability confirmed by the relevant healthcare institution. The income of the victim is assessed in the following amounts: for a self-employed person - unearned income, calculated as the difference between the income for the previous (before the road accident) calendar year and the income received in the calendar year when the person was temporarily disabled. If a person was in the specified status for less than the specified estimated periods, then the average monthly income is taken into account based on the total income of such a person for the previous calendar year before the occurrence of the insured event and income during the actual period (full months) of the person's stay in the specified status (para. 1 and 3, parts 1 and 2, Art. 25 of the Law).

Therefore, according to the Civil Code of Ukraine, the amount of lost income of a natural person-entrepreneur must be determined by multiplying the average monthly income for the previous year before the one in which the health was damaged by the number of months in which there was no such income due to temporary disability. In contrast, according to the Law, the entrepreneur's unearned income during the period of disability should be calculated as the difference between the total income for the previous calendar year and the income received in the calendar year when this person was temporarily disabled.

The conflict between the provisions of para. 1 and 3 of part 1 of Art. 25 of the Law and part 1 of Art. 1198 of the Civil Code of Ukraine should be decided in favour of the application of the provisions of Art. 1198 of the Civil Code of Ukraine. In view of this, the Grand Chamber of the Supreme Court departed from the conclusion set forth in the resolutions of the Civil Cassation Court within the Supreme Court dated July 11, 2018 in case No. 335/13421/15-ц and dated May 22, 2019 in case No. 201/10980/16-ц, on the resolution of the conflict between the provisions of Art. 1198 of the Civil Code of Ukraine and Art. 25 of the Law in favour of the latter.

The resolution of the Grand Chamber of the Supreme Court in case No. 477/874/19 (proceedings No. 14-24цс21) - https://reyestr.court.gov.ua/Review/106264704.

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