Assessment of damages under Spanish Law

Now that the United Kingdom has left the EU and all EU regulations have ceased to apply, any English resident who has had an accident in an EU country and where proceedings have not been instituted at an English court on or before 31 December 2020, will no longer be able to pursue a claim at the courts of England and Wales. This means that the victim will have to issue court proceedings in the country where the accident occurred and have the value of his/her claim assessed under the law of the place of the accident.

The assessment of damages under foreign law, which includes the application of foreign practices, conventions and guidelines, is far from being a simple task, even in cases with the most straightforward facts.

For those cases being pursued in the jurisdiction of England and Wales where the Rome II Regulation on the law applicable to non-contractual obligations still applies, the input of foreign lawyers becomes crucial to guide the English judge into making fair decisions.

For those cases being pursued abroad, a local lawyer’s guidance of the civil procedure and assessment of damages becomes crucial.

Assessment of damages under the Spanish Baremo

The relevant Spanish regulations regarding the assessment of damages are the Royal Decree 8/2004 of 30 October 2004, and the Act 35/2015 of 22 September 2015 (in force since 01/01/2016) which set out a scheme for the valuation of the Spanish equivalent of general damages (ie. pain, suffering and loss of amenity) in claims arising out of road traffic accidents. This scheme is commonly known as the “Baremo” (ie. from the French “baréme” = scale).

The court’s use of the Baremo in the assessment of “general damages” is specifically addressed to claims arising out of road traffic accidents and it is therefore of compulsory application for all road traffic accident matters. The Baremo is also generally used as a guideline for all other types of claims resulting in personal injury.

Method of quantification of “general damages”

The Baremo rules provide for prescribed levels of compensation in respect of the number of days with symptoms and the severity of any permanent symptoms. The said levels of compensation will increase every year depending on the Spanish pension system.

In brief, the award of general damages under the Baremo will include the following heads of damage:

• Lesiones temporales (ie. temporary injuries):
• Días muy graves (ie. “very severe temporary loss of quality of life”) — €105.35 per day for days when victims of an accident are unable to perform the vast majority of their basic day to day activities such as eating, drinking, toileting, getting dressed, doing basic household chores etc, without assistance. For example, any days spent immobilised in a hospital will fall under this category.
• Días graves (ie. “severe temporary loss of quality of life”) — €79.02 per day for days when victims of an accident are unable to perform a number of their basic day to day activities as described above, or most of “specific fulfilment activities” including leisure, social life, working, sex life, practicing sports, etc.
• Días moderados (ie. “days with moderated impact on daily activities”) — €54.78 per day for days when victims of an accident are unable to perform some of their “specific fulfilment activities” as described above.
• Días básicos (ie. “days with basic impact on daily activities”) — €31.61 per day for any minor residual symptoms up until consolidation (ie. stabilisation) of the injuries.
• Surgery award — In addition, the Baremo contemplates a specific award where the victim has to undergo surgery (from €421.41 to €1,685.67). The exact amount will depend on the nature and complexity of the surgery performed.
• Secuelas — (ie. permanent injuries)

The Baremo also awards victims of accidents resulting in personal injury, a lump sum for their ongoing symptoms, known as the award for “secuelas” (ie. sequelae). The assessment of the “secuelas” is made on the basis of a “points system” where each ongoing symptom has attributed a number of points depending on the age of the victim, the severity of the symptom in question and the number of points accumulated.

Cosmetic damage

The Baremo also uses the “points method” to award compensation in respect of cosmetic damage arising from injuries sustained at the accident (ie. “perjuicio estético”)

“Perjuicio moral por pérdida de calidad de vida” — (ie. Pain and suffering for permanent loss of quality of life)

The Baremo also provides for the aware of a lump sum to victims of an accident where the victim of an accident is no longer capable of performing their pre-accident daily activities or are partially impaired to perform them. This award ranges from €1,527 for the mildest permanent loss of quality of life up to €152,781 for the highest award on catastrophic injury cases.

Financial loss

Pursuant to Spanish law, the victim of an accident is entitled to recover the financial loss incurred as a result of an accident, including but not limited to:

• Cost of medical treatment
• Cost of paid care and assistance
• Reasonable traveling expenses

Any claimed financial loss will have to be supported by relevant evidence such as payment receipts, etc.