Composition of damage to objects and costs
Traffic accidents occur almost every day. If you are the victim of this, you are entitled to compensation. Which material damage items are taken into account are set out below. For an explanation of the damage items with regard to physical damage, reference is made to the section “Composition of damage to persons.”
1. Vehicle damage:
1.1. Repair costs
In principle, this damage is compensated on the basis of the report of the expert, this expert is appointed by the WAM insurer of the liable party or by the own insurer if the RDR agreement applies. Unless the RDR agreement applies, the victim should write to the liable party's WAM insurer as soon as possible with a request to appoint an expert. If the expert investigation is not carried out, you as a victim can appoint an expert yourself and submit a report, and a repair invoice can also be submitted. However, this is a one-sided estimate of damage and must meet objective standards, which can always be challenged.
You are also entitled to a refund of the VAT on the damaged object / vehicle.
You are also entitled to a reimbursement of the costs due to a technical inspection after a major repair. The costs for overhauling accessories are also fully reimbursed. This is also the case with regard to the tax on 'entry into service' of the new vehicle, calculated on the replacement value of the destroyed vehicle.
The costs of repair can exceptionally be awarded if a replacement vehicle with the same characteristics cannot be found or if the destroyed vehicle is of special value to the owner.
1 .2. Depreciation
The courts are reluctant to award compensation for the depreciation of a damaged vehicle, unless the vehicle is badly damaged and relatively new.
In special circumstances (new vehicle and old-timers), a compensation rule is applied for the capital loss of heavily damaged vehicles. This capital loss is calculated on the basis of the value of the damaged vehicle. The valuation of a classic car will lead to the necessary discussions. In the absence of concrete evidence, a table is used that states the depreciation of the vehicle after repair. a flat-rate compensation of 10% is granted on the value of the new vehicle.
1.3. Total loss
If the repair costs more than the value of the vehicle before the accident minus the wreckage value, this is referred to as an economic total loss, the damage to the vehicle is then repairable, but only at a price that is no longer in proportion to the value.
If the repair can no longer be carried out, this is referred to as a technical total loss. The damage is then equal to the value of the vehicle before the accident minus the wreckage value.
In both cases, the value of the vehicle is determined by a car expert and the wreckage value will depend on the bids of the buyers. The highest bidder becomes the owner unless the injured party wishes to keep the wreck at the price of the highest bid.
If no vehicle comparable to the damaged vehicle can be found on the market, the case law will accept the reimbursement of the repair costs, even if it exceeds the replacement value.
2. VAT and tax registration fee
As already mentioned, the injured party will receive a VAT refund, calculated on the replacement value, even if the vehicle is not replaced.
There was once a discussion in case law about the applicable VAT rate and a lot of ink has flowed about this. According to current case law, we can say that the full rate is due. The Court of Cassation ruled that if the injured party is not subject to VAT and is therefore not allowed to deduct the tax or obtain refunds from the State, the compensation also includes the VAT due on the purchase price of a similar item. This tax is calculated at a rate set by law for the purchase of a new car, even if the damaged car was purchased second-hand at a more limited tax.[1]
The VAT refund rule only applies to claimants who are not liable for VAT. Which is logical, of course, since VAT taxable persons can deduct VAT on their purchases and sales.
The tax registration fee of a new vehicle is also reimbursed. These costs are usually incurred after a total loss in the purchase of a new vehicle.
3. Hoist and storage costs
The costs for towing the damaged / destroyed vehicle are fully reimbursed.
The storage costs or parking fees are reimbursed insofar as the period of storage is causally related to the accident. Also the period during which the vehicle must remain at the disposal of the expert and subsequently the time required for the sale of the wreck or while waiting for the repairs to be carried out.
The necessary costs for the transhipment of transported goods are also reimbursed.
4. Loss of use
4.1. Waiting time
With regard to the compensation for the loss of use of a vehicle, the number of days required for the repair must be compensated. This repair time is usually determined in the report of the expert, which is drawn up with the agreement of the repairer. A flat-rate daily allowance for loss of use is generally granted for both private and professional use.
