On the assessment of injuries in low intensity accidents

12/02/2022

Material damage cannot be used as a criterion to assess the injuries to the occupants of a vehicle in an accident and in accidents produced at low speed with apparently little material damage.

Although there is no significant damage to the vehicles, this does not imply that there are no injuries to the occupants. It would be applying a scant medico-legal rigor to the allegation of the rupture of the causal link based exclusively on the entity of the material damage produced in the vehicles. If the material damage is 300 euros, the injuries must be minor. The repair bill must not prejudge the extent of bodily harm, for which determination must be based on medical reports.

In attention to the Civil Provincial Court of Madrid Eighth Section

Appeal 523/2018 D

JUDGMENT No. 515/2018

ILMA. MS. MAGISTRATE:

CARMEN MÉRIDA APRIL

In Madrid, on November 20, 2018. The Ilma. Mrs. Magistrate, expressed on the sidelines, has seen the Verbal Judgment number 208/2017, from the Court of First Instance number 20 of Madrid, followed between parties; one as plaintiff-appellant D. represented by the Solicitor Ms. and the other, as defendants-appellees by the insurer XXXXXXX, SA DE SEGUROS Y REASEGUROS , represented by the Solicitor Ms. and D. , represented by Attorney D.

SEEN, being Magistrate Rapporteur Ilma. Mrs. CARMEN MÉRIDA APRIL.

I.- FACTUAL BACKGROUND

FIRST.- By the Court of First Instance number 20 of Madrid, on December 4, 2017, judgment number 321/2017 was issued, the ruling of which reads as follows:

"That dismissing the lawsuit filed by the Attorney Ms. , on behalf of Mr. , I must acquit and ACQUIT XXXXXXXXXXXXXXXXXXXXX and MR of the action brought against them, imposing the costs of this first instance on the plaintiff."

SECOND.- Against the previous resolution, an appeal was filed by the plaintiff, which was admitted and, by virtue of it, prior to the appropriate summons, the proceedings were sent to this Section, substantiating the appeal by its legal procedures.

THIRD.- Not considering it necessary to hold a public hearing, the decision was made by Ilma. Magistrate Rapporteur.

FOURTH.- In the processing of this procedure, the legal requirements have been observed in both instances.

II.- FOUNDATIONS OF LAW

Those of the same nature as the judgment appealed from are not accepted.

FIRST.- Background and purpose of the appeal.

The controversial issue, given the content of the appeal and opposition briefs, is limited to the determination of the injuries suffered by the plaintiff and their causal link with the accident.

The following are relevant antecedents for the decision of the appeal:

1.- D. ​​claims in accordance with the Consolidated Text of the Law on Civil Liability and Insurance in the Circulation of Vehicles approved by Royal Legislative Decree 8/2004, of October 29, and its reform operated by Law 35/2015, of October 22 September, compensation of €2,932 for temporary injuries and €2,305.33 for sequelae.

The compensation claimed derives from the injuries suffered as a result of the traffic accident that occurred on June 21, 2016 when he was driving on Hija de Jesús street in Madrid in the Peugeot 406 vehicle, license plate X, as an occupant, this being driven by Mr. he stopped his march when he reached a yield point, at which point he was suddenly and unexpectedly hit in the rear by the vehicle with license plate X, insured in Segurcaixa and driven by the co-defendant .

The plaintiff supports his claim, basically, in the opinion of the expert D. who carried out a legal medical assessment of the injuries and sequelae.

2.- The defendants, who accept the dynamics of the accident and the responsibility in the accident of D. , disagree, exclusively, on the entity and nature of the injuries and sequelae that support the action, to be considered, based on the biomechanics report issued by R&N Peritos de Seguros SL and the medical expert report issued by Ms that there is no causal relationship between the injuries and the accident.

3.- The judge of first instance rejects the claim in its entirety. His reasons, in essence, were the following: a) It is noteworthy that proof of the driver of the vehicle in which the plaintiff was traveling was not proposed, that no photographs of the Peugeot in which the plaintiff was traveling were provided; that the plaintiff did not provide his expert with information regarding the pension for total disability that he has recognized, nor about the disability of 53%; b) Secondly, the forcefulness of the reports provided together with the response to the claim is striking, as well as the biomechanical report in which the causal relationship between the claimed injuries and the accident is ruled out, analyzing the speed at which the accident occurred and the damage to both vehicles and a medical report in which said causal relationship is also ruled out, not only because of the preceding biomechanical report but also because of the medical reports themselves that have been provided with the lawsuit . And it is indeed not possible to accept that with a collision in which damages barely reach 300 euros were produced, the plaintiff suffered injuries that took 86 days to heal and left sequelae consisting of chronic post-traumatic pain worth 3 points.

