Traditionally Spain has been one of the less enthusiastic jurisdiction when it comes to recognizing compensation for personal injury and death, such that certain concepts such as loss of profits or moral damages recoverable in other jurisdictions, have generally been under-compensated.

Although the entry into force of the updated RTA Schedule of 2015 was intended to resolve some of these shortcomings, the truth is that the fight for an increase in compensation has moved to other areas such as medical negligence or to injuries connected to air transport, that occupies us here.

Thus, where there is a plane crash with injured passengers and crew, the absence of guidelines fixing the potential compensations for those injuries leads the parties to maintain arguments that are totally irreconcilable under Spanish law. In this way, the victims (or their heirs) ask for millions of Euros in compensation, sums far removed from our legal reality. For their part, the airlines (or their insurers) try to apply the RTA Schedules, which would provide predictability and equality amongst victims of a car crash with those of any other type of crash. This discussion has been recurring for several decades now and, in fact, just a few weeks ago, possibly what could be considered as the penultimate battle, was fought.

On 17th May 2019, Judgement 269/2019 was issued by the Supreme Court in relation to the tragic air crash of flight 5022 of SPANAIR of 20th August 2008.

Thus, the procedural precedent of the aforementioned judgment of the Supreme Court is the claim filed by the heirs of one of the deceased passengers of that fateful flight against MAPFRE GLOBAL RISK as insurer of the airline SPANAIR. The Claimants requested the following compensation:

- XDR 250,000 (approximately € 235,632.50) to be distributed among the three claimants (parents and sister) for the strict liability of SPANAIR;

- € 1,000,000 for each parent of the deceased due to the negligent responsibility of SPANAIR, and.

- € 500,000 for the sister of the deceased due to the negligent responsibility of SPANAIR.

For its part, MAPFRE GLOBAL RISKS argued before the Commercial Court of Barcelona that liability be limited to the relevant RTA Schedule increased by 20%, taking into account "the tragic circumstances of this accident and taking into account the safety bonus" expected by the Air transport users.

The Commercial Court of Barcelona agreed with MAPFRE GLOBAL RISKS and fixed the compensation with reference to the RTA Schedule. But added a 50% uplift and not the 20% uplift sought but MAPFRE GLOBAL RISKS. In this way, the judge awarded the parents of the deceased € 74,495.36. Similarly, and despite the fact that the RTA Schedule only provided for compensation in favor of siblings in certain circumstances, in this particular case the compensation of € 20,000 was granted to the deceased's sister, taking into account the specific circumstances of the case – cohabitation with the deceased, etc.

The Commercial Court Judgment was appealed by the Claimants and by MAPFRE GLOBAL RISKS, each party reiterating its claims and arguments. Thus, the Appeal Court of Barcelona, partially accepted the claim of the Claimants, and increased the compensation to € 235,632.50 to be distributed among the three heirs, and thereby not applying the RTA Schedule as a guide to compensation.

The Judgment of the Appeal Court was again appealed by the Claimants and by MAPFRE GLOBAL RISKS before the Supreme Court. The Claimants insisting (basically) on higher compensation and MAPFRE GLOBAL RISKS insisting (basically) on the application of the RTA Schedule.

On 17th May 2019, the judgment of the Supreme Court in which both appeals were resolved was finally published. Without intending here to go into depth in the legal analysis of the judgment, the Supreme Court rejected the Claimants' appeal and partially accepted that of MAPFRE GLOBAL RISKS based on three core arguments:

- That the fact that the Montreal Convention does not establish indemnity limits in case of death does not mean that any amount can be claimed;

- That it is irrelevant that other legal systems grant more substantial indemnities, in as much as the compensations claimed are otherwise disproportionate in the context of the compensations granted in similar cases in Spain, and

- That the tragic death of a loved one is always irreparable, but this does not justify limitless compensation. Particularly if what is requested in this case, is compared with what occurs in similar cases.

Therefore, the Supreme Court Chamber opted to return to the interpretative criterion of the Commercial Court of Barcelona and reduce the indemnities given by the Appeal Court of Barcelona.

In this way, the Supreme Court reiterates the doctrine that had already been followed in previous judgments: that the RTA Schedule can be used as a starting point guideline to assess compensation for death or personal injury in other areas beyond road traffic accidents.

Further, and with respect to the particular case of aviation accidents, the Supreme Court confirms that certain recurring arguments, such as the added bonus of suffering or the existence of more generous legal systems, are not in themselves sufficient to seek disproportionate compensation in the context of our legal system.