The assessment of damages in Spain has undergone a seismic shift, in favour of the seriously injured claimant, following the implementation of a new “Baremo” on 1 January 2016. The changes mean that Spanish law is now aligned to the common law approach, with damages calculated according to the principle of “restituto integrum”, ie restoration to original condition. This has always been one of the guiding principles for the assessment of damages in England and Wales and is markedly different to the previous approach in Spain.
The new scale for compensation is far more generous and will mean a significant increase in recoverable damages, particularly for seriously injured claimants. It has long been recognised that Spanish damages in many circumstances fell far short of other European countries and the revision aims to reduce this disparity.
Whilst the most notable effect will be an increase in damages, the new Baremo also extends damages to a wider category of people, particularly to family members of a deceased. It also revises the law in relation to cases involving contributory negligence, such as failure to wear seat belts or a crash helmet. These changes again mirror the traditional approach adopted in the UK.
Prior to the reforms it was possible for defendants to plead contributory negligence for cases involving claimants who were minors or who did not have capacity. The changes mean that this will no longer be possible and this is therefore further good news for claimants.
Under the previous Baremo, gratuitous care from friends and family was irrecoverable against a negligent defendant. However, the new rules now recognise this head of loss in certain circumstances.
Damages for loss of earnings were previously awarded as a percentage calculated on the value of general damages but this often led to claimants being significantly undercompensated. They will now be determined on the basis of “restituto integrum”, thereby enabling claimants to be compensated in full for any associated loss of earnings.
The new Baremo also attempts to reduce litigation and to promote out-of-court settlements. Claimants must make offers to settle before issuing proceedings and defendants must give consideration to any offers or make their own. They will be expected to give good reason for failing to settle legitimate claims pre-action (which again is akin to the English approach).
Mediation is now available to claimants in certain circumstances, which should lead to a speedier resolution of claims. This is not to say the insurance lobby has failed to secure any gains at the negotiation table. Under the new scheme, it will be much more difficult for a claimant with minor whiplash injuries to recover any form of damages. This will evidently result in very significant savings for Spanish insurers given the number of claims involving whiplash and minor injuries.
These are only a sample of some of the key changes and the implications for accident victims in Spain.