Difficulty in the investigation of a traffic accident as an important condition for a recourse claim

Probably every driver has at some time or other had his or her car lightly scratched and damaged its paintwork. Many of these cases happen in parking lots where the vehicle is being handled in a tight space. There may simply be contact with the vehicle next to it, which may not always register. In such a case, you may not even be able to comply with your obligations under the Road Traffic Act due to ignorance of the accident. In this article, we will look specifically at the breach of the duty to remain at the scene of an accident until the police arrive in relation to an insurance company's recourse claim.

(on the photo: ARROWS Prague team together with several colleagues from the tax and accounting firm ARROWS tax)

When damage is caused to the car next to a stationary car, in most cases the victim will take it up with the police. The latter has CCTV footage, especially if the accident occurred in the city. Even if there was no intentional hit-and-run on your part, you will not be able to avoid a small fine.

After the police have concluded the case, you may find that the victim's insurance company will seek so-called recourse from you. This is a reimbursement for the benefits that the insurance company paid to the injured party. The conditions for the right to recourse are regulated by Act No. 168/1999 Coll., on Motor Third Party Liability Insurance (hereinafter referred to as the "Act"), in Section 10(1).

Prior to the amendment of the Act in 2016, the situation of leaving the scene of an accident was covered by the general section 10(1)(d), which contained the condition of "making the investigation of the accident more difficult". However, the amendment to the Act carved it out separately into (c), which read "The insurer shall be entitled to recover against the insured what he has paid on his behalf if he proves that the insured ... (c) without reasonable cause left the scene of the accident or otherwise made it impossible to establish the actual cause of the accident"

There is no longer an express condition, as in s 10(1)(b), of making it difficult, impossible or impracticable for the insurer to make a proper investigation or for the insurer to enforce that right. It would thus appear that in every case of leaving the scene of an accident without good cause, the insurer is entitled to recourse. However, this is not the case.

The group of grounds for recourse provided for in section 10(1)(b), (c) and (e) of the Act applies to situations where the insured has failed, without good cause, to comply with a duty imposed on him by law in connection with the actions required to be taken following an accident. However, according to the commentary literature updated after the amendment, the recourse itself arises only when the unjustified breach of duty frustrates or at least hinders the insurer's ability to properly investigate the accident. The insurer (insurance company) is obliged to prove this fact in any court proceedings.

The practice of the general courts has also not changed with the amendment and continues to take into account and apply the conclusions contained in the constant case law of the Supreme Court, e.g. the decision of Case No. 23 Cdo 508/2017 of 21 August 2018, which reflects the above-mentioned opinion of the commentary literature.

Thus, if a letter arrives in your mailbox asking the insurance company to pay you a recourse penalty on the grounds set out in section 10(1)(b), (c) and (e) of the Act and there has been cooperation from you in the investigation of the accident with the police and the insurance company, or there is CCTV footage, the insurance company must demonstrate how it has been hindered in its investigation of the claim. Without this condition being met, there can be no claim for recourse compensation if you leave the scene of the accident.

Should you have any questions, please do not hesitate to contact us. We will be happy to learn more about your case and provide you with appropriate legal assistance.

Matěj Morávek contributed to this article.