A complete guide to claiming compensation for injuries sustained in a traffic accident
You are entitled to receive compensation if you have suffered a traffic accident (as a driver, cyclist or pedestrian) resulting in physical or psychological injuries. In this publication we will review how to claim from the insurance companies all those damages caused to people and/or property: damages to people (accidents), damages to property (in cars) and claiming amounts (life insurance).
Table of contents:
Who is liable in the event of an accident?
It must be assumed that all drivers of motor vehicles, due to the risk created by the fact of driving them, are liable for any damage caused by them while driving (art. 1 RDL 8/2004, of 29 October); and that, similarly, all owners of motor vehicles are obliged to take out and maintain in force an insurance contract covering the civil liability arising with a minimum coverage per claim of 70 million euros for damage to persons and 15 million euros for damage to property (art. 4.2 RDL 8/2004, of 29 October).
Once the accident has occurred, it must be determined which vehicle was responsible for the accident, establishing a cause and effect relationship between the event causing the accident and the damaging consequence. The driver held liable must compensate the other driver(s) for the damage caused by his action.
"The assessment of the causal link requires consideration of whether the harmful result is a natural, adequate and sufficient consequence, assessed in accordance with the circumstances that good sense imposes in each case, which makes it possible to eliminate all those hypotheses that are far or very far from the causal link on pain of leading to an incomprehensible or absurd result". (STS of 22 February 2010).
If the parties involved in the accident agree on how it occurred, they can fill out a friendly accident declaration, which will help the insurers to know the circumstances of the accident, the damage observed, determine who is responsible and speed up the processing of the claim and the payment of compensation.
If the traffic authority intervenes, either because it has not been possible to reach an agreement between the parties involved, or because the accident is of a certain magnitude, it will draw up an accident report containing all the information about the accident, vehicles, drivers, personal injury, material damage, statements from those involved and witnesses, as well as the conclusions reached by the officers, whose assessment will prevail over those of the parties and which will later serve the insurers and those involved to determine who is responsible and the extent of the damages to be compensated.
Sometimes, the responsibility for the accident is shared with the victim, when the latter has carried out some act that may have contributed to the production of the damage. In these cases of shared liability, the degree of liability of each of the parties involved will be assessed when fixing the compensation:
"When neither of the drivers can prove their lack of fault or negligence in causing the damage to the other vehicle, there are in principle three possible solutions: (i) that each driver fully compensates the damage to the other vehicle; (ii) that the faults are neutralised and then neither must compensate the damage to the other vehicle; and (iii) that each one assumes 50% of the compensation for the damage to the other vehicle. This court considers that the third solution is the most coherent with the effectiveness of cover for damage to property by compulsory motor vehicle insurance, as either of the other two could either completely deprive of compensation, without justification, the owner of the vehicle whose driver had not caused the collision but had not managed to prove his lack of fault, or it could result in full compensation for the owner of the vehicle whose driver had caused the collision but without proof in this respect". (STS Plenary of 27 May 2019).
What can be claimed and from whom?
The damages to be claimed as a result of the claim are personal injury and property damage. All damages must be properly assessed and evaluated by means of an expert's report, as well as by means of all the documents that justify the claim (e.g. invoices).
Thus, with regard to bodily injury, the principle of full reparation of the damage must be observed, with which the aim is to ensure full compensation for the damages suffered, so that both the personal, family, economic and social circumstances of the victim, including the loss of income and the loss or reduction in the capacity to obtain it, as well as moral or non-pecuniary damages (art. 33.2 and 3 RDL 8/2004, of 29 October) will be taken into account at the time of the valuation.
Likewise, the principle of vertebration must be observed, so that pecuniary and non-pecuniary damages are valued separately, and within these categories the different damaging concepts are also valued separately (art. 33.4 RDL 8/2004, of 29 October).
The bodily injuries to be claimed that give rise to compensation will be: death, temporary injuries and sequelae (art. 34). Their evaluation will require the collaboration of the injured party for the purpose of their examination and subsequent follow-up by the medical services of the responsible party. The final medical report will be given to the injured party and to the insurance company in order to evaluate the after-effects, temporary injuries and all personal consequences.
For the purposes of compensation, the contents of RDL 8/2004, of 29th October, on civil liability and insurance in the circulation of motor vehicles, which contains the rules of valuation and the tables of amounts of the different damages, will be applied.
