Where To Claim? Home Country Or Spain?
Every year many Europeans travel south of Europe and Spain remains one of the main holiday destinations. Often, when travelling abroad tourists will choose to hire a car or to be transported by road from airports to their holiday resorts or to visit tourism hotspots.
As a consequence, large numbers of these holidaymakers, and those travelling for business, are exposed to the risk of accidents in an unfamiliar jurisdiction with its own legal provisions and procedures.
Following an accident, whether your client’s interests will be better served if the claim is brought before the courts of your home country or in the foreign jurisdiction, is a major issue to be considered when assessing the claim.
‘Odenbreit’
We are all well aware that the decision of the European Court of Justice in the case of Jack Odenbreit on 13 December 2007, has allowed individual claimants who have been the victim of accidents in another Member State to bring a direct action in their country of residence against the relevant foreign insurer rather than in the country where the accident occurred. Odenbreit, therefore, determines that the injured party has the right to issue proceedings in the Court of his domicile providing that such a direct action against the insurer is permitted by this country’s regulations and the insurer has a registered office in this Member State.
‘Rome II’
In what concerns applicable law, with the advent of Regulation 864/2007 (Rome II), the general rule is that the applicable law shall be that of the country in which the damage occurs, where the event said to give rise to the damage occurred after 20 August 2007.
The applicable law is now, therefore, to be decided not under national rules but under a EU regulation, Rome II.
Rome II provides a uniformed set of rules to decide which country's law governs substantial issues, mainly liability issues, what means of damage are recoverable and limitation.
In this sense, Article 15(c) states that the law determined under Rome II will govern matters including "the existence, the nature and the assessment of damage or the remedy claimed".
On the other hand, Article 1(3) provides that Rome II "…shall not apply to evidence and procedure".
Therefore, there may still be scope to argue that the actual quantification of damages may be regarded as a matter of procedural law, and for the Court in which proceedings are commenced to decide.
In the light of the above, we may still need to wait for a decision of the European Court of Justice as to whether the term "assessment" should be given its general meaning and, therefore, include quantification of damages payable.
The combined effect of Odenbreit and Rome II means that courts of each Member State will be required to apply foreign law in many more cases than previously. This will inevitably increase the length and cost of proceedings and may lead to less predictability in terms of outcome.
Consequently, the responsibility of the acting solicitor is much greater than before and will have to obtain solid evidence before choosing the jurisdiction. Therefore, in the case of court proceedings being issued in your home country, the advice of a Spanish expert will become paramount.
This is bound to give rise to serious complications, particularly between jurisdictions where the legal traditions are very different such as the Spanish and the UK.
As always, and bearing in mind we are still on uncertain grounds, issues such as jurisdiction and choice of law should be identified and dealt with at the earliest possible stage to enable any potential benefit to be obtained for your clients.
It is, therefore, very important that a detailed comparison of the quantum of the claim in the different jurisdictions available is carried out. This should then be taken into account, together with all different aspects relevant to the claim in terms of evidence or enforceability of the judgement amongst others, to provide your clients with comprehensive advice as to the options available. This allows you to decide which jurisdiction will be better placed to deal with the claim.
Case Study
We are aware that the assessment of damages in personal injury cases can raise very delicate issues.
Lets take for instance a victim aged 35 injured whilst travelling as a passenger in a car in Spain. Whilst stationary at the traffic lights a car behind collides with the vehicle. The victim is wearing a seatbelt at the time but develops a whiplash injury later on in the day.
According to the medical evidence obtained, the victim’s whiplash injuries are likely to leave her with some residual permanent symptoms. The victim was signed off sick for forty days and has received chiropractic treatment and physiotherapy during four months. Unfortunately neither seem to have helped. The victim has therefore been left with permanent pain in the neck and shoulder and has regular headaches.
The doctor has also indicated that it seems likely that the victim will develop osteoarthritis in her neck sooner than might be expected due to the accident.
The victim was not in employment and has not suffered loss of earnings.
Considering JSB’s guidelines, in the UK the injuries may fall under moderate whiplash and possibly into the upper bracket. General damages are therefore likely to be in the region of approximately £12,000.
On the other hand, in Spain, there are scales set out by law which are used to calculate the amount of compensation a person is entitled to for a personal injury claim resulting from a road traffic accident. The assessment of the victim’s general damages is therefore based on two main points:-
- Period of temporary incapacity
- Permanent symptoms
The period of temporary incapacity will cover the number of days during which the victim is deemed to be medically incapacitated until the injuries have stabilised.
In this instance, under the Spanish ‘Baremo’, there is a sliding scale of damages awarded for:
- Days spent in hospital
- Days fully incapacitated
- Days under treatment but not incapacitated
Furthermore, permanent symptoms are also put into one of eight categories which cover the entire human body and a ninth category that refers to cosmetic damage. Within each category there are lists of injuries, each with a range of points reflecting the severity. A fixed sum is then awarded for each point calculated according to the age of the victim.
In accordance with the Spanish ‘Baremo’ in 2009 the valuation of the victim’s injuries in the case described would be as follows:-
- Period of total incapacity: 40 days at 53.20 Euros per day - 2128 Euros
- Period of partial incapacity: 160 days at 28.65 Euros per day - 4584 Euros
- Permanent symptoms: 9 points at 843.51 Euros per point - 7591.59 Euros
- Total amount: 14,303.59 Euros approximately
Furthermore, in what concerns loss of earnings, the Spanish Baremo will automatically award a percentage (whether the victim was employed or not) calculated in accordance with the victim’s annual earnings. In this case, there being no fixed salary, percentage would be 10%.
Total damages in Spain would therefore be in the region of 15,733.94 Euros.
This example highlights that the specific circumstances of each case need to be carefully considered as the differences in the way injuries are assessed in both jurisdictions could lead to substantial variations in the amount of damages to be recovered by the victim.
One clear example of this is bereavement claims. In the UK the amount of bereavement damages which can be claimed by a husband or wife of a deceased whose death was caused by a third party or for the parent of a deceased child under 18 who has never married, is £11,800. In Spain, the amounts set by the Baremo for bereavement damages could be up to 157,256 Euros plus some extras, depending on the victim’s personal circumstances.
Expert witness in court for this kind of issues is work that we are currently undertaking. We have experience and knowledge in several European jurisdictions.
If any of your clients has been affected by any of the issues discussed in this article our team can provide full advice and guidance on the specific circumstances affecting their case. Please contact us on 0034 952 209 860 or email imabogados@irwinmitchell.es.