Lawyer Monthly: Expert Insight section on Personal Injury
Continuing our Expert Insight section on Personal Injury, Lawyer Monthly speaks exclusively with David Sánchez Almagro, Partner at Estudio Jurídico Almagro S.L.P., a Madrid based law firm.
David qualified in 1995 and specialised in personal injury and insurance matters, including an element of international law.
David acts as advisor and also as expert witness in proceedings before the Courts of England, Wales, Scotland and Ireland arising from accidents in Spain, and where Spanish law is the applicable law for liability and determination of quantum.
On January 1st 2016 a new regulation entered into force in Spain that has substantially changed the way in which the valuation of damages is determined under Spanish law.
Can you please tell me about the main points of this new regulation?
The new regulation, although it continues to be based on a compulsory fixed tariff method for the assessment of non-pecuniary losses, introduces major developments in particular respect to the assessment of pecuniary losses. For the first time, victims will be able to claim for gratuitous care and assistance provided by family and friends.
As regards the loss of earnings, the new regulation contemplates a system for the assessment of future losses based on actuarial calculations that is more similar to the British system. It is also important to know that future medical expenses, as well as aids and equipment, will from now on be recoverable without restriction (including replacements).
As regards to the award for general damages, the system provides for a sort of tailor-made compensation method that takes into account the specific circumstances of each victim and how the accident has affected his/her lifestyle.
What impact will this have on personal injury cases brought before UK courts arising from accidents that occurred in Spain?
Basically, the victim will now have solid legal arguments to sustain recovery of most of his pecuniary losses, which was not the case before.
It was indeed frustrating for us when we had to explain to our British colleagues that an innocent British victim injured in an accident in Spain with a severe working impairment that would cause him a significant future loss of earnings could only recover a small portion of it under the old Spanish laws (may be not even 10% of the real loss of earnings).
Additionally, in cases where the claim for care and assistance is recoverable, the new regulations provide for rules for quantification (to be determined based on the severity of the injury and the number of hours of care and assistance required).
This will have a very significant impact on high value cases and expert legal advice will be required to quantify such care and assistance claims in accordance with the specific statutory rules set out in the new regulation.
In your opinion, are these changes positive or negative? Please explain the reasons for your answer.
In my opinion these changes are positive in that they have put an end to a rather peculiar (and unfair) method of assessment that did not draw a clear distinction between pecuniary and non-pecuniary losses and undercompensated pecuniary losses. Besides, the new system allows a significant increase in quantum for the severely injured victims.
The situation has also improved significantly in relation to fatality claims and in particular in cases where there was a dependency claim. Under the old system those dependent upon the victim could only claim percentage uplift on damages. Now they can make a dependency claim based on actuarial calculations.
On the minus side, the new system has tightened up the evidence requirements for the compensation for whiplash injury. Fortunately for British victims evidence matters are likely to be ruled by British procedural law so they will probably be better off than Spanish whiplash victims.
Could the regulations have gone any further?
The regulations are themselves very innovative and quite probably among the most complete in Europe now. I believe they could have gone further in the protection of victims with medium and minor injuries, but the legislator has focused on the severely injured and fatality claims, leaving the rest of the victims –in my opinion- unprotected to a certain extent.
You have given several seminars giving advice to UK law firms on this subject. What is your main nugget of guidance for such firms?
My suggestion is always to make sure that their medical experts include in their reports the information that is relevant for Spanish valuation purposes. It can make a very important difference in value.
We also keep reminding English lawyers that limitation dates in Spain are rather short. It is only one year for personal injury claims and it is not unusual that limitation dates are missed when the UK law firm is not familiar with Spanish law.
View profile David Sánchez Almagro
Fuente: Lawyer Monthly