The objective is to determine how contributory negligence can be applied to moderate or distribute civil liability between the parties involved in an accident, so as to achieve equitable compensation.
As an initial premise, for concurrence of fault to occur, the harmful results must involve the parties to such an extent that the conclusion implies a proportional distribution of liability or a moderation of compensation.
It is the judge’s discretion, based on the facts and evidence, which determines the distribution of the percentages of liability attributable to the parties involved.
Therefore, it is the contribution ‘with causation’ that shows how liability can be distributed proportionally, establishing a percentage of participation in civil liability. The greater the participation in the cause, the greater the participation in the share of liability assigned by the judge, producing a direct effect on the compensation.
In short, liability is shared in proportion to the contribution of each party, which is relevant for the purpose of apportioning liability. There is no doubt that, in order to achieve the objective of having the concurrence of fault assessed by your Honour, the contribution of the parties to the harmful result/accident must be duly argued, and the need to adjust the compensation amounts according to the liability of each party, in proportion to the contribution of each one in the accident, must be invoked.
From the insurance law department of Belzuz Abogados we are going to refer to a judgement issued by the Provincial Court of Pontevedra dated 12 May 2020.
This judgement deals with the concurrence of faults, in a field of tort liability of sporting events, where it is discussed whether the liability is subjective or due to fault, or on the contrary objective or due to risk. In this particular case, the Court places the burden of proof on the defendant. In other words, he will have to prove that he took all necessary measures to avoid the risk, consisting of the injuries that the plaintiff sustained.
Specifically in this case, the plaintiff filed a claim for injuries suffered due to a fall in the gym when using a treadmill, located on the edge of a step of the premises. It was at the end of the exercise, when she got off the machine and placed her right leg and then her left leg which landed on the treadmill.
All of this led to a claim, which was dismissed at first instance, on the grounds that the injuries suffered were unrelated to the operation of the machine because the exercise had already ended.
The plaintiff filed an appeal which was partially upheld, since, although it rejected the existence of a causal link between the fall and the operation of the machine, on the contrary, the fact that the machine was located close to a step was the cause of the accident suffered by the plaintiff.
All these circumstances were the determining factors for the harmful result. The Provincial Court distributed the liability, according to its criteria, 35% corresponds to the gymnasium for the inadequate location of the machine.
CONCLUSION: In the analysis carried out by the Court we can identify the application of the criterion of concurrence of fault when determining the causes of the harmful result and the consequent civil liability, distributing the fault and the compensation between the plaintiff and the defendant proportionally.
The judgement identifies two clearly differentiated causes in the production of the damage, on the one hand, that of the plaintiff, who instead of exiting the machine from the right towards the central corridor, did so from the back, which makes her 65% responsible for her own damage, and on the other hand, the aforementioned liability of the gym, 35% for the inadequate location of the machine, in its installations, and the inadequate location of the machine, which makes her 65% responsible for her own damage, which makes her 65% responsible for her own damage.
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Socio -Departamento de Seguros
España y Portugal
BELZUZ ABOGADOS SLP
