If you have a vehicle and you are driving it, you are exposed to the risk of suffering a traffic accident, which is why it is of vital importance how to act if you have suffered an accident and have sustained minor injuries. This type of accident accounts for the highest percentage of accidents on our roads.

Beforehand, we would like to inform you that you do not have the duty to bear the injuries you have suffered as a result of a traffic accident for which you are not responsible. You are therefore entitled to compensation to compensate for the personal injuries you have suffered.

Exchange of information between the parties involved

The first thing you should do when you have an accident with your vehicle, or are hit by a car, is to exchange personal details, vehicle registration numbers and insurance companies with the other party. This would be normal, but up to 4 cases can occur after a traffic accident.

That the parties involved agree

The parties involved agree on what has happened and share their version of events, and this is reflected in the accident report. This must be signed by both parties to be valid, and each party must keep a signed copy.

The parties involved do not agree

In this case, the most advisable thing to do is to call the police so that they can make a police report. The negative side of this situation is that the management of the claim may be delayed, as the insurers must agree on who was at fault.

If no friendly report is made and the police are not called in

If there is no friendly report or police report and there is no understanding between the parties involved, it is obligatory to exchange information so that each party involved reports the accident to their insurance company. 

If the other party involved does not provide us with the data

If the other party does not cooperate in providing us with the information, it is essential that we at least take note of the registration or plate number in order to be able to identify the owner of the vehicle and the insurance company.

In the event that the other party involved does not agree and does not want to provide their details, the correct thing to do is to take note of their number plate so that we can report the accident to the insurance company and identify the vehicle of the other party involved.

Medical assistance

Secondly, it is of vital importance that you receive first medical assistance in any medical centre, within a maximum period of 72 hours from the occurrence of the accident.

Inform the insurance company of the accident

Next, call your insurance company to report the accident, explaining the dynamics of the accident and indicating if there are any injuries. The Insurance Contract Law establishes a period of 7 days to make this notification.

Compensation if there are injuries

Finally, you should know that you have the right to receive free medical treatment to heal your injuries, as well as medical assistance from the corresponding doctor until you are definitively discharged. 

This can be carried out in various clinics of your choice, depending on the proximity to your home. 

Once your injuries are stabilised and you have been discharged, your injuries can be assessed and it is time to claim your compensation.

After 20 years of applying an obsolete system for the valuation of damages caused to people in traffic accidents, on 1^st January 2016, a new system came into force (Law 35/2015, of 22^nd September, reforming the system for the valuation of damages caused to people in traffic accidents) which came into force, correcting a large part of the previous one, providing us with a complex system composed of tables and concepts, based on the circumstantial casuistry that could occur in the victims.

The system advocates, this time more correctly, as fundamental principles:

1. Principle of full reparation: it assumes full indemnity for the damages caused.

2.     Principle of articulation: it requires that patrimonial and non-patrimonial loss be assessed separately and, within each other, the different concepts.

What elements make up the compensation

First of all, it is important to recognise all the items included in the Schedule to compensate those damages which, consequently, are liable for compensation.

The structure of the Schedule is clear, concrete and simple, leaving little room for discretion, offering a method of compensation that starts with whether, after the traffic accident, the object of assessment is death, permanent incapacity or sequelae or temporary incapacity. In each of them, there are 3 concepts that are the object of compensation; the basic personal injury, the particular personal injury and the patrimonial loss.  Below we show the structure of the Schedule.

CALCULATION OF COMPENSATION FOR PERSONAL INJURY IN CASES OF TEMPORARY DISABILITY AND SEQUELAE

This section will focus on the calculation of compensation in situations 2 and 3, after-effects and temporary disability. The case of death, due to its complexity, will be dealt with in a separate post later on.

- TEMPORARY INCAPACITY. WE TURN TO TABLES 3.A, 3.B and 3.

Table 3 (A, B and C) values the damage caused within the period from the time of the accident until the date of injury stabilisation or medical discharge, whether personal, assigning an amount per day depending on whether it is classified as basic, moderate, serious or very serious. And patrimonial, depending on the amounts that are accredited as having been borne.

-AFTEREFFECTS or SEQUELAE. Tables A, 2. B and 2.

Sequelae are the physical, intellectual, organic and sensory impairments and aesthetic damage that derive from an injury and remain after the healing process is complete. And for this, we turn to Table 2:

TABLE 2.A.1 corresponds to the medical scale, and the BASIC PERSONAL INJURY.  