4.-Against the judgment, the plaintiff makes an appeal based on the erroneous assessment of the evidence. And in it he ends up requesting the estimation of the appeal and the estimation of the claim, with the imposition of costs on the defendant.

5.- The defendants appealed sought the confirmation of the sentence, in accordance, in substance, with the grounds thereof, with the imposition of costs to the appellant.

SECOND. - On the erroneous assessment of the test.

The STS of May 18, 2015, rec. 2217/2013 reiterating judgments no. No. 88/2013, of February 22, and 562/2013, of September 27, among others, of that Chamber, declared that«in our system, the trial of second instance is complete and must be carried out based on the materials collected in the first, although the evidentiary material can be completed by admitting -with a limited character- certain evidence that could not be practiced in it (articles 46 and 46 of the Civil Procedure Law); and in it, the verification that the higher body makes to verify the success or failure of what was decided is a verification of the result achieved, in which the powers of the reviewing body are not limited in relation to those of the initial judge» The ruling of the Constitutional Court No. 212/2000, of September 18, states the following: "This Court has already had occasion to point out that, in our procedural system, the second instance is configured,

In application of the exposed doctrine, the resolution of the appeal requires analyzing the medical opinion of Mr. Carlos in which the plaintiff supports his claim, and the opinion of the experts Mr. and Mrs. in which the defendants support their reason for opposition, in accordance with the legal criteria for assessing the expert evidence according to the rules of sound criticism, pursuant to Art. 348 of the LEC.

The rules of sound criticism are not codified, they must be understood as the most elementary guidelines of human logic. Thus, it must be that, in the absence of legal norms on healthy criticism, it is necessary to attend to logical-rational criteria, evaluating the content of the opinions and not specifically and only their result, based on the other means of evidence.

Applying these rules, the court, when assessing the evidence through expert opinions, must weigh, among others, the following issues:

1º The reasoning that contains the opinions and reports, and those that have been poured in the act of the trial or seen in the interrogation (STS February 10, 1994).

2º The compliant and majority conclusions that result, both from the opinions issued by experts appointed by the parties, and from the opinions issued by experts appointed by the court, motivating their decision when they do not agree with the majority conclusions of the opinions (STS December 4, 1989).

3º The examination of the expert operations that have been carried out by the experts who have intervened in the process, the means or instruments used and the data on which their opinions are based (STS January 28, 1995)

4º The professional competence of the experts who have issued them, as well as all the circumstances that make them presume their objectivity.

Thus, the insurance company SegurCaixa Adeslas, SA provides a report issued by the expert Mr. Javier whose purpose was to " determine, once the data and circumstances that have occurred in it have been analyzed, if there is a cause-effect relationship between material damage and the injuries presented by the occupants of the vehicles involved, based on the increase in speed transmitted to the passenger compartment of said vehicle. The data necessary for the preparation of the report are from the expert reports of both vehicles involved in the accident. " in the following terms (folios 72 and 73, and 81):

In view of the damages that both vehicles present, and taking into account that the proportionality that must exist between them, we understand that the damages caused in the vehicles, in the causer affect only the paint of the front bumper, and in the one reached a break in the surface of the part, we can describe the intensity of the collision between both vehicles as very slight .

According to the studies and tests on bumpers, when the impact speed is greater than 4 km/h, permanent deformations occur in the bumper and bodywork, and from 8 km/h, breakage, likewise, according to European regulations of vehicle homologation ECE-R42, establishes that an impact at a speed of 4 km/h, if there is damage to the vehicle, these must be located only in the bumper, from which it is deduced that the impact speed, considering Taking into account the damage caused to the rear, it was a maximum of 8 km/h, since there is no broken bumper in either of the two vehicles.

