The Gazette 1988

GAZETTE

JUNE 1988

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

(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 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 a later stage. Res judicata

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

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