New regulations for damage claims caused by car accidents

Game rules have changed to claim for damages caused by car accidents. On January 1st, 2016, a new set of regulations have entered into force, giving a completely different approach to the judicial path that must be taken to claim for this type of damages before the Courts.

Pursuant to the former law, car accidents were considered as minor offences committed out of negligence. That is to say, an unlawful action, but less serious – usually irrespective of the consequences – due to the lack of concurrent intention of the author of the damages caused by the motor vehicle.

So, according to the former law, the path to claim for these damages would have started by the very own victim filing a complaint at the Police Station or before the Court, within 6 months from the date of the accident, followed by a forensic examination (therefore, free of charge) to determine the personal damages and finally, a ruling that would sentence, if he was convicted, the opponent party to pay the procedural costs (to pay the fees of the other party’s attorney and lawyer, usually the causing driver’s insurance company), but also the victim was exempt from the risk of having to be sentenced to pay the procedural costs. This because the criminal proceeding was eminently public, and apart from the interests of the injured, there was also the primary interest of the State to prosecute and punish the most serious offences of our legal system.

So through the criminal proceeding, one did not only obtain the claim for damages but also its very determination: the forensic MD belonging to the Court’s jurisdiction (or forensic medical center in some cases) would issue a report evaluating the personal damages; a report that, because it was impartial, was also used as a basis for a possible negotiation with the insurance company.

What’s more, the private prosecution in a criminal case can only be sentenced to pay the procedural costs when, apart from the accused being found not guilty, the private prosecutor is found to have litigated maliciously. This never used to be the case of a victim injured in an accident, whose only aim is to recoup the damages.

Besides, for acquittal cases, the very own law foresees a procedural channel so that the victim of a car accident does not have to bear the burden of beginning a declaratory civil procedure against the presumed responsible. The criminal judge who would acquit the accused from bodily harm by negligence would dictate the “decree of maximum amount”, a resolution directly enforceable before the Courts. So an enforcement procedure would be started afterwards, leaving the victim with an almost unobstructed path to obtain a compensation for the damages endured.

But all this procedural path has made a U-turn in July 2015 with the reform of our Criminal Code, that left the minor offences by negligence out of the criminal definitions. These claims are now compulsorily made through Civil procedures, with their own rules in terms of burden of proof and obligation to pay the judicial costs.

It is true that, at the same time, a new regulation has entered into force on January, 2016 that modifies the law regulations civil responsibility and insurance for motor vehicles, objectivizing even more the responsibility in this kind of events (that is, efforts are focused on compensating completely the victim more than on searching the responsibility of the accident); which benefits the victim. Besides, it is compulsory to do a prior request to the insurance company so that the latter can, if considered as appropriate, make a compensatory offer to the insured within the next 3 months. A new scale has also been adopted (scale including injuries, sequels, temporary disabilities, etc. and the corresponding amount for each case), increasing the compensation for car accidents.

But this news will only mitigate very slightly the procedural and economic burden that any car accident victim must bear, as in order to claim for damages, the victim will need to:

1. Start a civil procedure (not a criminal one) within one year from the day of the accident, filing a claim that requires some preparation; it implies hiring a lawyer and an attorney since the very beginning of the claim, with the corresponding cost (as long as more than €2000 are claimed);
2. Obtain the evidences proving not only the responsibility of the person who caused the accident, but also the amount of the liquidated damages. An expert in bodily damages will also be privately hired to assess the victim’s damages and its economic valuation.
3. Assume the possibility not to recover the fees paid for the lawyer, the attorney and the expert (in all cases of partial acceptance of the claim) . At this point, it is dramatically important to check whether the insurance contract has a legal defence cover(even if it is a third-party liability insurance and not a comprehensive insurance, they usually have it), and also at is the limit.
4. Assume also the risk to be sentenced to pay the opponent party’s legal costs if our claim is not admitted. This can happen more often that what could be thought, because of some technical reasons such as time limits, endorsement by the expert of his report during the hearing, etc.)
5. Accept (and fulfil) the first instance decision if the claim is under €3000, because this decision cannot be challenged.

So, even if in general terms we can’t say that the idea of taking these minor offences out of the Criminal Code is unwise – as it concerns the civil jurisdiction rather than the criminal one – we must stress out that the heavy burden placed on the victim’s shoulders will not always be bearable.

Written by Javier Cabello, Partner at Adarve Abogados