Recovering damages from the at‑fault driver: how to protect your rights

After a road traffic accident, most drivers expect a payout from the at‑fault driver’s insurance company, but in practice this is often not enough to cover all losses. As a result, victims frequently have to recover additional damages directly from the at‑fault driver, either through pre‑trial procedures or in court. Understanding the compensation mechanisms, the provisions of the Civil Code of Ukraine and the specifics of insurance helps you avoid ending up “in the red” even in complex situations.

Legal grounds for claiming damages
Under Article 1166 of the Civil Code of Ukraine, property damage caused by unlawful actions must be compensated in full by the person who caused it. A special regime for traffic accidents is established by Article 1187 of the Civil Code: the owner or lawful possessor of a vehicle is liable as the owner of a source of increased danger regardless of fault, unless they prove the existence of exceptional circumstances.

If the driver’s civil liability is insured under a compulsory third‑party liability policy, the primary payer is the insurance company, but only within the policy limits. When the actual losses exceed those limits or the insurer refuses to pay, Article 1194 of the Civil Code applies: the at‑fault driver must pay the victim the difference between the actual amount of damage and the insurance payout received. Therefore, even after the insurer has paid, the tortfeasor’s obligation to compensate damage remains in force until full compensation is achieved.

When you have to claim directly from the at‑fault driver
Direct claims against the at‑fault driver are necessary when they have no valid compulsory insurance policy, the insurer has refused to pay or has significantly underestimated the amount, the damage exceeds the policy limits, the insurer has been liquidated or excluded from the Motor (Transport) Insurance Bureau of Ukraine (MTIBU), as well as when the victim additionally claims moral (non‑pecuniary) damage, lost profit or other expenses not covered by insurance. In such situations, the victim may apply both to the insurance company and directly to the at‑fault driver, or combine these approaches by recovering from the driver the difference between the actual losses and the insurance payout.

Pre‑trial settlement: is it worth starting with negotiations
As with most civil disputes, it is advisable to try to resolve compensation issues after a traffic accident first in a pre‑trial manner. This may involve a written claim to the insurance company describing the circumstances, citing the law and attaching proof of losses, a written demand to the at‑fault driver for voluntary compensation, as well as negotiations with the participation of a lawyer who formulates the legal position and warns of the consequences of refusal. The pre‑trial stage sometimes makes it possible to obtain money without going to court, and if the claim is rejected it creates an evidentiary record (claims, delivery notices, insurer’s responses), which later confirms the victim’s good faith and can affect the allocation of legal costs.

Court claim: what you can ask for
If no agreement is reached, the next step is to file a lawsuit to recover damages from the at‑fault driver (and, if necessary, simultaneously from their insurance company). Lawyers recommend filing a claim only after compiling a complete set of evidence, including:

court rulings or materials of administrative/criminal proceedings confirming fault or at least the fact of the accident;

appraiser’s reports on the amount of material damage (repair costs, loss of commercial value, etc.);

documents confirming additional expenses: tow truck, vehicle storage, medical services, medicines, diagnostics;

evidence of insurance payments (or refusals) to substantiate the difference to be recovered from the at‑fault driver;

evidence of moral damage, such as medical records, psychologist’s reports, and testimony about deterioration in quality of life.

A statement of claim usually combines several demands: compensation of material damage, non‑pecuniary (moral) damage, reimbursement of expert costs, legal fees and court fees. Civil law also allows you to claim lost profit (for example, lost income if the vehicle was used for business purposes), but such demands require particularly thorough proof.

The role of insurance payouts and the at‑fault driver’s additional payment
In most cases, the first “filter” is the insurance company, which is obliged to pay compensation within the limits of the compulsory insurance policy. If this compensation is insufficient, the mechanism of the at‑fault driver’s additional liability under Article 1194 of the Civil Code applies: they must reimburse the difference between the actual losses and the amount already paid by the insurer.

Typical situations where this difference is recovered from the at‑fault driver include:

extensive damage to an expensive vehicle where repair costs exceed the policy limit;

accidents involving serious bodily injuries, where treatment and rehabilitation costs are higher than the maximum payout;

cases where the insurer covered only material damage, while moral damage, lost profit and the deductible remained uncompensated.

Case law proceeds from the position that receiving insurance compensation does not terminate the tort obligation of the at‑fault party until the damage has been fully compensated.

If there is no insurance or the insurer does not pay
A separate category comprises accidents involving at‑fault drivers without a valid compulsory third‑party liability policy. In such cases the victim may:

apply to the Motor (Transport) Insurance Bureau of Ukraine (MTIBU) for a statutory payment in cases provided by law;

in parallel or alternatively, file civil claims directly against the at‑fault driver;

in the event of a partial payment by MTIBU, recover the remaining difference from the at‑fault driver.

It should be borne in mind that after MTIBU or the insurer pays money to the victim, they may exercise a right of recourse and demand reimbursement from the at‑fault driver if the terms of insurance were breached (driving under the influence, lack of a policy, leaving the accident scene, etc.). This does not affect the victim but significantly impacts the legal position of the at‑fault driver.

Proving the amount of damage: expert reports and valuation
For a successful recovery of damages from the at‑fault driver, it is crucial not only to prove the fact of the accident and fault, but also to substantiate precisely the amount of loss. In practice, this involves:

valuation reports on the cost of repair and the vehicle’s loss of commercial value;

automotive technical expert opinions establishing the causal link between the accident and the damage;

medical documents and invoices for treatment, rehabilitation and care;

financial documents confirming loss of income (for lost profit).

Courts treat “approximate” amounts stated only by the victim with caution. If actual expenses are not supported by receipts, invoices or expert opinions, there is a risk that the claim will be partially dismissed.

Why it is difficult to recover damages without a lawyer
Formally, the law provides the victim with all tools for self‑protection: the possibility to apply to the insurer, MTIBU and the at‑fault driver, to file lawsuits and engage experts. In practice, however, every stage contains procedural nuances:

time limits for notifying the insurer (usually up to three working days);

choosing the proper defendant and formulating the claims;

correctly calculating damages and court fees;

meeting evidentiary standards in court.

Mistakes at any stage may lead to dismissal of the claim, reduction of the compensation amount, or delay of the proceedings for years. That is why traffic‑accident lawyers stress that the earlier a victim seeks professional assistance, the higher the chances of obtaining full compensation within a reasonable time.

If you have questions or problems related to recovering damages from the at‑fault driver, challenging an insurer’s refusal, preparing a court claim or calculating material and non‑pecuniary damage, you should consult a specialised lawyer who will analyse your situation, propose an optimal defence strategy and support your case at all stages — from pre‑trial negotiations to enforcement of the court decision.

Author: Maksym Lykhovyd, attorney at WINNER Law Firm.