2020: Personal Injury Compensation in Bosnia and Herzegovina

Personal injury compensation in Bosnia and Herzegovina is very complex due to the very complex state organization. The domain of damage may vary with time, especially when it comes to health impairment consequence from a criminal action. In some situation it is however necessary for the damage to have a permanent character (for example, long-term fear). In addition, the Law of Obligatory Relations does not guarantee damage compensation for the violation of the physical integrity, decrease of the ability to work and live to full capacity, violation or mutilation or harmed reputation or restricted freedom as such, personal goods and personality rights but compensation for lost earnings that is suffered mental anguish. Consequences of such an attitude influence the realization of rights of people who do not have earnings at the time of injury (children, students), as well as calculating the period of the statute of limitations.

It is quite clear, from the contents of Article 155 of the Law of Obligatory Relations that the notion „damage“ includes both material (property) and non-material (non-property) damage. Each of them may take effect as the existing but also as future damage. Material (property) damage may appear as the real, common, positive or existing (damnum emergens), damage that decreases another’s property either in the form of lost profit, that is future or negative damage (lucrum cessans). Material damage commonly causes the loss of thing’s usage (damaged or destroyed) and may have an additional indirect consequence in the form of lost profit Lost profit is the benefit, which would have probably been realized by the claimant if it had not been for an adverse action.  The Law of Obligatory Relations regulates the right to material damage compensation in several provisions, for example in Articles 193 through 195 and Article 198.

Compensation for material damage from bodily injuries and health impairments

A person that suffers bodily injury or health problems due to a traffic accident is entitled to claim compensation for the following: medical treatment costs for the inflicted injury and other necessary costs pertaining to the treatment; lost profit/earnings during his temporary incapacity to work, for the duration of his treatment and sick leave[1]; lost profit/earnings in case of partial or complete incapacity to work; suffered mental pain; suffered physical pain; suffered mental pain for the decreased activities of daily living; suffered mental pain caused by experienced and future fear.

[1] In case of permanent incapacity to work, compensation shall be awarded in the form of periodical payments (pecuniary compensation payable in installments)

Personal injury compensation for Costs of the Medical Treatment

A person, who has suffered a severe bodily injury and/or health impairment, due to an adverse action, is entitled to compensation for all costs incurred by bettering his impaired health. Damage caused in the form of the incurred expenditures on the account of the medical treatment represents the real that is common (existing) damage. Accordingly, the amount of the accompanying compensation may be clearly defined only when adverse consequences will have taken full effect on the claimant’s health and when it becomes clear that it is the suffered injury that led to either permanent or only temporary health impairment.

Personal injury compensation – Pursuant to Article 195, Paragraph 1 of the Law of Obligatory Relations, the person who has suffered damage or had his health impaired may seek compensation from a liable person, to cover for the following types of material damage: medical treatment costs and other costs pertaining to the treatment of the suffered injury.

Medical treatment costs refer to material expenses on the account of the treatment of the injured person in a medical institution including expenses of the applied treatment and medications. As the judicial practice stands, medical treatment costs are covered up to the amount of real medical costs, where the claimant is entitled to compensation for the medical treatment costs, although they are not paid to a medical institution, providing that the medical institution issues an invoice for its services[1].

A liable person is obligated to cover other necessary costs pertaining to the medical treatment (Article 193, Paragraph 2 and Article 195, Paragraph 1 of the Law of Obligatory Relations). Those are all those costs, which contribute to a more successful and efficient treatment such as the following: rehabilitation costs and spa recovery cost; supply of medical and orthopedic aids; transportation of the injured to get the medical examination and treatment; accompanying party (if the injured requires another’s assistance during the treatment, when walking); hospital visits by family members; other necessary costs (enriched nutrition of the injured, massage, rearrangement of the means of transportation, adaptation of the apartment and alike).

However, the following decision may be found in the judicial practice „The claimant shall not be entitled to the compensation of rehabilitation costs, if the rehabilitation does no good to his health condition.“[1]

I cannot agree with this attitude because it is in a man’s nature to hope for healing, to „fight“ for his health and he should not be deprived of the hope of the complete recovery, which is exactly what this decision does, where hope is the only thing left to a claimant after an adverse accident. The claimant is also entitled to the compensation of costs incurred for the production of artificial limbs or medical aids. In that case, not only necessary but also useful costs shall be recognized. If the production costs referring to an artificial limb creation were connected with costs of the necessary stay in a foreign country, their justification would be assessed in each individual case.

The judicial practice also recognizes some additional costs pertaining to the medical treatment and the injured person’s recovery. Those are primarily costs of transport of the injured to the closest medical doctor (referring also to check ups that would follow), as well as costs of the accompanying person, if the injured was unable to walk alone. The genuine right of the injured is the right to compensation for visits of close family members for the duration of his hospital stay. This right is particularly recognized if the injured person is still a child and the term „close person“ refers to members of the insuree’s household. The consequence of the suffered bodily injury or health impairment may be increased needs of the injured: specific requests as regards nutrition, care or another’s domestic help.

Personal injury compensation for expenses incurred for the necessary another’s care and assistance shall be recognized unless it has been proved that the injured can take care of himself without another’s assistance or domestic help. „The injured person is entitled to another’s care and assistance, if such care and assistance are indispensable to him due to the suffered injury. If a household member provides the mentioned care and assistance during the period of the injured person’s medical treatment, he is entitled to compensation only if the household member lost his earnings elsewhere, due to providing such assistance.“[1] In addition „the injured person, who, due to consequences of the injury, requires permanent professional assistance and care that may be provided only by engaging the person with appropriate qualifications, is entitled to claim the compensation for those expenses from the tortfeasor, because this is material damage we have here. This compensation shall be ruled by the court and paid periodically as a pecuniary compensation payable in installments.“[2]

[1] The Supreme Court of Serbia, Civil Action No. 1418/76

[2] The Supreme Court of Serbia, 3489/73

[1] The Supreme Court of Vojvodina, Revision No. 1074/88

[1] The decision by the Supreme Court of Serbia, Revision No. 1403/82

Autor: Bašić Melika/Huskić Law Office