Road accidents in Spain: considerations about the contribution of the victim in the accident. 

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3 Oct 2023 | General news

When OFESAUTO handles personal injury claims on behalf of foreign entities, we sometimes find that certain decisions are not fully understood due to a lack of knowledge about the basic principles established by Spanish legislation in this regard, specially in cases where it seems there’s a possible contribution of the victim in the accident. 

This is understandable, and we will now share some explanations extracted from the doctrine of the Civil Chamber of the Spanish Supreme Court and the Spanish Provincial Courts. Maybe they are useful for a better understanding of our system 😉.

Art 1 of the RDL 8/2004 stays clearly: 

Article 1. Civil Liability. 
The driver of motor vehicles is responsible, by virtue of the risk created by the operation of these vehicles, for damages caused to persons or property as a result of their operation. 
In the case of injuries to persons, this liability shall only be exempted when it is proven that the injuries were solely due to the exclusive fault of the injured party or to an external force majeure unrelated to the operation or functioning of the vehicle; vehicle defects or the breaking or failure of any of its parts or mechanisms shall not be considered cases of force majeure.

According to this doctrine: 

  • Regarding claims for bodily injury, a quasi-objective liability regime is established, with a burden of proof inversion. The defendant insurer must prove that the damages were due to the conduct or negligence of the injured party or to force majeure unrelated to the operation of the vehicle. 
  • Thus, the insurer must fully and comprehensively prove not only that the victim’s conduct was the decisive and legally relevant contribution to the accident, but also that the driver of the insured vehicle acted with all due diligence to prevent it. 
  • This requirement goes beyond mere compliance with traffic regulations (the principle of trust or the expectation of appropriate behavior by others) and extends to the level of fulfilling the obligations arising from the principles of safety and defensive driving. 
  • Case law has been rejecting exclusive fault of the victim when, even if they acted imprudently, the driver of the vehicle effectively and scrupulously contributed to the occurrence of the outcome. 
  • Case law emphasizes that “exclusive fault of the victim” can only succeed if the party alleging it as a defense proves that the negligent or careless action or omission of the injured party was the sole cause of the damages claimed for compensation. 

Consequently, if it is not possible to prove how the event occurred or it cannot be demonstrated that the sole efficient cause of the harmful result was the negligent or careless action of the injured party, it must be rejected because the victim’s fault, if any, would not be exclusive. This quality is intrinsic to the exception, as it is not a matter of investigating whether the victim contributed to the outcome, but whether they solely caused the outcome. 


> Every motor vehicle user is obligated to behave in a way that does not pose a danger, harm, or inconvenience to people or damage to property. 

> The driver is obligated to adhere to the established speed limits and to consider the characteristics, condition of the road, and all circumstances prevailing at any given moment. 

In brief, the victim’s fault has always received a very restrictive interpretation by the case law in Spain, considering that it is an exception in a general regime that upholds and seeks to compensate the injured party. 



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