The energy derived from the collision between both vehicles has not caused variations in Av or significant decelerations, which correspond to the minimum values ​​for the appearance of cervical injuries.(...) We consider that there is no cause-effect relationship or causal link between the dynamics of the accident and the possible existence of injuries to the occupants of the vehicles involved in this incident, Chrysler Voyager, license plate M, as the cause, and in the accident involved, Peugeot 406, license plate .

The study that contemplates this expertise suffers, however, from some deficits that make it implausible. In the first place, the expert's opinion is incomplete since it ignores the speed of the vehicle that caused the collision, or the intensity of the impact without having interested in obtaining said information from the drivers involved in the accident. In addition, the expert opinion is based on mere hypothesis and conjecture, and is based on the tests carried out by the SAE, AZR and DAD Research Centers and the biomechanical studies of Cholewiki, 1997, Ito S, Ivancic PC, Panjabi MM, Cunningham BW. , 2004that they are nothing more than interdisciplinary research groups with the purpose of carrying out industrial research projects without proven and undeniable scientific validity, which is far removed from the physical reality that could have actually happened in the accident. Regarding the medical considerations contemplated by the expertise, little if not null probative value can be granted to them insofar as they have not been issued by a specialist in the matter.

In fact, the expert Mr. Javier, senior automotive technician and industrial engineer, who issued the biomechanical report, stated that he had not calculated the force necessary to break a rear light and that the estimate of an impact speed of less than 8 km/hour, it is an approximation for the value of the damages, just as the laboratory studies are carried out with people who undergo the tests in such a way that the surprise factor is not considered.

And finally, the expert does not consider multiple circumstances that can affect the intensity of the injury, such as the age, musculature and strength of the victim, the state of preparation of the subject when he receives the impact, the injuries being greater when the impact is receives by surprise, the type of seat, the size of the occupant, the existence of pathologies, the position of the head and the body at the moment of impact, circumstances that justify individual variability and explains that in the same accident the injuries have different intensity in each of the passengers, not without forgetting that today, when it comes to low-speed collisions, vehicles suffer little deformation, transmitting the impact to the occupants of the vehicle.

Minor jurisprudence has ruled in the same direction. The SAP Asturias 224/07, of June 8, resolved that " in the scientific medical literature, when considering the factors that influence the production of a possible injury such as the one indicted here, both the force of the impact is valued, since which is an injury due to acceleration and not due to contact, as well as the position of the head at the time of the accident and the awareness of the next impact by the one who suffers it, because if the subject perceives it and has time, he will react by contracting the cervical musculature , preparing her for the impact, and this will not happen if she does not perceive the imminence of the blow with greater repercussion on the vertical region" .Added to this is the fact that, as the plaintiff stated during questioning, the impact moved them one or two meters, "it caught him by surprise", he was distracted.

In view of the expert's conclusions, the objective fact is that there was a collision among the cars involved, and this was reflected by the drivers in the friendly declaration of the accident signed at the scene of the events and accompanied by the claim that, having failed to been challenged displays all its probative effectiveness in accordance with art.326, in relation to art.319 of the LEC and in which it is stated that the Chrysler vehicle collided in the rear with another vehicle that was traveling in the same direction and in the same lane (doc.1 demand).

It is also established, together with the inescapable reality of the impact by range, that the plaintiff suffered physical injuries as a result. This fact is confirmed by the friendly declaration of the accident itself, which reflects that there were indeed victims, the medical discharge report from the emergency room of June 22, 2016, in which he was diagnosed with " neck pain after a traffic accident, cervical sprain " (doc .2 demand), the report of the Crosecon SA rehabilitation and physiotherapy clinic (doc.4 demand) and the opinion of D. Carlos, a doctor specializing in the assessment of bodily harm (doc.5 demand), who issues his opinion in consideration to the medical documentation regarding the mechanics of the accident and the exhaustive examination of the plaintiff, concluding that "Don Francisco, suffered a traffic accident on 06/21/2016; that due to said accident he suffered a series of injuries: post-traumatic neck pain and cervical sprain; that some sequels have remained: cervical and lumbar post-traumatic pain ; that the causal link between the accident suffered on 06/21/2016 and the sequels that he suffers is fulfilled, the injury mechanism of said sequels being accredited. "The aforementioned expert witness, in the act of trial, according to the support of his recording, ratified his report and stated that he examined the injured person on December 23 and he presented paravertebral contracture, with exploration and flexion pain, that the injuries assessed were compatible with injury by scope, that the injured person went to the hospital two days after the accident, also had headaches and dizziness habitual in cervical contractures and received rehabilitative treatment, being demonstrated today that low-speed collisions, even producing little damage, produce injuries depending on many factors. , that the speed of the vehicle is one more factor but not the most important, that the biomechanical report saw, that an incapacity for work is not related to injuries and, ultimately,which ratified the 16 days of moderate personal injury, that the 86 days seemed to him a normal period, since they range between 60 and 90 days, and justified the assessment awarded three points for sequelae, understanding that post-traumatic pain should be included, and that relationship between the date of the accident and the start of the RHB sessions ten days later, it is logical to conclude that these were a consequence of the accident and not of the history of incapacity and handicap of the injured person.the logical thing is to conclude that these were a consequence of this and not of the history of incapacity and handicap of the injured person.the logical thing is to conclude that these were a consequence of this and not of the history of incapacity and handicap of the injured person.