Locate the sequela in question within the Medical Scale, and observe that a range appears for each one of them. This is the score that corresponds to that sequela, and within which the corresponding number of points will be assigned.

Once the score has been assigned, we turn to the following table.

TABLE 2.A.2. ECONOMIC SCALE

This table, which is easy to apply, shows the economic valuation of our injuries, according to the number of points assigned to the specific injury and according to the age of the injured person.

TABLE 2.B. PARTICULAR PERSONAL INJURY

Table 2.B, will be used only in those cases in which the sequela suffered exceeds a certain number of points. It is a table that compensates in an extra way those cases in which the damages are of greater severity.

TABLE 2.C. PECUNIARY DAMAGE or PATRIMONIAL LOSS

Table 2.C guarantees compensation for present and future pecuniary damage, if any, caused to the injured party.

And finally, a simple example:

A 31-year-old male cook with 2 sequelae and 95 days of temporary incapacity, 30 of which he was on sick leave, during which time he received his full salary.

We turn to Table 3 to quantify the period of temporary incapacity, i.e. the number of days.  In this sense, 30*64.25 and 65*37.06 = 4,336.4 euros.

On the other hand, we turn to Table 2, first to the medical scale to identify our sequela, then to the economic scale to quantify it. In this way, we extract that a person of 31 years of age with two points of sequela corresponds to 2,073.93 euros.

Since in our example there are no other damages, the total amount to be compensated is 6,410.33 euros.

One of the most disabling injuries that a person can suffer after a traffic accident is quadriplegia. This condition damages severely the spinal cord above the thoracic vertebra and although it can present itself in many forms, the most common is the irreversible, partial or total paralysis of the trunk and limbs. Its consequences not only affect the victim for life, but also his or her family and relatives, which is why calculating the amount of compensation for quadriplegia after a traffic accident is very complex.

If you want to know what compensation for quadriplegia consists of, here are the most important aspects to take into account in this type of claim.

What is the compensation for quadriplegia in an accident? 

Quadriplegia is synonymous with disability, as it is one of the most serious spinal traumas that exist. For medical science, the possibilities of reversing the extent of this injury are very low or practically nil, although in specific cases, some victims may recover a fraction of mobility in some of their limbs after a tough rehabilitation process. 

Therefore, quadriplegia means a radical change in the life of the injured people and that of their relatives, as they need constant care and attention in their day-to-day life. For this reason, Law 35/2015 in the schedule of compensation for traffic accidents contemplates different items for calculating compensation for quadriplegia, which we will explain below. 

Compensation for quadriplegia that can be claimed for

In a claim for compensation for tetraplegia, the affected person can request compensation for temporary injuries, for the time that elapses between the traffic accident and the stabilisation of the injury, and also for permanent injuries or sequelae.

In addition, compensation can also be claimed for pecuniary damage. That is to say, for the medical expenses incurred since the accident occurred and for those that you will have to pay for the rest of your life, as well as for the income that you will no longer be able to earn because you will no longer be able to carry out your professional activity as before the accident.  

Temporary injuries 

Compensation for temporary injuries compensates for the damage caused to the victim during the period of healing or stabilisation of his or her injuries. If the injured person suffers a quadriplegia, he/she is entitled to claim this type of compensation. 

The amount will depend on the number of days and the type of damage caused to the victim:  

• Days in the ICU: very serious injury.
• Days of hospitalisation: serious injury.
• Days of incapacity: moderate harm.
• Non-impeding days: basic injury.

In addition, for each of the operations or surgical interventions required by the injured party, compensation may also be requested. The amount will depend on the group of surgical interventions to which each operation belongs.

After-effects (Particular Damage - Table 2.A) 

Although quadriplegia can be compensated as a temporary injury, once it is stabilised, since it causes irreversible damage, it becomes a permanent injury or sequela. Therefore, the affected person is also entitled to claim compensation for this concept.   

The valuation of the after-effects of quadriplegia depends on the area of the spinal column that has suffered the damage. According to the scale, there are three zones and depending on these, the injury is scored from 0 to 100:

• From vertebra C1 to C4 (no mobility): 100 points.
• From vertebrae C5 to C6 (mobility of the shoulder and scapular girdle): between 96 and 98 points.
• From vertebrae C7 to C8 (mobility of the upper limbs): between 93 and 95 points.

