How is it decided who is at fault in an accident?

Question

José Manuel Alburquerque · Accepted Answer

First the insurers assess it, using the accident report form (the European Accident Statement), the police report if there is one and any other evidence. If there is no agreement, a judge decides. For injuries, the law gives the victim more protection, because the driver is liable unless they prove that the fault lay solely with the victim or with force majeure unconnected with the driving or the vehicle. For damage to vehicles, by contrast, the person at fault is liable, although according to the “Tribunal Supremo”, Spain's Supreme Court, it is the driver being claimed against who has to prove they were not at fault. If it cannot be established who was at fault, in a collision between two vehicles each insurer pays for the other driver's injuries in full and half the damage to the other vehicle. The evidence The police report, which in Barcelona is drawn up by the “Guàrdia Urbana” (the city police) and on Catalonia's roads by the “Mossos d'Esquadra” (the Catalan police). It records the position of the vehicles, the marks on the road, the statements and the witnesses. It is not binding on the judge, but it carries a lot of weight. So give the officers a clear account of your version and read your statement before signing it. The accident report form signed by both drivers. Photos, witnesses and footage from nearby cameras. The report of an accident reconstruction expert, who calculates speeds and trajectories from the damage and the marks. It is usually decided by the most basic traffic rules, such as keeping a safe distance in rear-end collisions, right of way, traffic lights or speed. The rules the judge applies If there are injuries, the driver is only released from liability if they prove that the fault lay solely with the victim or with force majeure. A blowout, a brake failure or any other defect in the vehicle does not count as force majeure. For damage to vehicles and property, the person at fault is liable. According to the Supreme Court, it is the driver being claimed against who has to prove that they were not at fault. If both were partly to blame, each is paid in proportion to the other's share of the blame, with the reduction for injuries capped at 75 %. If it cannot be known who was at fault in a collision between two vehicles, the Supreme Court has held that each driver's insurer pays for the other driver's injuries in full and half the damage to the other vehicle. If you do not agree Agreements between insurers on how to share out the blame are not binding on you. You can make a written claim to the other driver's insurer and, if no agreement is reached, sue. In traffic accidents, according to the “Audiencia Provincial” of Barcelona, the provincial appeal court, the prior claim and the insurer's reasoned offer (the “oferta motivada”) or reasoned reply count as the attempt to reach an agreement that the law requires before suing. If there were serious injuries or a death, the case may first go to a criminal court, which will also decide how the accident happened. While the criminal proceedings last, the time limit for claiming does not run. Apart from that case, disputing who was at fault does not stop the time limit. You have one year to claim against the insurer, in Catalonia too. If you also want to claim against the driver, do so within that year.