{"id":1398,"date":"2010-01-07T11:25:54","date_gmt":"2010-01-07T11:25:54","guid":{"rendered":"http:\/\/decotta.wpsine-dev.com\/?p=1398"},"modified":"2014-05-07T13:17:54","modified_gmt":"2014-05-07T13:17:54","slug":"road-traffic-accidents-rta-injury-claims-spain-information-uk-roi-lawyers","status":"publish","type":"post","link":"https:\/\/decottalaw.com\/fr\/road-traffic-accidents-rta-injury-claims-spain-information-uk-roi-lawyers\/","title":{"rendered":"Road Traffic Accidents (RTA) & other Injury Claims in Spain – INFORMATION FOR UK OR ROI LAWYERS"},"content":{"rendered":"

THIS POST IS FOR UK AND IRISH LAWYERS<\/strong><\/p>\n

If you are acting for someone who has been involved in a road traffic accident then set out below is some general advice on the Spanish legal system.<\/strong>
\nThe Accident There is no obligation on the police to visit the site of the accident unless the parties involved have suffered injuries, there is damage to the vehicles involved or one of the parties refuses to identify themselves. The only obligation an involved party has is to assist the injured party and exchange contact and insurance details. If the injuries suffered and damage to the car is minor then the drivers can sign a form accepting who was responsible for the accident. This is known as a \u201cdeclaracion amistosa\u201d. It is a form where the parties set out how the accident happened, if they are both in agreement to the facts of the accident, after which the insurance companies would apportion blame.
\nIf the injuries suffered require hospitalisation then on leaving hospital a discharge certificate should be obtained, which will set out the name of the patient, the injuries suffered, how they were inflicted, the amount of days in hospital and the treatment prescribed. If appropriate the insurance details of the other driver should be provided to the hospital so that they can contact the insurance company for payment of the treatment.
\nThe Police Usually after a road accident the Police will visit the scene, prepare a report and then send it to the local Court. The report will contain details of the driver\u2019s insurance companies, names of the drivers, witnesses, if any, statements from the parties involved and an objective assessment of how the accident occurred. The Police will generally only release the report directly to the claimant if they attend the police station in person. Alternatively a lawyer can obtain the police report from the Court with a power of attorney signed by the claimant. Unfortunately, this is a lengthy and costly procedure but often unavoidable.
\nPost-accident All police reports will be reviewed by the Court and if the judge considers that there has been a serious criminal offence then a prosecutor will be instructed and criminal proceedings will commence where the burden of proof is 100%. If the incident is classed as a lower level criminal offence has been committed and parties to the action have not notified the court of their intention to join in the proceedings, then the Court will archive the file. The criminal procedure could be reopened at the discretion of the Court if an application is submitted to the Court requesting the reopening of the file if the claimant has been medically discharged and the application is submitted within six months of the discharge date.
\nThe advantages of criminal proceedings are that rarely are legal costs awarded (useful if the case is not absolutely clear), it is usually quicker than civil proceedings and the Court will appoint a doctor to examine the claimant and value their injuries, compensation can then be awarded by the criminal court.
\nLimitation Period All civil claims have to be issued within one year of the accident or within one year of when the claimant is discharged from medical care or within one year of when the criminal file\u00a0 was archived.
\nThe limitation period in civil claims can be interrupted by sending a letter to the defendant. However the claimant may have to prove sending the letter if limitation was ever disputed and therefore to overcome this a burofax, which is a letter delivered personally by the Spanish post office should be issued as the post office issue a certificate which is recognised as a valid document in the Spanish Courts confirming when the letter was sent and when delivery was completed.
\nThe limitation period against town halls and government bodies is one year from the date of the accident or from the date that the claimant is medically discharged.
\nThe limitation period for most criminal cases is six months.
\nThe Claim After a review of the medical evidence the claimant\u2019s injuries should be valued to assess the amount of compensation that can be sought. The valuation can either be prepared by the Court appointed doctor or a private doctor who specialises in producing injury valuation reports.
\nThe value of the claim will be assessed using what are known as the Baremo tables. The tables have three parts, which cover, compensation for cases where death has occurred,
\ncompensation for permanent injuries and compensation for temporary injuries. When arranging a medical report for injuries which will be valued according to Spanish law, it is important that you insist that the medical expert includes the following information in his report:
\n(1) The precise number of days spent as an inpatient in Hospital. (2)\u00a0 Number of impeded days. Defined as days in which the victim cannot carry out his\u00a0\u00a0 or her regular occupation or activity. (3)\u00a0 Number of non-impeded days. The injury itself or the treatments or therapeutic indications\u00a0\u00a0 limit but do not prevent the performance of regular activity or usual occupation. Usually\u00a0\u00a0 considered to be the time in which the injury takes to recover or reach a point where no\u00a0\u00a0 further recovery is possible, no recuperative treatment is possible, and any effects\u00a0\u00a0 thereafter are permanent. (4)\u00a0 Details of long term\/permanent sequalae with precise details of the degree of loss\u00a0\u00a0 of flexion etc. (5)\u00a0 Description of permanent scarring or disfigurement (6)\u00a0 Details of any psychiatric injuries (7)\u00a0 Age of the claimant
\nIn cases where compensation for temporary injuries applies, the tables which are updated on an annual basis by the Ministry of Finance, award a set figure of compensation for days spent in hospital, days recovering at home but absent from work and days back at work but still suffering. For 2013 these figures are 1) 71.63 euros for each day in hospital 2) 58.24 euros for impeded days 3) 31.34 euros for each non impeded day.
\nThe total amount can then be uplifted on a percentage basis depending on the claimant\u2019s annual earnings.
\nIf the claimant has original receipts for the costs incurred as a result of the accident then these reasonable costs can also be claimed so long as they were incurred by the claimant or on behalf of the claimant. Loss of earnings are not always fully recoverable but an amount is paid according to the number of days off work and a multiplication factor applied according to salary level.<\/p>\n