In addition, the scale establishes an increase in the amount of this compensation depending on the particular damage that the sequela cause to the victim. These damages are:

• Additional moral damages for psychophysical harm.
• Complementary moral damages for aesthetic damage.
• Moral damages for loss of quality of life.
• Moral damages for loss of quality of life of family members.
• Loss of the foetus as a result of the accident. 
• Exceptional damage. 

Patrimonial loss (Emerging damage - Table 2.C). 

In a compensation for quadriplegia, compensation can also be claimed for the pecuniary loss caused to the injured person. In other words, for all the costs of health care, hospitalisation, pharmaceutical treatment, etc., that the injured person has needed during the healing period of the temporary injuries. 

The compensation in this case will be paid directly to the hospital that has provided the medical care, so that the injured party does not have to pay for them.  

Likewise, within the compensation for pecuniary damage, all the future expenses that the injured person will have to bear throughout his life will be included, given his or her after-effects. This amount will be paid directly to the victim.  

These future expenses are: 

• The prostheses and orthosis required by medical prescription.
• Physiotherapy and occupational therapy treatments required.
• Expenses caused by the loss of personal autonomy to carry out the essential activities of ordinary life.
• Instruments, equipment or systems prescribed by medical report to alleviate the limitations caused by the disability.
• Adaptation of the home to adapt it to the needs of the injured person.
• Adaptation of the vehicle used by the injured person or the cost of the journeys. 
• Help from a third person in the home to carry out non-medical activities. 

The amounts corresponding to all these expenses are included in Table 2.C of the scale included in Law 35/2015, of 22 September. 

Responsible for awarding compensation 

As in any other compensation for a traffic accident, the insurance company of the vehicle that caused the accident will be responsible for compensating the victim of tetraplegia for all these concepts we have seen. 

Income Loss 

As is obvious, a person who suffers a quadriplegia cannot return to work as he/she did before the traffic accident. This entails an additional financial loss caused to the victim, whose compensation must be added to the consequential loss mentioned above. 

We are talking about Income loss, which refers to the income that the person will no longer receive as a consequence of the sequela of their injury. 

The amount of this compensation depends on the employment situation of the injured person at the time of the accident: 

• If he/she was working, he/she will be granted permanent incapacity:
• Partial, if he can carry out certain tasks of his professional activity.
• Total, if he or she is unable to carry out his professional activity.
• Absolute, if he or she is unable to carry out any type of professional activity.

• If you were not working, the scale includes an item for incapacity to enter the labour market.

To calculate the amount of compensation for income loss, according to Law 35/2015, it is necessary to take into account what the injured party's income was before the accident. If the injured party was unemployed, the unemployment benefits they were receiving will be used for the calculation and if they were not entitled to benefits, the minimum annual interprofessional wage will be considered as income.

When you are in the process of claiming compensation, sometimes differences arise between the insurance expert's and the victim's version of the extent of the injuries. In these cases, it is possible to request the intervention of a forensic surgeon to examine the injured person and make a report. The role of this forensic report in a traffic accident is very valuable, as it is able to relate the injuries and after-effects that a person has to what happened in an accident. 

Until 2016, the only way to obtain a forensic report free of charge was if the road traffic accident was being investigated in criminal proceedings. However, since the entry into force of Royal Decree 1148/2015 of 18^th December, any victim of a car accident has the possibility of requesting a forensic report free of charge and out of court to prove the extent of their injuries.

So if you are currently processing a claim for compensation for a traffic accident, here we explain everything you need to know about the forensic report. 

What a forensic report is and why it is important

A forensic report is a document that links the injuries sustained by a person to what happened in a traffic accident. For this, the medical surgeon takes as a reference the tests that have been carried out on the victim, the injuries diagnosed and the rehabilitation period needed to recover from them. In addition, the forensic report also includes the functional, psychological or aesthetic sequelae of the injured person once rehabilitation has been completed. 

This report is an objective document, since:

• Both parties, the injured party and the insurer, have the right to request that any aspect they consider appropriate be included in the report.
• Neither the victim nor the insurer can choose the forensic surgeon who will carry out the examination and the report.
• The same doctor is never assigned by default to cases from the same insurer. 

Therefore, the forensic report is essential because: 

• It allows the compensation calculators to better quantify the extent of the injuries.
• It helps the injured party to obtain a fairer compensation in accordance with the damages suffered. 
• In the event of having to go to court, the forensic report provides the court with more precise and detailed information, from a scientific and medical point of view, about the events that occurred.

