English lawyers familiar with the ECJ decision in Odenbreit and the inroads made into English law by the Rome II Regulation are also likely to have at least a passing acquaintance with the Spanish Baremo Rating System for the Assessment of Damages in personal injury claims. The system applies compulsorily in a road traffic accident context, but is characteristically applied (by analogy) by Spanish Judges in other personal injury cases as well. To an English lawyer, the system appears to be a deeply complex and yet prescriptive tariff scheme in which basic assessments are then corrected by reference to further criteria, arbitrary “consolidation” dates are selected to distinguish temporary from permanent injuries and some obvious heads of future loss are not compensated at all.
However, the Spanish Baremo system is about to change; at least, for “harmful events” occurring after 1 January 2016 (although some doubt remains as to the date from which the new system will apply and whether it will have any retrospective effect). The biggest changes: (i) the new system will be less complex; (ii) the new system will strive to achieve the principle of full compensation and, accordingly, damages awards will increase very significantly (in some predictions, by more than 100%); and, (iii) there will be more certainty about the ability of injured parties to recover heads of loss that were previously contentious eg. future loss of earnings (perhaps unsurprisingly, it is understood that these proposals were not very popular with Spanish insurance companies).
It will be necessary to see how the changes bed down and Spanish law expertise will obviously continue to be needed. A couple of observations may, however, be justified. First, in cases in England to which Spanish law will (see, articles 4 and 15(c) of Rome II) apply it may be worth insurers settling now to avoid the prospect that the new system will be held to have retrospective effect (conversely, it may be worth delaying settlement of cases where the new Baremo might result in a more generous award to an injured Claimant). Second, the changes proposed for the Spanish system look – at least in headline terms – more familiar to an English lawyer than the present system. Could this be a rare example of English/common law principles drifting across the Bay of Biscay to influence continental law?