In the event of total loss, the waiting period runs from the day of the accident to the day on which the injured party is informed of the total loss and of the value of the destroyed vehicle, i.e. the amount of compensation to be expected. The injured party is allowed to wait until then to make a decision about the replacement of the destroyed vehicle.[2]
4.2. Recovery time
If the vehicle is repaired, compensation will be awarded for loss of use during the waiting period and the repair period.
The waiting period is the time that elapses until the expert investigation has been completed. Generally, 1 day is awarded if the vehicle is not unusable. A waiting period of three days is granted if the vehicle is unable to drive. However, the waiting time is estimated in concrete terms if the expert investigation is not carried out on time due to negligence on the part of the liable party's WAM insurer.
The repair period is the duration of the repair work agreed between the expert and the repairer. The repair time is stated in the expert's report. Case law regularly decides that the actual duration of the loss of use takes precedence over the repair period determined by the expert.[3]
In the event of total loss, compensation is granted for loss of use during the waiting period and the transaction period. Again, the waiting time is three days if the vehicle is unusable. If the vehicle is not out of use 1 day.
The mutation or replacement period is the time that the injured party needs to purchase another vehicle and to complete the required administrative formalities. Here, too, it is regularly held by case law that the period that the injured party actually needed to purchase a vehicle must be observed.[4] IT proposes to award compensation for the proven number of days. In the absence of concrete elements, a lump sum of 15 days is granted.
4.3. Compensation for loss of use
Lump sums
If no replacement vehicle is hired, lump sums will be awarded as stated in the indicative table (https://www.schadeweb.be/sites/default/files/Indicatieve%20tabel%202016_605.pdf - see page 21 et seq.)
Rental of a replacement vehicle
When a replacement vehicle is rented, the rental price is almost always awarded. It does not matter whether the claimant needs his vehicle professionally or not. The replacement vehicle must be of the same nature and class as the vehicle for which replacement is required. The damaged or destroyed vehicle must also be repaired or replaced. The rental period must coincide with the period of unusability of the own vehicle.
However, if the injured party rents a replacement vehicle, he saves certain costs on his own vehicle, which is why a lump sum is often deducted. IT suggests that 10% is deducted from the price of the rent.
4.4. Financing
An injured party will sometimes be forced to take out a loan to pay for the repairs or to purchase a replacement vehicle.
However, case law is divided on whether or not to award these costs and on the manner of compensation. Some rulings reject these costs, others attribute the financing costs in the form of increased interest.
IT does state that these financing costs, together with the interest, constitute compensable damage.
5. Travel costs
The injured party can also claim other real costs incurred, such as the costs of relocating close relatives or relocations of his own for expertise.
It is up to the injured party to provide a precise overview of his movements. If the travel costs are estimated at a flat rate, the IT accepts a flat rate of 0,33 EUR / km regardless of the type of vehicle.
The Court of Cassation states the following : the injured party is entitled to full compensation. There is no obligation to limit the damage as much as possible. Reasonable measures should only be taken to limit the harm if this is consistent with the behavior of a reasonable and prudent person. If a judge states that compensation can only be awarded up to an amount that will compensate for travel to a doctor with a cabinet at an acceptable distance, without finding that this behavior is inconsistent with the attitude of a reasonable and prudent person in the same circumstances, do not justify their decision according to law.[5]
6. Administrative costs
This is a cost that will be budgeted at a flat rate. For administration costs and correspondence and telephone costs, IT proposes a fixed amount of 100 EUR.
7. Clothing damage
IT estimates the average value of the entire clothing at 375 EUR, with the exception of jewelery, a watch and transported goods or special equipment, the loss of which, if proven, can be assessed separately.
The IT adds that if an invoice is presented, the wear and tear (aging) of the clothing is taken into account.
In principle, the size is demonstrated on the basis of supporting documents. If pricing is applied, some claimants will be over-compensated and others will be under-compensated.
[1] Court of Cassation 25th September 2008, RGAR 2009, 14492
[2] Police court Ghent 8th October 2012, RW 2012-2013, nr.24, 955-957
[3] Police court Brussel 26th October 2007, VAV 2008,155
[4] Police Court Mechelen 5 December 2007, VAV 2008,156
[5] Court of Cassation 13 June 2016, RGAR 2017/2, 15359