Getting a forensic report? 

To obtain a forensic report, it is necessary to submit a request to the Institute of Legal Medicine and Forensic Sciences of the place where the accident took place or where the victim's home is located.

The request can be made by the injured party, the insurance company or both parties by mutual agreement. However, when it is the insurance company that requests this report, it must have the authorisation of the victim. 

Together with the application, the following documents must be submitted: 

• The reasoned offer presented by the insurer.
• The medical documentation that the injured person has and that issued by the insurer.
• Any other documentation, photographs, reports, etc., that may be useful. 

 Before accepting the application, if the Institute of Legal Medicine notices any error or mistake, it can require that it be rectified within 10 days. If everything is correct, it will summon the injured person for the examination and will inform the insurer. 

During the month following the examination, both the victim and the insurance company will receive the report from the forensic institute and both will have seven days to request any clarification or correction they consider appropriate.

Contents of the forensic report? 

The forensic report serves as a basis for the insurer to submit a second reasoned offer or for the victim to decide to initiate a legal claim, therefore it should include the following information: 

• The details of the injured person, the insurance company and the forensic surgeon who prepared the report.
• An explanation of the circumstances in which the accident occurred and the most relevant details and facts of the accident. 
• The examinations, tests and other assessments carried out on the injured person during the period of medical care that have been taken into account in the report.
• A detailed explanation of the extent of the injuries suffered by the victim, the after-effects and any other damage that the victim may suffer for life.   
• The place, date and time of the examination. 

Who assumes the costs of the forensic report in a compensation claim? 

It will be the insurer of the vehicle responsible for the accident who will be responsible for paying the cost of the forensic report, never the injured party.

However, if the insurance company denies the responsibility of its insured in the accident or it is demonstrated that there is no relation between the accident and the injuries of the victim, or that these are of lesser severity; the intervention of a forensic surgeon cannot be requested.

The alternative is for the injured party to go to a private medical expert and pay for the report out of pocket in order to be able to file a lawsuit against the insurer. In this case, if necessary, this expert can later go to court to ratify his report, unlike the forensic doctor. 

How are the damages quantified in the case of a civil claim?

In order to initiate a civil claim, all the damages suffered by the victim as a result of the traffic accident must be quantified. This quantification is made on the basis of the medical expert's report and the provisions of the accident scale.

For the calculation of damages, a distinction must be made between: 

• Basic personal injury. Here compensation is paid:

• The death of the victim.
• Temporary injuries, depending on the number of days it has taken to heal and the loss of quality of life during this time.
• The after-effects or sequelae, according to the level of help needed for personal autonomy. 

• The particular personal injury. In this case, the specific circumstances of the injured party are taken into account to establish an amount.
• The pecuniary damage. Here it is necessary to differentiate:

• Loss of earnings or loss of income of the injured party.
• Emerging damage or expenses derived from the accident.

Can the insurer lower the amount of the reasoned offer if the expert examination indicates fewer injuries? 

In the event that the forensic surgeon in his report assesses that the victim has fewer injuries and/or sequelae than the insurer's expert in his documentation indicates, the insurance company should not lower the amount of compensation proposed in the reasoned offer. If it did so, it would be acting against the information that it itself has used and provided. 

However, it is not very common for the coroner's examination to determine that the victim's injuries are less than what is reflected in the previous medical documentation. In any case, to avoid this, it is advisable to accept the reasoned offer as payment on account and then request the forensic medical report. 

If the reasoned offer is accepted, do I lose my right to make a claim out of court? 

Not in any case. The acceptance by the victim of the amount proposed by the insurer in the reasoned offer is not a waiver of his or her right to continue claiming, out of court or in court, a fairer amount to compensate for the injuries and damages he or she has suffered in a traffic accident. 

Therefore, after acceptance of the reasoned offer, the insurance company cannot require the claimant to sign any kind of waiver document.   

How much does a medical expert's consultation cost and who has to pay for it? 

If the victim of a traffic accident cannot request the free forensic report, for the reasons given above, then he or she will have to go to a private medical expert if he or she wants to continue with the claim for compensation. In this case, as it is a personal decision, the claimant will have to pay the cost of the report out of pocket.

