Many people are unaware that they are entitled to compensation if, after suffering serious injuries in a traffic accident, they need an operation. Compensation for surgery due to a traffic accident is contemplated in Law 35/2015, of 22^nd September, which is why it was included for the first time in the 2016 schedule of rates. 

This type of compensation is formally called "personal injury due to surgery". It is included in the item intended to compensate the basic personal injury, just like the compensation for days of admission to the ICU, hospital admission or days of sick leave. 

We want to answer all your questions, so we have prepared this guide to explain everything you need to know about compensation for surgery.

What is considered a surgical operation? 

Although it is commonly called surgery, it is actually correct to speak of an operation or surgical operation, since it involves operating, either totally or partially, on a wound or injury caused in this case by a traffic accident. 

The aim of a surgical operation is to diagnose, treat or rehabilitate the damage, regardless of whether its extent is greater or lesser, with the help of specialised instruments, local or general anaesthesia, and the necessary disinfection and sterilisation measures.  

How is compensation for surgery in a traffic accident calculated? 
 

According to the system for the valuation of damages caused in traffic accidents, the calculation of the compensation with which the injured party will be compensated for each of the surgical operations required will depend on their complexity, whether their life is in danger, the type of anaesthesia to be used and the technical characteristics of the operation.

Article 140 of Law 35/2015 of 22^nd September includes a table indicating a minimum and a maximum amount for each type of operation. According to this, each surgery can be compensated with a minimum of €400 and a maximum of €1,600.

Therefore, in order to calculate this type of compensation, it is very important to determine which Surgical Operation Group the operation belongs to, so below we will see what this is and how it works.

Group of surgical operations and how it works 

Taking into account what we have seen in the previous section, a Group of Surgical Procedures is a category in which a series of operations or procedures are classified according to their characteristics, complexity, etc. Therefore, in order to be able to calculate the exact amount of compensation, it is necessary to classify the procedure suffered by the victim in a specific group.  

For this purpose, the Terminological Classification and Codification of Medical Acts and Techniques establishes nine groups or categories, as follows:

• Group 0 (from 400 to 500 €): suture of wounds or treatment and cleaning of burns.
• Group 1 (from 501 to 600 €): simple bone fracture or extraction of foreign bodies in the face and neck, among others.
• Group 2 (from 601 to 700 €): among others, suture of serious wounds, muscle tears or orthopaedic mobilisation of shoulder, knee, etc., under anaesthesia.
• Group 3 (from 701 to 850 €): muscle tears, medium burns or joint injuries without fracture, among others. 
• Group 4 (from €851 to €1,000): including tendon ruptures, ligament reconstruction, open fractures or amputation of limbs.
• Group 5 (from €1,001 to €1,150): serious fractures or dislocations, herniated discs, etc.
• Group 6 (from €1,151 to €1,300): bone, muscle or skin grafts, among others.
• Group 7 (from €1,301 to €1,450): transplants and complex reconstructions, among others.
• Group 8 (from €1,451 to €1,600): surgical correction of the spine, reimplanted limb, among others. 

However, it is sometimes difficult to classify a surgical operation in a specific group, which is why the procedure of a medical expert and a lawyer specialising in road accident compensation is necessary. 

Can surgical operation overlap with other concepts? 

Compensation for surgical operation is an autonomous and independent item within the section that compensates the basic personal damage suffered due to temporary injuries caused by a traffic accident. That is to say, this concept does not overlap with any other concept, therefore, the days of hospitalisation or the sequelae that are a consequence of this operation must be valued and compensated separately under other items. 

Most frequent road traffic accident injuries requiring surgery 

In traffic accidents, whether by car, motorbike or moped, there are always a series of injuries that are repeated more frequently and that usually require surgical operation:

• Concussions and other head contusions.
• Nasal fractures and severe blows to the face.
• Simple or open fractures, especially in the lower limbs. 
• Burns of varying degrees. 
• Crushing or amputation of a limb.

Different surgeries, separate compensation. 

Sometimes, there are injuries that require more than one surgical intervention for their treatment, stabilisation or rehabilitation. Therefore, the injured person can claim compensation for each of the operations needed to repair the damage suffered in a traffic accident. Furthermore, there is no maximum number of operations that can be compensated, but rather each and every one of them can be claimed.

Last December, Congress passed the modification of the Traffic Law that will come into force on 21^st March 2022.

The approved reform revises the penalties applied since 2015 for offences that result in a loss of points on the driving licence and toughens some of the fines provided for. In addition, it establishes a single two-year period for recovering lost points and it is also committed to providing driving courses to raise drivers' awareness of the importance of road safety.

Here we tell you how the new Traffic Law comes into force and what changes will take effect from next March.

