We know that once the lockdown is lifted, nature had been recovering its place in the past weeks. In this sense, when regular road traffic is allowed again, we must be aware of which are our rights when a traffic accident caused by an animal invading a road happens.
Since the reform of the Law on Traffic, Circulation of Motor Vehicles and Road Safety in 2014, in practice, the driver of the vehicle was the only responsible for the damage suffered (injuries and other damages), both by him or her and by the occupants of the vehicle, in any accident caused by a wild animal.
The non-driving occupants of the vehicle, who are not involved in the responsibility, could claim for their damages directly to the insurance company of this vehicle (especially after the Supreme Court ruling on 11th of February 2016, Ponente Pantaleón Prieto). However, the driver was only exempted from liability and allowed to claim his own damages in two very specific cases: those stablished by the ninth additional disposition included in the aforementioned Law 6/2014, 7th April:
- When the accident "is a direct consequence of a collective hunting action of wild animals carried out on the same day or concluded twelve hours before". In this case, the responsible person shall be the owner of the hunting ground (normally a hunting reserve – “coto de caza”) or, without that, directly the owner of the land. This option involves many complications in terms of collecting evidence, since your claim must be directly related to a collective hunting action in a very specific period of time, information which is hard to achieve by the victim, since the hunting reserves are not precisely transparent or great collaborators delivering such information.
- When the accident is due to: (i) "as a consequence of not having repaired the enclosure fence in time, if it was the case, or (ii) for not having the specific traffic signal of wild animals in sections with a high accident rate". If this happened, the responsible for the damage would be the owner of the public road where the accident occurred.
It should be added that, even in these cases, the claim implies difficult viability, since many roads are already signposted "correctly" because of the low cost that supposes for the administration just to set a sign every few kilometres in some forests or areas where wild animals live (implying that the Administration is diligent enough). Concerning to the unrepaired fence option, the correlation between the poor maintenance of a broken fence (if there is any!) and the accident must be defended at trial, and the probatory task that we have ahead of us is complicated too.
Before and after the Constitutional Court Sentence nº 112/2018 of 17th October
Despite what has been said, the Spanish Constitutional Court, with its Sentence nº 112/2018 of 17th October, opened different options to claim for damages caused in road traffic accidents by wild animals.
The case began when an administrative court raised a “Cuestión de inconstitucionalidad” for an accident involving a deer on a road owned by a “Comunidad Autónoma”. In that case, the judge understood that the driver always assumes responsibility for the damage caused by wild animals, even though the driver was driving diligently and respecting traffic regulation, while on the other hand, the owner of the hunting grounds and/or the owner of the road is only responsible in exceptional cases. This regulation, under judge’s opinion, "is contrary to the “objective responsibility of the Administration”, which is configured in article 106.2 of the Spanish Constitution", which led to raise this question to the Constitutional Court.
The Constitutional Court dismissed the question of unconstitutionality, but considered that since there is "an activity of administrative ownership [...], the ninth additional provision (the seventh additional disposition, nowadays) of the Traffic Law is only compatible with the system of liability of the Administration stipulated by article 106.2 CE, if it is interpreted in the sense that, if there is no hunting involved, the possible liability of the Administration can still be determined by resorting to any legally suitable charge to support it, without automatically declaring the liability of the driver as usual".
In short, the Constitutional Court opens up a new path by ruling out the imposition of automatic liability on the driver (as was always the case), but it will be always needed to prove a legally suitable charge in order to impose such liability to the Administration or hunting reserve, which would eventually compensate the damages.
After this introduction, our first and prudent recommendation is that, if someone frequently drives through areas with wild animals, it is advisable to sign an insurance policy which includes damages in case of an accident with these animals. Especially in Catalonia, the area of the Pyrenees, the Garrotxa or even Collserola in Barcelona, are areas prone to this, just to give a few examples. These are clauses that many insurance companies already offer to clients in these areas, although they can be useless if there is not enough evidence to prove that the accident was indeed due to the unforeseen irruption of wild animals on the road - wild boars or deers, in most cases-.
For all these reasons, in Coca Advocats we recommend that when an accident of this kind occurs, the police should be called immediately in order to make inquiries and write the corresponding report (“atestado”), one must also collect evidence from eye-witnesses and take photographs, all in order to prove that the accident was caused by a wild animal.
As lawyers specialist in defending victims, we know how difficult is to carry out this task when an accident just happens, especially when it involves injuries; but the more evidence we can gather, the greater viability of a future claim, since we can later prove the Administration was negligent and has to compensate us. We already have a few sentences written after the new judgement from the Spanish Constitutional Court and we find several causes by which the Administration can be found responsible, ranging from the inefficiency of the fence to protect the road, to the insufficient lighting of roads or a deficient control of the wild boar presence in semi-urban areas.
From Coca Advocats we encourage you to demand your rights and contact us freely in order to assess you when an accident in these circumstances happens.