How much it costs to consult a private medical expert and obtain a report depends on the individual professional. We therefore recommend that you seek the advice of a lawyer specialising in compensation claims, as skimping on this can be counter-productive.

Which doctors can issue an expert report 

In principle, Spanish law stipulates that any medical graduate can produce an expert report. However, not all doctors do so. Doctors with clinical specialties, although they have the capacity to give an expert opinion on any health or scientific issue, have been trained to diagnose and treat patients.   

Therefore, a judge will always give more credibility to a doctor who specialises in forensic and legal medicine, and not all medical experts are.   

What to consider when hiring one 

Choosing the right medical expert is essential if you want to get a fair road traffic accident compensation. Here are some of the considerations you should take into account when hiring one: 

• It is important that they do not work for any insurance company or assistance service linked to them, as in that case they cannot produce expert reports.
• You have to take into account both their professional career and prestige, as well as their training, as not all experts are specialists in legal and forensic medicine.
• Ideally, they should transmit confidence from the outset. 
• In the event that you have to go to court, it is good that you have a certain amount of experience and that he or she has the communication skills to specify, defend and explain your opinion, as well as the ability to respond and improvise.

Importance of the medical history in expert evidence

In a claim for compensation for a traffic accident, it is up to the victim to prove what happened and for this, the medical history is essential because it is the basis on which expert evidence is carried out. 

The medical history is the set of medical documents that have been generated as the injured person has received medical care after the accident with the aim of healing or stabilising their injuries. For this reason, they are undoubted proof of the injuries, diagnosis and treatment received by the injured party in an accident.

The more complete the medical records provided by the claimant in his or her claim against the insurer, the better the chances of obtaining a fair compensation. Thanks to it, your lawyer will be able to defend your position better and the judge will have objective information to reconstruct the facts, to check if the damage caused could have been avoided, to determine if there are any after-effects and how they will affect your life, etc.

For many people it is already their favourite means of transport in the city. However, for the vast majority of them, many doubts still arise when they face the situation of having to file a claim for compensation for an electric scooter accident. The reason is that until January 2021, when the regulation on personal mobility vehicles (VMP) came into force, there was no specific regulation in these cases, so it was necessary to resort to the different municipal ordinances and regulations of each city council.

In this article, we explain how to act if you suffer an accident on an electric scooter. 

Accident as an electric scooter rider

As in any other traffic accident, if as the driver of an electric scooter you are hit by a motor vehicle and it is proven that you are not at fault, you have the right to claim compensation from your insurer for all the personal and material damages caused to you. On the other hand, if you are at fault, you cannot claim any amount. 

Also in accidents involving an electric scooter, there is "contributory fault". In other words, when it is not clear who is solely liable, both the scooter driver and the driver of the motor vehicle can claim compensation from the insurance company. The amount they will receive will be proportional to the degree of fault they each have in the accident.   

However, in the event that the other party involved is another vehicle which, like the electric scooter, is not obliged to have liability insurance, then a legal claim will have to be made against the other driver, who will be liable with his or her personal assets.

Claiming compensation 

As in any accident, it is very important to clarify the circumstances and liability in order to know who to claim compensation from. 

The way in which financial compensation is calculated is the same in an electric scooter accident as in any other traffic accident. It will be necessary to use the damage assessment system established by Law 35/2015, of 22^nd September. 

This system establishes the following items for which you can claim if you suffer a scooter accident. 

Compensation for temporary injuries in scooter accidents 

In this item, the victim of a scooter accident will be compensated for the days that pass since the accident occurred, until the date on which he/she finishes his/her rehabilitation treatment for the temporary injuries suffered or medical discharge. 

According to the accident scale, each day will be valued with a different amount depending on the damage it entails for the injured party. For this purpose, the days are classified as follows:

• Days of very serious particular harm: when there is admission to the ICU.
• Days of serious particular harm: the days of hospital admission.
• Days of moderate particular harm: when the injured person is on sick leave.
• Days of basic personal injury: all other days.

In addition, the injured person will also be financially compensated for each of the surgical interventions that he/she needs.

Compensation for after-effects of a scooter accident

The compensation for after-effects or permanent disability will compensate the physical, aesthetic and psychological damages that remain after the healing or rehabilitation treatment has been completed. 

The after-effects are assessed on the basis of a points system in the accident scale. This table is used by a doctor specialised in the valuation of the injury to draw up a report in which he assigns a determined score to each after-effect.

