Fatal road traffic accident: family members’ rights and compensation for damages

From the accident to the compensation claim

When faced with a sudden loss, it is natural to feel disoriented and overwhelmed by grief.

Engaging a trusted lawyer allows family members, at the very least, to avoid having to deal immediately with the legal aspects of the matter.

The lawyer’s first task is to accurately reconstruct the dynamics of the accident and identify all parties liable for compensation: the driver who caused the accident, the owner of the vehicle, and the relevant insurance company. In cases involving hit-and-run incidents or uninsured vehicles, the procedure is instead initiated against the Road Accident Victims Guarantee Fund.

Once the initial elements have been gathered, the lawyer – acting on behalf of the family members – opens the claim with the insurer of the liable party. By filing the claim notice:

• the facts and circumstances of the accident are set out;
• the begin of so-called settlement procedure;
• the limitation period is interrupted.

In many cases, compensation is obtained out of court through private negotiations between the lawyer and the insurer.

However, where no reasonable settlement offer is made, it becomes necessary first to commence an assisted negotiation procedure pursuant to Decree Law no. 132/2014, converted into Law no. 162/2014, and, should this fail, to bring civil proceedings in order to obtain a judicial award of damages.

Although this article focuses on civil-law aspects, it is worth noting that family members may also join criminal proceedings for road homicide  as civil claimants. This enables them to seek and obtain compensation directly in the criminal proceedings, based on the evidence collected by the Public Prosecutor’s Office (technical expert reports, expert opinions, witness statements).

Who is entitled to compensation for the death of a family member?

The so-called damages for loss of parental relationship, which are of a non-pecuniary nature, arise where, as a result of another party’s unlawful conduct, the claimant’s established way of life—rooted in affection, shared habits, and the daily relationship with the deceased—is disrupted, and where the claimant suffers the inner distress consequent upon the definitive loss of such relationship (inter alia, Italian Supreme Court, Civil Section III, decisions no. 23469/2018 and no. 7513/2018).

The quantification of such damages, as non-pecuniary damages pursuant to Article 2059 of the Italian Civil Code, is carried out on an equitable basis, taking into account, in particular, the intensity of the family bond and any cohabitation, as well as any other relevant circumstance of the specific case.

Accordingly, there is no exhaustive list of family members who are entitled to compensation.

In general, any person who can prove that they had a stable emotional relationship with the victim and suffered actual prejudice as a result of the death may be entitled to damages.

That said, case law distinguishes between situations that generally require no specific proof and others that require a more detailed assessment.

For close relatives – spouses, children, and parents – the damage arising from loss of parental relationship is normally presumed.

These ties are considered so close that the suffering resulting from the death does not need to be specifically proven, as the prejudice stems from the very nature of the relationship.

Siblings, grandparents, and grandchildren may also obtain compensation. In such cases, however, courts may require additional elements to assess the authenticity of the emotional bond and the concrete impact of the loss. This does not mean proving grief itself, but rather preventing compensation for merely formal or, in practice, non-existent relationships.

For more distant relatives, such as uncles/aunts or cousins, compensation is not automatic. It may be awarded only if the relationship with the victim was, in substance, equivalent to that of a close family member—for instance, where an uncle raised a nephew as a child.

A similar approach applies to in-laws (sons-in-law, daughters-in-law, and parents-in-law). Although there is no blood relationship, case law has acknowledged their entitlement to compensation where a solid emotional bond and actual suffering are demonstrated, such as in cases of stable cohabitation or a relationship comparable to that of parent and child.

«The absence of a close blood relationship between a daughter-in-law and her father-in-law (relatives by affinity pursuant to Article 78 of the Civil Code) does not, in itself, preclude recognition of the non-pecuniary damage suffered by the daughter-in-law as a result of the father-in-law’s death, where – beyond the existence of cohabitation, which may or may not constitute a relevant factor in assessing the existence of a solid and lasting emotional relationship – it is established that there was a prior and genuine reciprocal family bond of affection and a relationship of significant emotional intensity» (Court of Turin, Fourth Civil Division, Judgment of 26 October 2021, no. 4716).

The de facto cohabiting partner  is also entitled to compensation, namely an unmarried partner bound to the victim by a stable and lasting relationship. Case law has clarified that a “de facto family” is legally protectable when there is a reciprocal emotional bond, accompanied by moral and material support, even in the absence of continuous cohabitation (Italian Supreme Court, Civil Section, decision no. 9178/2018).

These principles have been reaffirmed by recent case law. In particular, Italian Supreme Court, Civil Section III, 28 March 2023, no. 8801, recognised the right to compensation of a partner more uxorio, placing weight on concrete elements such as the duration of the relationship, shared residence, and joint management of expenses, as indicators of the actual existence of a de facto family.