"[... with regard to compensation for definitive injuries caused by the circulation of motor vehicles, the legal system, consisting of setting maximum and minimum score limits for each sequel and assessing the monetary value of each point, requires the contribution to the process of those elements of judgement, of medical science and for which expert evidence is indicated, that lead to specifying the intensity and foreseeable future progression of the sequela within the limits to which its description corresponds and which, with this, allow the judge to specify with the greatest possible accuracy the value in points of the respective sequela. (SAP Bizkaia of 1 July 2021).
In addition to personal injuries, pecuniary damages can also be claimed, such as material damages suffered by the vehicle or personal belongings that have been damaged as a consequence of the accident, or the loss of profit that is generated, i.e. those economic losses that are derived from the accident and can be justified (e.g. a self-employed worker who cannot carry out his profession, which results in an economic loss). Likewise, all expenses (hotels, taxis, per diems, etc.) can be claimed.
As regards claims for injuries and damages, these must be addressed to the driver, who must be liable for damages to persons unless he proves that the victim was exclusively at fault, and with respect to material goods when there is fault or negligence (art. 1.1 RDL 8/2004).
The non-driver owner of the vehicle may also be held liable when the responsible driver was under his care or guardianship, unless he proves that he acted with all the diligence of a good parent to prevent the damage (art. 1.3 RDL 8/2004 and 1903 CC).
However, due to the fact that the insurance of the vehicle is compulsory, the injured party or his heirs will have direct action against the insurance company of the causal vehicle from whom they can claim both personal and material damages, the expenses generated as a consequence of the accident and other damages derived from the same, with the maximum limit of the compulsory cover or its extension if contracted.
In cases where the vehicle causing the accident cannot be identified, lacks insurance, has been stolen or stolen from use, the Insurance Compensation Consortium will cover compensation for personal injury and material damage up to the limit of compulsory insurance (art. 11 RDL 8/2004). As in the previous case, the injured party will have direct action against the Consortium. Both the insurance company and the Consortium will have the right to repeat against the driver, owner of the vehicle and the insured if the damage was caused by the fraudulent conduct of any of them or by driving under the influence of alcohol or drugs.
The compulsory insurance does not cover damage suffered by the driver of the vehicle causing the accident, nor damage to the vehicle itself; nor does it cover damage to goods transported by relatives of the driver (art. 5.1). Therefore, in order to be able to claim damages from the insurance company, it will be necessary to have taken out insurance specifically covering these risks.
How to claim?
A) Out-of-court claims
Once liability and the cause and effect have been determined, the injured party or his heirs may bring a direct action against the insurance company of the vehicle causing the damage.
In order to do so, the insurance company of the person responsible for the damage must be informed of the claim and the estimated compensation must be requested. The claim must include the identification and relevant data of the claimants, a statement of the circumstances of the event, the identification of the vehicle and the driver, if known, and the medical or expert medical information that allows the damage to be quantified. Within three months of receiving the claim, the insurance company must present a reasoned offer of compensation if it considers the responsibility and quantification of the damage to be accredited. If he does not agree, he must reply to the claim indicating the reason for not presenting the offer, including the documents and reports that support his decision. Similarly, if the injured party does not agree with the insurer's proposal, he may request complementary expert reports. If an agreement is not reached, the injured party has two options: a mediation procedure or to go directly to court.
B) Legal claim
If an out-of-court settlement is not possible, and if mediation is not successful, the injured party will have to file a civil lawsuit, with the assistance of a lawyer, against those liable to pay compensation. The lawsuit will be accompanied by any documents available to support the claim: amicable report, police report, medical reports, expert reports, etc. The judge, on the basis of the evidence, will determine whether or not there is liability and will fix the compensation, if appropriate.
On the other hand, if criminal proceedings have been initiated for an event covered by the compulsory civil liability insurance, and the judgement is acquittal, the injured party may choose to waive the civil action or reserve it to be elucidated in civil proceedings, or the criminal judge who has heard the case may issue an order determining the maximum amount that can be claimed as compensation based on the reasoned offer or the reasoned response of the insurer or the Consortium.
In the absence of an offer or reasoned reply, the judge will summon the parties so that they can provide or present allegations. If the agreement is reached, it will be homologated by the judge; otherwise, the judge will issue an order fixing the maximum amount.
We hope you have found this information useful when trying to understand the possible consequences of not paying a traffic fine. If you liked our content, don't forget to 'like' it, comment and share it with your friends and family. At Easylex Abogados we are experts in compensation claims. If you need help, please do not hesitate to contact our team of highly trained lawyers who will be happy to help you. Thank you for reading!
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