The Spanish Council of Ministers recently approved a draft law intended to reform the assessment of damages for claimants injured in road traffic accidents. On average, it is envisaged that the reforms will result in a 50% increase in damages for fatality cases and a 35% increase in compensation for pain and suffering.
It has been recognised for some time that a reform of the Spanish system is overdue and the changes are therefore to be implemented by no later than 1 January 2016. The government has indicated that it expects parliament to approve the draft during the Summer session.
Importantly, the new approach will distinguish between general and special damages. For now, they remain intertwined – for example damages for loss of earnings are calculated according to the sum awarded for general damages, which often results in curious anomalies. The new baremo instead regulates the rules for the quantification of special damages and loss of earnings as separate and independent heads of loss.
Future medical expenses for people with permanent injuries will also be recoverable. Since the previous amendment in 2007, claimants could only recover medical expenses until the date of 'stabilisation', which meant they often had to pay future medical expenses from their own pocket.
The new method of calculation will also take into account factors such as a claimant’s inability to carry out housework and any relevant prejudice on the future labour market.
The assessment will also no longer rely solely on fixed sums for certain types of injury, but instead will refer to a combination of factors, such as the duration of the injury, the extent to which there was a risk of death and any associated reduction in pension.
Awards of damages for pain and suffering in other EC member states are usually significantly lower than those one might recover according to English law. This development therefore marks a significant change and is welcome news for seriously injured holidaymakers in Spain, who will now be able to recover damages more akin to those awarded in England.
However, a final note of caution: the compensation to be awarded for run of the mill whiplash claim is to be lowered. It therefore seems likely that the total monies to be paid out by Spanish insurance companies to injured claimants will reduce overall.