European Legislation Tested Over Traffic Accident in Spain

Earlier this month, I nearly became the first lawyer in the country (and possibly in Europe) to test out a piece of European legislation before a judge. I say nearly because the case settled just 30 minutes before the trial was due to start.

The case concerned Mr X and Miss Y who were injured in a road traffic accident in Spain. They were on the return leg of a journey to Morocco where they had enjoyed a wonderful holiday. They were driving along the motorway when a recovery truck struck them from behind, causing their vehicle to veer off the motorway, over the crash barrier and roll several times before coming to rest upside-down in a ditch. Miss Y was able to crawl out of the vehicle but Mr X was trapped for nearly an hour. Both suffered injuries as well as financial losses.

I first saw Mr X and Miss Y early in 2009 following their return from Spain. Lanyon Bowdler  were instructed to pursue a claim for damages for personal injury and consequential losses. This would be the first accident abroad that we had been instructed on since the enactment of EC Regulation No 864/2007, also known as ‘Rome II’ which applies to accidents occurring after 11 January 2009.

If you are injured in a road traffic accident in a European Member State, it is possible to bring a claim in the courts of your home country. The law of the country where the accident occurred would govern all substantive issues in the case. This would include limitation (the time during which you must lodge your claim with the court) and liability (deciding who is to blame). However, all procedural matters would be governed by the law of the courts where the action was being heard.

Probably the biggest change introduced by Rome II was that the assessment of damages would now be considered a substantive issue. In the case of Mr X and Miss Y, this meant that although they were able to pursue their claims through the English court, Spanish law would determine the level of damages (Prior to Rome II, their damages would have been calculated according to English law).

There was lots of discussion among academics and Europe’s leading lawyers as to how exactly this would be done. How could we expect an English judge to award damages according to the law of a foreign country? Surely, we could not ask an English court to turn itself into a Spanish court? That would be impossible, what with differing rules of practice, evidence, procedure and not to mention completely different legal cultures.

Throughout the case, I was assisted by barrister, Mr Bernard Doherty. Mr Doherty is the author of the leading textbook, “Accidents Abroad – International Personal Injury Claims”. The approach we agreed upon was to obtain our medical evidence from English medical experts in the usual way. Upon receipt of all of the medical reports, we would then forward these to a Spanish lawyer who would then produce a report setting out how the injuries would be valued according to Spanish law. He would also advise whether claims could be made for the various financial losses put forward by the Claimants. We instructed De Cotta Law as our expert Spanish lawyers.

What I have learned from our expert Spanish lawyer is that, in Spain, damages are calculated according to the “Baremo Tables”. These prescribe a scientific approach whereby a daily rate is applied to each day that the Claimants are in hospital; each day that they are unable to work (‘dias impeditivos’ or ‘impeded days’) and each day that they are able to resume normal day to day duties, but are still suffering symptoms which have not yet reached an end point (dias non impeditivos or non impeded days). The end point might be complete recovery or alternatively a time at which the injuries become stable and permanent with no further recovery possible. Residual symptoms are then valued on a points system.

This system is very different to the English way of valuing damages and so it was vital that our Spanish lawyer had sufficient experience and standing to give an ‘expert’ opinion. At trial, the English judge would have to rely upon the evidence of the Spanish lawyer when deciding the level of damages.

In the case of Mr X and Miss Y, a dispute arose as to whether they were entitled to damages for ‘non-impeded days’. There were significant damages riding upon this.

It was vital that our English medical experts were given detailed guidance on how to prepare their reports in a way which would allow the Spanish lawyer to apply the Baremo Tables.  This required a great deal of assistance from the Spanish lawyer.

The arrangements for the trial were also different to that of a ‘normal’ personal injury claim. The Spanish lawyers (the Defendant also had instructed a Spanish lawyer) would be required to give evidence. This would take place through a live video link. Arrangements were made for each lawyer to attend a video conferencing suite and an interpreter would be in court to assist where any language difficulties occurred.

It became very clear throughout the case, that the system operating in Spain is procedurally very different to our own. In Spain, a report is often obtained from a court appointed ‘medico-legal’ expert. This is usually a doctor who has knowledge of and actually applies the Baremo Tables. Never in England would a medical expert be expected to calculate the damages. The obtaining and giving of evidence is a matter of procedure and should, therefore, be dealt with according to English rules. At an earlier court hearing, a District Judge held that the Claimants were entitled to obtain their own medical reports in the usual ‘English’ way. The Claimants did not have to obtain a report from a Spanish medico-legal expert.

The conflict between the Spanish and English way of doing things cropped up time and time again. Essentially, it is very difficult to apply English law to some aspects of the case and Spanish law to others. Without a case previously coming before the courts, it was very difficult to say how a Judge would approach the evidence. In the end, we were able to reach a settlement before the start of the trial which adequately compensated the Claimants for their injuries and losses.

The fact that I did not get to ‘make law’ which is, after all, what all good lawyers aspire to do, was disappointing. However, the end result for the Claimants was a good one and the experience I have gained will be invaluable to me and my clients in other ‘Rome II’ cases. As to how a Judge will interpret Rome II? We will have to wait and see….