It entries into force on 21^st March 2022

The reform of the Traffic Law was approved on 3^rd December 2021 and published in the Spanish Official Gazette (BOE) on 21^st December. In the text it was mentioned that the new traffic regulation comes into force three months after its official publication, therefore, the new sanctions will start to be applied on 21^st March 2022.

However, you should know that there are some modifications that are already being applied since December.

What changes with the new traffic law

One of the most important changes introduced by the amendment to the Traffic Act is the ban on cars and motorbikes overtaking on conventional roads if the speed limit on the road has to be exceeded. In other words, it is no longer permitted to exceed the speed limit by up to 20 km/h in order to overtake.

In addition, with the aim of improving road safety and protecting the most vulnerable groups, the new law establishes that on roads with more than one lane in each direction it is compulsory to change lanes to overtake cyclists and mopeds.

Likewise, passenger transport vehicles registered from July onwards will have to compulsorily incorporate an anti-starting breathalyser. In addition, transport and goods companies will be able to access a register of professional drivers to check whether their employees have a valid driving licence.

Increased loss of points for existing offences

As far as penalties are concerned, the changes that stand out the most in this reform of the Traffic Law have to do with the increase in the loss of points for some offences that were already punishable.

Some of the offences that will cost drivers more points from March are:

• Holding and/or using mobile devices while driving, from being penalised with 3 points less to 6, plus a fine of 200 €.
• Not wearing seat belts, child restraint systems, helmets and other mandatory protective equipment, which will no longer be 3 but 4 points less and a financial penalty of €200.
• Throwing objects from the vehicle that could cause accidents or fires, which increases from 4 to 6 points.
• Overtaking cyclists without maintaining the mandatory minimum separation, hindering or endangering their lives, will result in a loss of 6 points and not 4 as before.

Two years without breaking the law in order to recover 12 points

Another of the new features introduced by the reform is that the period of time that will have to elapse to recover driving licence points is two years, as long as no offences are committed during this time.

Until now, this period varied according to the seriousness of the offence that led to the loss of points.

Recovery of 2 points with DGT courses

On the other hand, the new law provides that up to two points can be recovered if the sanctioned driver attends safe and efficient driving courses given by the Spanish Driver and Vehicle Licensing Agency (DGT). The requirements and conditions to be met in order to attend these courses will be established through a Ministerial Order.

In addition, attendance at these awareness and sensitisation courses will also be taken into account as complementary training to pass the driving licence.

Point penalties will be as follows

The offences that will also be punished with a loss of points, according to the recently approved reform of the Traffic Act, are as follows:

• Driving with the presence of drugs in the organism or a rate of alcohol greater than 0.50 mg/l in exhaled air in general and 0.30 mg/l in the case of professional drivers and with less than two years of seniority, will be punished with 6 fewer points.
• Using or possessing technology to inhibit radars. This is considered a very serious offence and will be penalised with 6 points off the driving licence.
• Not respecting the right of way at a give way sign and not stopping at a stop sign or red traffic light will be penalised with 4 points less.
• Carrying a mobile phone between the helmet and the driver's head will result in a 3 points deduction.

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.

Today we are going to talk about permanent disability due to an accident. Better known as after-effects or sequelae, these are a hard time for the victim who must learn to live with a new and different physical or psychological situation that limits him/her to some extent. 

What is permanent disability due to a traffic accident?

We are dealing with permanent disability due to a traffic accident when, after the occurrence of an accident, the victim suffers injuries that result in a physical or psychological situation that prevents him/her from being able to carry out his/her usual profession and/or any other work, either totally or partially. 

The following is a breakdown of the 4 types of permanent disability that can occur after a traffic accident: partial, total, absolute and severe disability. 

Partial permanent disability

Situation in which the worker is partially unable to carry out his or her usual work. This occurs when work performance is reduced by 33%.

Total permanent disability

Situation in which the worker is totally unable to carry out his/her usual work, but not other occupations. 

Absolute permanent incapacity

Situation in which the worker is absolutely unable to carry out his usual work and any other occupation.

Permanent incapacity for severe disability

Situation in which the worker, who is permanently and totally disabled, requires the help of a third person to be able to carry out the basic activities of daily life. 

Claiming compensation for permanent disability after a traffic accident

When we cause permanent disability, in any of its degrees, the victim is entitled to receive the corresponding benefit by means of an administrative application through the Instituto Nacional de la Seguridad Social.

However, when permanent disability is caused by a traffic accident, Law 35/2015, of 22^nd September, on the reform of the system for the assessment of damages caused to people in traffic accidents, also includes various compensation items aimed at compensating the harmful consequences caused to the victim.

Firstly, the law provides for a Medical Scale, with an exhaustive list classifying the different after-effects and their assessment within an individualised range.

Independently, a table of pre-established compensation amounts is set out, depending on the number of sequelae points and the victim's age. These amounts are automatically updated, with effect from 1 January each year, in accordance with the percentage of the pension revaluation index provided for in the General State Budget Law. 

