Spanish Personal Injury Law. CLAIM FOR BEREAVEMENT / MORAL DAMAGES in a car crash, accidents, etc. Legal difficulties in the prove and assessment in Spain.

Sometimes people who have been thorough a lot of pain and suffering caused by a contractual or extra contractual responsibility, come to our office to see if they can, as personal injury lawyers legally apply for compensation for bereavement or moral damages.

In this sense and while looking through an interesting article by Mr Ramon Macia Gomezi and published in a legal web page, our aim today is to try to present our readers with a general, simple and accessible view of  the hazard of these damages.

Unlike material or property damages, bereavement or moral damages could be defined as a limitation involving the disturbance of the dignity or personality of the victim not included in the material damages.

Bereavement or moral damages by definition have no economic value, although it may be financially compensated as this is generally the only and most appropriate way to limit or balance the harm suffered or caused.

The following are normally considered elements of this damage: depression, low self esteem, guilt, shame, sorrow, inferiority, unsteadiness, appearance of compulsive behaviour caused by the offence, anxiety disorders and or anxious /depressive/sleep disturbances, dishonour, loss of prestige etc.

Damages from injuries or psychological deterioration are not included as moral damages when  are covered  by patrimonial damages.

One of the main problems about this type of damages is the assessment. Although in certain cases the existence of this type of damage is clear and apparent, there is not a clear previously assigned assessment therefore it must be the injured person whom will need to quantify the damage, that by their own nature cannot be previously determined with precise criteria etc. This situation leaves the assessment to the freewill and discretion of the judges.

This contrasts with the systems set forth by other countries that have tried to establish criteria to determine the assessment for moral damage such as the Colossus system applied in the United States, etc.

Also there is a current trend that advocates for the disappearance of the differences between bereavement and material damages; thus authors such as the aforementioned
Ramon Macia Gomezi and Mr Fernando Gomez Pumar, Professor of Civil Law understand that the compensation should be, in any case for the total damages caused, since the moral damages account in reality for the personal aspect of the patrimonial damages.

Therefore the absence of predetermined objective criteria that could help us assess the damages in a form accepted by the judges, personal injury solicitors and attorneys in Spain, Insurance Companies, etc., leaves the assessment and prove of the damages to the discretion of the judges within a Court proceeding, generating uncertainty and doubt in the injured at the time of the claim as he cannot find any scales, criteria or systems of predetermined assessments accepted by magistrates, companies, etc.

Should any reader be in this situation or similar please do not hesitate to contact us and the appropriate advice will be provided.

The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.

Carlos Baos (Lawyer)
Tel: 966 426 185
White & Baos 2012 – All rights reserved

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