Costs<\/strong><\/p>\n

If an out of court settlement is reached in civil proceedings then each party generally pays their own legal costs. If the case proceeds to trial then if the claimant wins on everything claimed (i.e. on 100% of the amount claimed) then costs can be awarded in the claimant\u2019s favour this usually only include the local lawyer\u2019s costs according to a scale rather than the time incurred and would not include instructing solicitors\u2019 costs. In criminal proceedings there are no awards in respect of costs unless appeals are submitted in higher courts.
\nLegal costs in Spain are assessed by using a guide table issued by the local college of lawyers and tend to be less than the market rates charged by lawyers so even if successful in a claim the costs awarded to the winning party may not pay all legal costs.
\nTwo further points to bear in mind for road traffic accidents. The claimant maybe entitled to legal expenses cover under the insurance policy and could instruct an independent lawyer not employed by the insurance company.
\nA Procurador is used in Court proceedings and they are independent professionals employed by clients and instructed by lawyers to present to and receive documents from\u00a0 the Court.
\nJurisdiction and Applicable Law Because of the length of time disputed claims take to come to trial in Spain and because of the adverse situation in respect of costs, it may be to you and your client\u2019s advantage to bring the claim in the UK or Irish courts directly against the insurers pursuant to (EC) 44\/2001 and the case of FBTO Schadeverzekeringen NV v Jack Odenbreit. This may even be extended to non-road traffic accident claims, such as claims against hotels, water parks etc. Where the defendant has a Public Liability insurer who can be sued directly (which is permitted under Spanish law), the case of Thwaites v Aviva allows the insurer to be sued in the English Courts. Although theoretically this should apply to other jurisdictions, we are not aware if other Courts are following the English decision in respect of non-RTA cases. Although the situation regarding applicable law is rather confused and complex, it is understood that pursuant to Rome II, the applicable substantive law, principally liability and quantum is the law of the country where the accident occurred. The procedural law however, such as rules of evidence is the law of the country where the proceedings are issued. One would assume that this includes the award of costs. This is understandably being challenged by the insurers.<\/p>\n

How We Can Help You If you or your client elects to bring the claim in the courts of the UK or other home country,\u00a0 we can assist you as follows:<\/strong>
\n1) Obtaining a police report if applicable to help determine liability and obtain details of the insurers and witnesses.
\n2) Send a burofax to interrupt prescription (limitation). The case will be entered into our prescription diary so that we can remind you when the 12 month extension is about to expire. We can interrupt prescription on an annual basis until the claim is settled or proceedings have been commenced.
\n3) Assist in obtaining evidence in Spain such as witness evidence or locus reports.
\n4) assist with the wording of the instruction letter to the medical expert so that the report provides sufficient information to value the claim according to Spanish law.
\n5) Advise which heads of damage are recoverable under Spanish law.
\n6) Provide expert reports on Spanish law in respect of both liability and quantum which will be (in the case of cases brought in England and Wales) CPR Part 35 compatible.<\/p>\n

If you wish to instruct us or discuss Spanish personal injury claims in general, please contact:<\/strong>
\nJon Sutton +34 951315161 or jonsutton@decottalaw.net<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

THIS POST IS FOR UK AND IRISH LAWYERS If you are acting for someone who has been involved in a road traffic accident then set out below is some general advice on the Spanish legal system. 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