Based on this report and taking into account the age of the injured party, the amount to be claimed under this heading will be established. In addition, an additional amount can be claimed in case the victim's personal autonomy has been affected. This amount will depend on whether the loss of quality of life is very serious, serious, moderate or slight. 

Compensation for patrimonial loss 

Here, under this heading, the victim will be compensated for the financial loss suffered as a result of the scooter accident. 

When claiming compensation for patrimonial injury, we have to take into account three types of damage:

• The material damage caused to the scooter or other personal belongings that the victim was carrying at the time of the accident and which were damaged.
• Emerging damage, which refers to all the health care expenses incurred by the injured party during the healing period, as well as those resulting from the after-effects.
• Loss of earnings. That is, the income that has ceased to be received after the traffic accident as a result of the injuries suffered.

Example of compensation 

Here is an example of compensation for an electric scooter accident received in 2021. The schedule is updated every year, so this amount may vary at present. 

While riding his scooter, J. S., who was 35 years old at the time, was hit by a car that ran a stop sign. As a result, J.S. suffered a series of injuries for which he received the following compensation: 

• Moderate personal injury (days off work): 61 days x 54.78 €/day = 3,341.58 €.
• Basic personal injury (remaining days until rehabilitation is completed): 61 x 31.61 €/day = 1,928.21 €.
• After-effects: 

• Pain in shoulder (3 points) = 2.676,82 €.
• Slight aesthetic damage (4 points) = €3,647.05

• Patrimonial Injury:

• Repair of scooter and helmet = 300 €.
• Loss of earning = 500 €.
• Emerging damage (pharmacy expenses) = 120 €.

The total amount of compensation was €12,513.66.

How long does it take to receive compensation? 

The time it takes for the victim to receive compensation for the electric scooter accident depends on two factors:

• How long it takes to recover or stabilise the temporary injuries sustained and therefore to obtain a medical discharge.
• The willingness of the insurance company.

Once the recovery treatment is completed, then the after-effects, if any, and the extent of the patrimonial injury must be quantified. 

After submitting the claim for compensation to the insurer, the injured party will receive a reasoned offer from the insurer. Depending on whether or not the offer is accepted, the time to receive compensation will vary.

If the victim accepts the insurance company's offer, he will receive his compensation within 30 days maximum. If, on the other hand, the victim considers that the offer does not correspond to the damages suffered, he or she will have to claim through the courts. In that case, the recovery may be delayed for months or years depending on the court and whether the insurer wants to settle out of court.   

Problems in electric scooter accidents 

Following the boom of electric scooter in recent years and the consequent increase in the number of accidents involving electric scooters, a number of problems have been identified which are common in this type of accident and which have an impact on the claim for compensation:

• The injuries that victims often suffer are more similar to those of a motorcyclist than to those of a cyclist. This will therefore influence both the compensation for temporary injuries and the compensation for after-effects.   
• Lack of knowledge of the rules applicable to electric scooters. Many scooter riders are minors who do not know the rules of the road. In these cases, it is their legal guardians who must take responsibility for any damage they cause. 
• Speeding, riding without wearing a helmet, listening to music or without reflective or audible elements that warn other drivers of their presence. In the event that liability is attributable to negligence on the part of the scooter driver, he/she will lose the right to claim any type of compensation. 

Advice after an electric scooter accident

We give you the following advice so that in the event of a electric scooter accident, you know what to do: 

• No matter if you have not suffered serious injuries, call 112 or go to the hospital within 72 hours. Damage often appears within hours of the accident. 

• Sometimes it is difficult to determine responsibility, so call the police or the Guardia Civil to draw up a report and clarify the causes and responsibility for the accident.

• It is advisable to have witnesses and collect their contact details in case their statement is necessary.

• If the driver of the accident tries to escape, try to memorise the number plate or the vehicle's characteristics.

LEGAL DEFENCE is a clause contained in the vast majority of motor insurance policies.

First of all, we must know that when we suffer a traffic accident, we have the right to choose a private and specialised lawyer, instead of being represented by the company's lawyer, as the latter is just that, the company's lawyer, not the company's insured.

Secondly, we must know what legal defence is and what it is for. Legal defence is a guarantee, coverage or economic item reserved in our car policy to pay the fees of the private lawyer that we choose. In this way, we can choose a private lawyer, trustworthy and specialised in the matter, so that they can represent us in the management of our accident, practically free of charge. 

