372 / 822
GAZETTE
JUNE 1988
(a) there has not been a criminal
proceeding;
(b) there has been a criminal
prosecution but the defendant has
been acquitted; or
(c) the plaintiff in the criminal
proceedings has expressly reserved
his right to pursue his civil claim at
a later stage.
Res judicata
This is the most crucial point to
keep in mind as far as the plaintiff
is concerned. The importance of
f o l l o w i ng c l o s e ly t he
c o u rt
i nves t i ga t i on and the criminal
prosecution cannot be emphasised
enough. All civil claims should be
f i l ed
d u r i ng
t he
c r i m i n al
prosecution. If this has not been
done there is always a danger that
the judge may decide to award the
v i c t i ms damages on his o wn
initiative based on such evidence
that he has, wh i ch may be in-
sufficient. Unfortunately, once the
j udgment is made it is
res judicata.
In a case of death, once damages
are awarded there is no possibility
of obtaining any more.
In certain cases when the t wo
parties (plaintiff and defendant) are
Irish residents and the action is
b r ought to this country, it is
advisable in order to avoid further
problems to file a declaration of
renunciation w i t h the Spanish
court w i th the intention of pursuing
the claim in the Irish courts. This
will at least avoid the possibility of
the Spanish judge giving an award
on his own initiative wh i ch nobody
wants.
The f o r ego i ng indicates the
paramount importance of partici-
pating in the Spanish legal pro-
ceedings as soon as possible. It can
only be done through a nominated
abogado
who should be sought and
appointed at the earliest oppor-
tunity. Lengthy correspondence
w i t h an insurance company could
be to the detriment of the claimant
as the company will be aware of
the case and much will depend on
whether you join the proceeding or
not in order to pressurise them.
Even more importantly, the case
could very quickly become statute
barred.
Strict liability
responsabilidad
objativa
Compulsory motor insurance and a
f o rm of strict liability w i t h in the
r oad t r a f f i c l e g i s l a t i on we re
introduced for the first time in
1965, law number 122 / 1965,
reformed by a decree in 1968 and
again in 1986. A broad translation
follows:
" T he driver of a motor vehicle
wh i ch as a result of his driving
causes personal injury or material
damages will be obliged to repair
the damage in accordance w i th this
law.
In the case of personal injuries
and up to the limit of damages fixed
by law, the driver of a motor vehicle,
who in the course of a traffic
a c c i d e nt c a u s es d ama ge to
persons, will be exempted of blame
if it is proved that the cause of
these injuries is due solely to the
fault or negligence of the victim or
to an act of God other than a fault
in the functioning of the vehicle.
Defects of the vehicle or breakage
or failure of some of its parts or
mechanisms are not considered as
acts of God."
The meaning of this article is
this: there exists a presumption of
liability against the driver of a
vehicle for the damage he causes.
Normally this presumption can be
rebutted if the driver can show he
was not at fault.
However, w i t h in the financial
limits of compulsory insurance (for
wh i ch see below), a judge is bound
to award damages to the v i c t im if
he is unable to satisfy himself not
only as to the exclusive fault of the
victim but also the total absence of
any liability on the part of the driver.
In practice, the court applies the
principle of strict liability in almost
every case.
This law is particularly useful in
cases where the driver cannot be
convicted on grounds of fault,
e.g.
insufficient case or death of driver.
However, the judge still has a role
because if he acquits a defendant,
he may render a decision on his
own initiative invoking the strict
liability of the driver and fixing the
ma x i mum of the damages wh i ch
can be obtained under the law
w i t h in the limits of compulsory
insurance. This is quite independent
of whe t her the plaintiff wishes to
pursue the case through the civil
courts.
Assessment of the general
damages
It is important to note that the
decision whe t her to prosecute or
not will have great bearing on the
civil award. If the driver is found
liable on the grounds of fault then
d ama g es
are
awa r d ed
in
accordance w i th c ommon law. If
the driver is acquitted and the
injured party found to be to blame
the strict liability will come into
action and therefore the awards will
be l imi t ed to t he ceilings of
compulsory insurance. However, if
the driver is acquitted due to
insufficient evidence, in addition to
the strict liability coming into force
the ordinary civil jurisdiction is open
to the plaintiff.
The judge has complete freedom
t o awa rd wha t ever he t h i n ks
appropriate in each case. This has
a ve r y. impo r t ant consequence
wh i ch is that appeals based on
quan t um are almost impossible to
w i n . In p r a c t i ce t he re is an
unofficial scale wh i ch has been
evolved by the judges and forms
some sort of approximate guide as
t o d ama g e s, but it is not
necessarily followed by the judges.
Factors taken into account by the
j u d ge
in
awa r ds
f o l l o w i ng
conviction are as follows:
(a)
Personal injury:
Damages are
a s s e s s ed
by
t a k i ng
i n to
consideration on the one hand
permanent disability and on the
other the
dias de baja.
The first
point also takes into account the
social position of the plaintiff
(scars, for example, have different
effects depending on sex, age, job,
etc.).
The second point is difficult
to explain, but essentially it is
supposed to cover the period
du r i ng w h i c h t he p l a i n t i ff is
subsequently unable to pursue his
ordinary activities of day-to-day life.
It is supposed to cover loss of
salary unless the plaintiff can prove
that he earned more on a daily
basis than the fixed amount that
the judge will allocate. This second
point is calculated on the basis of
X number of pesetas per day of
i n c a p a c i ty
and
is
awa r d ed
regardless of whe t her the plaintiff
was in employment or not at the
time of the accident. The rate will
vary according to the court in
question. An average is around
3 , 0 00 pesetas per day and is
increasing.
(b)
Death:
The judge will award a
lump sum which takes into account
a number of factors, including grief
and bereavement and loss of
dependency. However t he net
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