These conclusions are not distorted by the opinion of Ms. Carmen, also an assessor of bodily harm, who concludes that " according to the care documentation provided (with the absence of objectifiable acute post-traumatic signs), we cannot establish a correct causal link between a minimal subsequent impact and a symptomatic clinic"(folio 93) although he neither explored Mr. nor established the causal link in the consideration of the conclusions of the biomechanics report, he thus declared accepting the conclusions of the former that if there is not enough energy, traumatic injuries do not occur, rejecting even the relevance of the emergency report the following day stating that everything is referred, that the objective tests did not detect alteration and the medical treatment was prescribed after 5 days, which determined that " the injuries there were minimal ".

Therefore, it can be affirmed that there was a rear-end impact that caused damage, and it is reasonable to conclude that the impact, despite its possible lightness, caused physical injuries to the plaintiff, confirming with all this the effective concurrence of a causal relationship. true. The mere consideration that the impact could have been slight does not in itself constitute an element that rules out the reasonableness of such a conclusion, even more so when in the case at hand the specific intensity of that presumed lightness has not been demonstrated with reliable evidence. and reliable, but on the contrary merely conjectured based on generic studies and data comparisons that result in mere assumptions (and not conclusions) subjective and hypothetical,

Affirmed the reality of the existence of the causal link, the harmful consequences of the accident must be those determined in the medical report accompanying the claim, since the defendants have not offered or justified any other alternative assessment.

The reason is estimated.

THIRD.- Costs .

The estimate of the resource determines that no pronouncement is made on costs, in accordance with article 398 of the LEC

The estimate of the demand determines the imposition of costs to the defendants, in accordance with art.394 LEC.

Considering the cited articles and others of general and pertinent application.

III.- FAULT

1. - UPGRADE the appeal filed by the procedural representation of Mr. D. against the ruling issued by the Court of First Instance number 20 of Madrid on December 4, 2017, in Verbal Trial number 208/2017.

2.- REVOKE the sentence by issuing another one whereby CONSIDERING the claim filed by D. F, I order xxxxxxxxxxxxxxxxxx SA DE SEGUROS Y REASEGUROS and D. to jointly and severally pay the plaintiff the sum of €5,237.33 plus the corresponding legal interest from the filing of the claim, and to the insurer, at the interest of art.20.4 LCS from the date of the claim, with the costs incurred by the defendants.

3.- Do not pronounce the costs of this elevation.

The estimate of the appeal determines the return of the deposit constituted by the appellant, in accordance with the provisions of Additional Provision 15 of Organic Law 6/1985 of July 1, of the Judicial Power, introduced by Organic Law 1/2.009, of November 3, complementary to the procedural legislation reform law for the implementation of the new judicial office.

Against this resolution and in accordance with article 208.4 of the LEC, there is no ordinary recourse, nor extraordinary procedural infraction or cassation due to the fact that the sentence has been issued by a single Magistrate, in accordance with the criteria established by our Supreme Court, First Chamber, by means of an Agreement on criteria for admitting appeals and extraordinary appeals for procedural infringement, in the non-jurisdictional plenary session of January 27, 2017, incorporated in subsequent resolutions.

Thus, for this my sentence, of which literal certification will be attached to the Rollo de Sala, I pronounce it, order it and sign it.

PUBLICATION.- The previous Judgment was made public by the Magistrate who signed it. Attest. In Madrid, on November 20, 2018.