On the other hand, the law assesses the so-called moral damage due to loss of quality of life caused by sequelae, when a certain number of sequelae are exceeded. 

Likewise, the law foresees a compensation item for those injured who need the help of a third person due to permanent incapacity after a traffic accident. 

Finally, when we find ourselves in a situation of permanent incapacity, in any of its degrees, our economy is inevitably harmed. In other words, there is the so-called loss of earnings, which are the amounts that we stop or will stop receiving, for personal work carried out, as a result of a traffic accident. Well, the law contains compensation items to cover those amounts that we will cease to receive for the performance of our profession or any other, and that we will no longer be able to carry out as a result of permanent disability after a traffic accident. 

There are various types of damages and losses that can be compensated for in the Traffic Schedule, and the key to a perfect claim for permanent disability due to a traffic accident is the correct and experienced application of the Schedule so as not to leave any damage caused to which we are entitled.

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.

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.

A considerable number of road accidents occur every year, both in cities and on interurban roads, causing injuries of varying severity to their victims. In these cases, clarifying who is solely liable is key to claiming compensation for pedestrian, cyclist or animal injury.

But many times, people who are victims of a collision believe that they are the ones to blame for, so they do not claim any compensation. Therefore, below we explain in which cases and how you can claim compensation if you are hit by a car.

What to do if you suffer an accident (run-over incident)?

In any traffic accident, the most vulnerable party is the one who is most exposed, such as pedestrians or cyclists. So if you have been hit by a car, it is essential that you act quickly in the aftermath. This is the most important thing to do:

• Whether you can move or not, call 112. It is important to be seen by a doctor within 72 hours of the accident. Even if you think you have no injuries, they may appear hours or days later.
• To avoid further collisions or other types of accidents, it is advisable to mark the area until the ambulance and the police or Guardia Civil arrive. Ask for help to do this if you need it.
• In the event that the person responsible for the accident does not want to sign the friendly report or has fled:

• Collect as many details of the vehicle and its driver as possible.
• Keep the details of witnesses so that you can locate them if necessary.
• Call the police or Guardia Civil to draw up a police report.
• Be sure to give your version of events in your statement to the police or Guardia Civil, either at that moment or as soon as you can.

• Try to take photographs of the material damage suffered.
• Follow all the treatments, check-ups and medical protocols prescribed to you, and keep all the documents and reports you are given.
• Do not let the legal deadlines for claiming your compensation pass.

When can compensation be claimed in the event of a pedestrian being hit by a vehicle?

A person who has been hit by a car is always entitled to claim compensation in the following cases:

• If he or she was crossing correctly at a pedestrian crossing or when the traffic light was green for him or her.
• If the vehicle involved in the collision is a vehicle which has run away or does not have liability insurance. In these cases, the Insurance Compensation Consortium will pay compensation.
• Even if the pedestrian was not crossing in the right place, if the driver's conduct was not correct either.

In the latter case, there would be what is called "concurrence of fault", since both parties have contributed to the occurrence of the facts and, as a consequence, the injuries and damage caused. Therefore, the amount of compensation will depend on the degree of responsibility that the pedestrian has had in the accident.

On the other hand, a pedestrian is not entitled to claim compensation if he or she is solely responsible for the accident.

Calculation of damages for pedestrian collisions

Compensation for pedestrian collision is calculated in accordance with the provisions of Law 35/2015, of 22^nd September, which sets out the system for the valuation of damages caused in traffic accidents.

In general, this type of compensation takes into account:

• The days of recovery and rehabilitation required after the accident. The traffic accident scale differentiates between four types of days depending on the seriousness of the damage caused in each one of them.
• The after-effects or permanent disability. Once the rehabilitation treatment has been completed and the victim has been discharged from hospital, a specialist doctor draws up a report in which he assesses the physical, psychological or aesthetic after-effects of the accident, as well as the surgical interventions required and the victim's personal circumstances before and after the accident, using a points system.
• Economic damage. This item compensates the material damages suffered in the accident, the income that has been lost during the healing period and the additional expenses incurred as a result of the accident.

Why do you need an accident lawyer to claim compensation for an accident?

The most common type of collision is one in which the sole responsibility for the accident is unclear. That is why it is essential to be well advised by a specialist road traffic accident lawyer if you want to obtain compensation.

When a collision occurs, it is the insurer of the vehicle involved in the accident who must pay compensation. Therefore, they will try to blame the accident on negligence on the part of the pedestrian. If you have a lawyer specialised in accidents, he or she will help you to prove that you are not at fault, to calculate the fairest compensation and to meet all the deadlines and legal requirements established by the Law so that you do not miss out on your compensation.

 Collisions with cyclists

In recent years the use of bicycles has increased, both as a means of transport in the city and for sporting activities. As a consequence, there has also been an increase in the number of accidents involving cyclists, usually caused by carelessness or ignorance of the regulations on the part of both drivers and cyclists themselves.