These clauses usually establish a maximum limit of coverage in most policies, to be determined according to the company and the type of policy. 

In the event of a conflict of interest, the Insurance Contract Law prevents the application of a limit to the legal defence cover. We are faced with a conflict of interests in claims in which, for example, there are two vehicles involved, both insured with Mapfre. 

In short, the legal defence clause is an important coverage when dealing with a traffic accident, as it allows us to choose a private lawyer specialised in the matter to represent us and look after our interests at a minimum cost or zero cost.

Whiplash is one of the most common injuries suffered by traffic accident victims.

On 1 January 2016, Law 35/2015, of 22^nd September, on the reform of the system for the assessment of damages caused to people in traffic accidents, came into force.

This legislation marked a turning point in claims for compensation for traffic accidents, favouring the successful outcome of accidents with major injuries and deaths, to the detriment of those injured who suffer the famous whiplash, so common in medium to minor traffic accidents, making it difficult from that moment on to close compensation claims for this injury.

To a large extent, Article 135.2 of Law 35/2015 is responsible for this situation:

 "2. The sequel deriving from a minor cervical traumatism is compensated only if a conclusive medical report accredits its existence after the period of temporary injury."

This means that, when applying for sequelae (not days of temporary incapacity) for a minor cervical injury, we find ourselves with a barrier, which did not exist before the reform. That is, the conclusive medical report.

It so happens that the definition of what is considered to be a conclusive medical report is a controversial issue to this day, on which our Courts have pronounced on different lines, without there being a unanimous Doctrine on the matter or a clear concept. 

That is why, at Trafilex, aware of the complex situation in which the new law places us with regard to whiplash or neck pains, we meticulously prioritise medical attention, and with it the evolution and discharge reports issued by our rehabilitation clinics that treat our clients. Reports which, in the opinion of our technical team, are really the Concluding Medical Report mentioned in the law, and therefore the fundamental basis for claiming the existing sequelae at the time of stabilisation of the injury, so that the injured person receives the compensation for whiplash that really corresponds to him/her.

Many people are unaware of what a reasoned offer for a road traffic accident is until they are forced to initiate a claim for compensation. The term is relatively new, it was first included in the 2016 schedule of awards and was conceived as a way to try to settle out of court disputes between parties involved in a road traffic accident.

If you are one of those who have never heard of it, we have prepared this guide so that you know what a reasoned offer consists of, what requirements it must meet and what options the victim of an accident has after receiving one.

What is a reasoned offer? 

A reasoned offer is a formal document drawn up by the insurance company after receiving a claim for compensation for a traffic accident. In this document, the company acknowledges the facts and the responsibility of its insured, and at its discretion, makes an economic proposal to the victim as compensation for the injuries and damages suffered in the accident. 

This offer, as its name indicates, must be motivated. That is to say, the insurance company must explain why it offers such an amount and justify it by means of medical reports and data. If this is not the case, the offer will not be considered valid. 

After receipt, of course, the injured party will have to evaluate the offer. 

Requirements according to Article 7 LRCSCVM 

According to article 7 of the Law on Civil Liability and Insurance in the Circulation of Motor Vehicles, a reasoned offer must meet a number of requirements: 

• Present an economic proposal to the victim for the damages suffered as a result of the accident, which is in accordance with the criteria set out in the accident scale of Law 35/2015, of 22^nd September.
• In the event that there is concurrence of fault, the offer must indicate the percentage of the compensation that the insurer assumes.
• Detail and break down which documents, reports or data are available to be able to assess the injuries and damages of the claimant. In addition, you should indicate on which ones you have based the calculation of the economic proposal presented. 
• Include the latest version of the medical report that describes the extent of the injuries sustained in the accident, how many days it took to heal, whether there are any after-effects, etc. 
• If both personal injury and property damage have occurred, the offer should assess them separately and present the amount of compensation for one case and for the other.
• It should state that acceptance of the offer by the injured party does not mean that he waives the right to take legal action in the future.
• Indicate the form of payment of the compensation, which may be in cash or any other means that guarantees the immediate availability of the amount.

Medical report 

Medical reports are essential for the victim of a traffic accident to receive fair compensation, as they serve as a basis for calculating the amounts that correspond to each of the items of which compensation is made up. 

For this reason, it is obligatory for the insurance company to accompany the reasoned offer with a medical report that justifies the quantification of the temporary injuries, the after-effects and the pecuniary damage that has been caused. However, the medical report is not always attached, since if the claim coincides with the amount offered, it is understood that the medical documentation provided by the injured party is sufficient. 

