GENERAL OVERVIEW OF COMPENSATORY MECHANISMS IN SPAIN

The person who damages another must be liable according to the legal framework of the Spanish Civil Code (SCC). The SCC foresees a fault-based liability system in its art. 1902 of the SCC – thus requiring the fault or negligence of the tortfeasor–, although other specific legal provisions regulate strict liability for certain cases (e.g. the liability of the possessor of an animal under art. 1905 of the SCC or the strict liability for car accidents in the event of personal injuries under art. 1.1 of RDL 8/2004). In these cases, the victim is not required to prove the negligence of the tortfeasor, which may help her to claim for compensation (pro damnato principle).

Article 1902 of the SCC establishes that it is the person who causes damages to another that is the one liable. Thus, the victim may directly claim compensation against the tortfeasor. However, this compensation may be granted through different means that aim to compensate or to palliate the victim, normally in cases of unidentified or insolvent tortfeasors. For example, through social security benefits (mainly regulated in RDL 8/2015), insurances (some of them compulsory for the tortfeasor, such as the one for car accidents) and through different types of funds, which is the object of this chapter. Consequently, compensatory mechanisms can be divided in Spain as following:

1. 1. Traditional compensation through a direct claim against the tortfeasor, which is based on art. 1902 of the SCC or on special regulations relating to civil liability.In this section, one can include either liability requiring fault ( negligencia) or strict liability systems ( responsabilidad objetiva).

2. 2. Public aids. Although they are not strictly considered a compensation for damages, they can alleviate the victim.Apart from the general social security benefits (for example, temporary and permanent disability under RDL 8/2015), the government may create ad hoc aids for certain cases, such as the ones for women that are victims of domestic violence (art. 27 of the Organic Act 1/2004 7). In some cases, these aids may oblige the victim to waive his/her right to claim compensation against the tortfeasor, since the Public Administration can, after paying the victim, subrogate to her position.