In 2021, four out of every ten road deaths were pedestrians, cyclists or motorcyclists, according to the annual traffic balance of the Ministry of Interior and the National Department of Traffic (DGT). A total of 31 cyclists were killed last year, most of them on conventional roads where the speed of other vehicles is higher.

Lack of knowledge of regulations and accidents on cycle lanes

In general, there is a great lack of knowledge about the rules governing the coexistence of cyclists with pedestrians and other drivers, as well as the regulations governing the use of cycle lanes.

The regulation of cycling on cycle lanes is the responsibility of the local councils. However, in the event of any accident, the first thing to do is to refer to the provisions of the Traffic Regulations, then to the instructions of the DGT and, lastly, to the specific ordinance in force in each town council.

The existence of a cycle lane does not guarantee that accidents will not occur between bicycles and pedestrians, or between pedestrians and other vehicles. So in these cases, it is also very important to know the circumstances in which the accident occurred in order to determine who is responsible and whether the victim can claim compensation.

When can a cyclist claim compensation in the event of being hit by a car?

In cases where a cyclist is injured as a result of being hit by a car, he or she may claim compensation if:

• A motor vehicle is solely responsible for the accident, in which case the insurance company will be responsible for compensating the injured party.
• There is concurrence of fault, i.e. when the cyclist and the vehicle were both partly responsible for the accident. The cyclist can claim compensation in proportion to the percentage of fault.
• The accident has occurred where the cyclist has the right of way, such as a cycle lane.

If you are a cyclist, when are you at fault?

In the presence of cyclists, other drivers must drive more carefully, but cyclists, for their part, must respect the rules of the road. Therefore, a cyclist will be at fault for an accident, and therefore for the injuries and damage caused, in the following cases:

• If he/she does not respect traffic signs, traffic lights or pedestrian crossings.
• If there is no cycle lane and he rides on the carriageway, if he/she does not ride on the right or along the hard shoulder.
• When you do not clearly signal the direction of movement.
• If you do not use reflective elements or lights that make you visible, both day and night, to other drivers.
• When overtaking on the right.
• If you stand in the blind spots of the car and your driver cannot see you.
• When using a mobile phone or headphones with music while riding a bicycle.
• When you do not respect the maximum speed limit.
• If you are under the influence of alcohol or drugs.

Is it compulsory for a cyclist to have insurance?

It has often been said that the DGT intends to make it compulsory for cyclists to have insurance and a driving licence. However, although this may be logical, there is currently no regulation that obliges them to do so.

Nevertheless, if you are a cyclist, it is highly recommended that you have an insurance policy that covers, as a minimum, civil liability for third parties. So that in the event of an accident with a pedestrian, another cyclist or a motor vehicle, the insurance company will cover the physical and material damage caused, just as it does with other vehicles.

Calculation of compensation for bicycle accidents

As in any other accident, the calculation of compensation for a bicycle accident is based on the traffic accident scale, which establishes a system for assessing the damages suffered in an accident. This system includes the amounts to be paid in the event of compensation for temporary disability, death or permanent sequelae.

In each of these cases, different items are distinguished according to the type of damage or harm suffered:

• Period of temporary incapacity. During the days from the bicycle accident until the medical discharge, an amount is assigned according to the damage caused each of these days: very serious, serious, moderate or basic.
• After-effects or permanent disability. The amount will vary according to the points assigned to each of the sequelae, both functional and aesthetic, suffered by the cyclist after completion of the rehabilitation treatment and discharge.
• Economic loss. This is compensation for the material damage suffered, the extra costs incurred and the income foregone following the cycling accident.

However, in cycling accidents, as cyclists do not have insurance, in order to prove the material damage suffered in the accident, an expert appraisal of the damaged bicycle and equipment must be carried out.

Expert opinion

In the event that the cyclist has suffered damage to his or her bicycle, equipment or personal belongings as a result of the accident, he or she may claim compensation from the insurer of the vehicle responsible for the repair or replacement of the same. In order to do this, an appraisal or expert's report must be carried out to serve as documentary proof of the economic value of the damage caused by the accident.

Having a report drawn up by a bicycle specialist will help the injured party to obtain fair compensation from the insurer and also in the event that a legal claim has to be filed.

Most frequent injuries

The most common injuries that a cyclist can suffer after a cycling accident and for which compensation can be claimed are as follows:

• Injuries to the neck area such as: herniated or fractured discs, tendon damage or pinched nerves.
• Fractures of the wrist, arm, leg, hip or collarbone, as well as dislocation of the jaw, fingers, shoulder, hip or knee.
• Contusions or bruises.
• Severe lacerations.
• Nerve injuries or paralysis.
• Traumatic brain injuries.