Traffic Accident, or What to Do During a Collision

Economic development is always accompanied by the development of the insurance business. Any developed economy necessarily comes with a developed insurance system. As a developing economy, we are, of course, trying to ensure this as well, but until the scale of development reaches the level it should, this activity also brings side effects. I decided to write this article because of a problem that drivers of motor vehicles face almost daily: when, as a result of a traffic accident, they do not appeal the fine administratively, and in a civil dispute, we lawyers are simply left with only one path—to argue over the amount of damages;

Any motor vehicle is subject to registration. This is due to the fact that a motor vehicle is a source of heightened danger. A source of heightened danger means simply "an object, the complete control of which is impossible due to its properties." In other words, this can also be described as "the owner of a source of danger carries more risk due to the properties of this object." Based on this, some countries even consider motor vehicle insurance mandatory (e.g., the German model; the Georgian model also recognizes mandatory insurance for certain categories, but that is an entirely different issue). Consequently, since a motor vehicle is a source of heightened danger, it is subject to registration, and both administrative and civil law norms apply to its owner;

In the Code of Administrative Offenses, Chapter X is dedicated to administrative offenses in transport, road infrastructure, and communications. This chapter contains all the articles on the basis of which a person is fined. Let us take one example: a person rear-ends another car. In such a case, the patrol police conduct an investigation into who is at fault. This is exactly where the entire process generally begins. I have not yet had a case where a diagram of the accident was presented. A diagram must definitely be drawn up by the patrol police, including: the incident itself, the trajectory, the road surface and its condition, weather, eyewitnesses, etc. But this happens in zero cases, or in most cases, they simply issue a pre-stamped decision: if the person rear-ended someone, it means they are at fault. The second important part is that body camera recordings are kept for only 30 days, and by the time of a civil dispute, they are already deleted. Therefore, during any traffic accident, a person must request: the drawing of a diagram and the recording of their conversation and eyewitnesses' statements via body cameras;

After a person is issued a fine, say based on Article 125.10 of the Code of Administrative Offenses (10. Offenses provided for by parts 6, 6², and 7-8 of this article, which resulted in slight damage to a vehicle, cargo, road, road or other structure, as well as other property or slight bodily injury to a person), the person must definitely appeal this to a higher body, i.e., the same patrol police. Because if a person does not appeal this fine, the legislator offers a presumption: "The person agreed with their action, meaning fault is already established." And fault has the following significance during all cases of this kind. For one person to compensate another for the damage caused, the following 4 conditions must exist (which is already firmly established court practice). Based on the grounds of their origin, a distinction is made between contractual and non-contractual damages. The most general and central norm for non-contractual damages is Article 992 of the Civil Code (CC), which reinforces the principle of fault-based liability and grants the victim (creditor) the right to demand compensation for damages from the obligated person. The preconditions for the application of this article are: damage, unlawfulness of the action, causal link, and fault (the so-called "general tort"):

There must be damage (this means any kind of damage; if damage does not exist, a demand for compensation cannot occur and/or arise. Additionally, the amount of damage is a crucial concept here; specifically, the volume/amount of the damage must be established from somewhere).
There must be an unlawful action (an unlawful action can be a breach or non-performance of contractual terms, as well as, for example, being blamed for an unlawful action based on Article 125.10 of the Code of Administrative Offenses, i.e., "you rear-ended another car with your car").
There must be a causal link between the resulting consequence (damage) and the unlawful action (i.e., it must be established that your collision caused the damage to the other car, and not, say, another factor).
The person causing the damage must be at fault (except in exceptional cases). As for fault, considering that the CC does not define the concepts of fault, intent, and negligence, this was also established by practice. Among the forms of fault in criminal law, intent holds the primary place... Negligence is the most common form of fault in civil law. This form of fault itself is further divided into two parts: simple negligence, when the violation does not have a substantial nature; and gross negligence, which is present when a person operates a source of heightened danger, violates traffic rules with this source of heightened danger, and creates a hazard both to another person's property and to that person's health;

The court views the subsequent issue as follows if a fine issued based on the Code of Administrative Offenses is not appealed: the person who was hit must confirm the following circumstances:
a) The one requesting compensation for damages must prove the existence/amount of the damage and the causal link between the action and the resulting consequence. That is, the person must prove that because another car hit them, that is precisely why their car was damaged, which is very easy to do.
b) While the person who hit another person with a car must prove that there is no fault in their action. The latter is excluded because, as we mentioned above, did they not fail to appeal the administrative fine issued in their name? Meaning they agreed with it? If they agreed, it means they acted with gross negligence, and their unlawful action—"colliding with someone else's car"—violated the rule established by law;

In civil law, damage implies a negative result caused by a certain impact on property or other legally protected goods. Damage is a necessary element of the composition of an offense. If there is no damage, the issue of property liability cannot arise. Damage is precisely the result of an unlawful action. It represents the result of an encroachment on a legal good. The court will definitely rely on this and point out that "If the offender did not agree with the content of the drawn-up protocol (in the part of identifying the guilty person), they could have appealed it within the established timeframe according to Article 271.1 of the Administrative Offenses Code (A resolution adopted on an administrative offense case, as well as a decision adopted during the on-site consideration of an administrative offense case according to the rule defined by Article 234¹ of this Code, may be appealed by the person against whom the resolution was issued, the victim, or the person who drew up the administrative offense protocol). There is no evidence in the case confirming the appeal of the protocol and/or the alteration/cancellation of its content." The content of Article 40.1 of the Administrative Offenses Code is also noteworthy, according to which, if an administrative offense has caused property damage to a citizen, enterprise, institution, organization, or the state, the judge, when deciding the issue of imposing a penalty for the commission of the administrative offense, is obliged to simultaneously impose on the offender the obligation to compensate the inflicted property damage;

Accordingly, if a person is hit by another person, and this person is recognized as an administrative offender, if this person does not appeal, it is more than presumed—it is proven—that the said offense occurred precisely through their fault. It is also noteworthy that if the offender does not voluntarily compensate for the damage, the insurance company does the following: takes the car to a service center, a so-called invoice is drawn up, and subsequently, the insurance company will pay this directly to the service center (whether they give it to the person is another issue). The main thing is that if the insurance company has an invoice and a payment receipt, in such a case, it compensates for the damage, and the insurance company then turns to the person who did not appeal the administrative offense by way of subrogation (recourse);

Here, quite important issues arise, such as: how long it took to bring the car to the service center, what condition the car was in, what was described in the report drawn up by the patrol police during the incident, which damages are external and which are hidden, etc. All this is a matter for investigation, as well as whether used or original parts are bought for the car, what package the insured uses, etc. However, perhaps the most inappropriate standard today is that no expert examination is conducted; accordingly, the transfer of funds is carried out solely based on an invoice, not an appraisal. An invoice is nothing more than an offer that does not have the same level of reliability as an expert examination might have, but the court does not demand this standard (as for the fate of the replaced parts, whose property they are is a completely different, quite interesting, and unresearched issue);

Examination of evidence in court; evaluation of evidence. The circumstances that substantiate the claim and the factual circumstances of the lawsuit, the denial of the factual circumstances of the lawsuit and the claim by the opposing party, as well as circumstances significant for the substantial resolution of the case, require proof (Decision of the Supreme Court of Georgia, February 24, 2017, Case No. as-1206-1166-2016). Furthermore, although failure to appeal an administrative fine is not considered a proven fact of fault, it changes the burden of proof, and it is precisely the fined person who bears the obligation to prove that they are not "guilty"; whereas, in the case of a fine that has entered into legal force, this is impossible even on a theoretical level;