Deadline insurance company 

As soon as a claim for compensation is filed with an insurer, the insurer has a period of three months from that date to submit a reasoned offer to the claimant. 

Even if the victim of the traffic accident does not file a claim, from the moment the insurance company becomes aware of the existence of a claim, the law obliges it to assume the compensation that may correspond. Therefore, it must monitor the facts until the injured party is medically discharged.

The injured party has one year to be able to claim compensation, counting from the stabilisation of the injuries or medical discharge. 

Reasoned offer out of time 

If the insurer does not submit a reasoned offer within three months after receipt of the claim and there are no reasons for the delay, then the insurer is in "default". This means that in addition to the compensation of the damages due to the victim of the traffic accident, interest for late payment will have to be added to this amount. 

Difference between a reasoned offer and a reasoned reply 

When an insurer receives a claim for compensation for a traffic accident, the claimant may receive two types of reply: a reasoned offer or a reasoned reply. 

The main difference is that the reasoned offer contains a proposal for compensation to settle the dispute between the parties involved in a claim and the reasoned reply is a statement of reasons why a reasoned offer cannot be made, either temporarily or permanently.

Like the reasoned offer, the reasoned reply also has to meet a number of requirements:

• If the reason is that the insurance company needs more time because it is complex to determine the amount of compensation or because the injured person is still undergoing rehabilitation, then the reasoned reply must include a commitment to submit a reasoned offer as soon as possible. In addition, the insurer is obliged to report every two months on the status of the file.
• If the reason is that it denies the responsibility of its insured for the claim or anything else in order not to pay compensation, the company's reasoned reply will make it clear that it refuses to meet the claim for compensation definitively.

Sometimes, in cases where the healing period of the injured party is undetermined, given the seriousness of his injuries, insurers use the reasoned reply to make a partial offer of compensation to the victim. In this way they avoid interest for late payment on those sums already advanced.

Am I obliged to accept the reasoned offer made by the insurance company?

A victim of a traffic accident is under no circumstances obliged to accept the reasoned offer made by the insurance company.

Once the claimant of the compensation receives the reasoned offer, he/she must thoroughly review whether the financial compensation is in accordance with the traffic accident scale, according to the injuries and after-effects suffered. It is advisable that this review is done with the help of a lawyer specialised in the matter.

If the interested party finally decides not to accept the offer proposed by the insurer, then there are two possible ways to continue with the claim for compensation, which are the following:

Appraisal report to the Institute of Legal Medicine 

There is the possibility of requesting a valuation report from the Institute of Legal Medicine and Forensic Sciences.

In this report, the forensic doctor will determine whether there is a link between the victim's injuries and what happened in the accident. To do so, he/she will take into account the injuries sustained, the diagnostic tests carried out and the time required for recovery or rehabilitation. It will also indicate whether there are any functional, psychological or aesthetic after-effects and will make an assessment of these in order to establish the compensation that the injured party should receive. 

It is important for you to know that this report:

• This can be requested by the injured party or by the insurer in agreement with the injured party. If it is the company that wants to make the request, it must have the claimant's authorisation and have previously submitted a reasoned offer. 
• There is no cost for the victim.
• The doctor who will carry out the report is impartial and independent of both the company and the injured party.

The request for a forensic report obliges the insurer to submit a second reasoned offer within one month of the report being issued. 

Legal action against the insurance company of the vehicle responsible for the accident

Once the deadline for submitting a reasoned offer has expired or if after having received it, there is no agreement on the part of the injured party, he can directly file a lawsuit against the insurance company of the vehicle responsible and/or against its driver.

In order to initiate legal action, it is essential to have the following documentation:

• The claim filed with the insurer.
• The reasoned offer received, if applicable.
• A medical report from a private expert who can attend the trial to ratify if necessary.

As opposed to the option of requesting a forensic report from the Institute of Legal Medicine, the judicial route will involve a financial cost for the claimant, as he/she will have to pay the fees of the expert who carries out the report and of the solicitor, if the amount claimed exceeds €2,000. In addition, there is a risk of being ordered to pay costs and having to pay the other party's legal costs as well. Therefore, if you want to be sure that you make the best decision, always rely on the advice of expert traffic accident compensation lawyers, such as those at Trafilex.