23 - PERJUICIOS EXCEPCIONALES de los art. 77 y 112 del baremo. ¿Por qué no existen en las lesiones temporales?

Desmontando el baremo con Mariano Medina se trata de entrevistas de Manuel Castellanos con nuestro asociado de honor, el maestro Medina Crespo, donde dará una visión descriptiva y crítica del actual baremo de valoración de daño corporal en accidentes de circulación para su aprovechamiento en los asuntos profesionales de los abogados especializados en la materia.

Puedes consultar más información en https://anavarc.org/.

Una producción de Loupod (www.loupod.es).

Episode Transcript

(00:00):
You are listening to a production oflowpodt i welcome with Mariano medinat a training

(00:24):
podcast of anaba RC, National Associationof Victims Lawyers and presented by the lawyer
Manuel Castellanos, aimed at professionals whohave to use the assessment scale of bodily
damage of the year two thousand fifteento determine the compensations to which victims of
accidents are entitled. Best regards.We begin a new chapter of our ANAVA

(00:51):
podcast, the National Association of AccidentLawyers, with our beloved Mariano Medina,
who demolishes the baremo in quotation marksto give us his particular and expert vision
of all the inimical concepts contained init. What' s up, Mariano,

(01:12):
how are you doing? All right? All right, great. Old
man, old man, yes,well, it' s up to you
and me to make sure you don' t see there' s no end
to it. Mariano' s happy, well, I' m exhausted.
Imagine that I am very intense,because Mariano is already. Mariano gives me
lessons still good. I think it' s chapter twenty- five and now

(01:34):
we' re going to talk aboutthe exceptional prejudices that are articulated in the
seventy- seven and one hundred andtwelve Darenes in the scale. Seventy-
seven refers to septentional prejudices by death, and one hundred and twelve refers to
exceptional injury, injury, sequelae,permanent injury. I' m going to

(01:57):
read it because this one, it' s very sencilito, but judgment is
seminal. The prejudices are exceptional tothose referred to in article thirty- three
if they compensate with criteria of proportionity, with a maximum limit of increase of
twenty- five percent of the edition. As little basic staff, I don
' t read the one hundred andtwelve. This refers to le aligations as

(02:19):
a result of death. I don' t read one hundred and twelve,
because it' s exactly the same, but for permanent injuries. What I
do want to read is that thegood guy if I mentioned in his day
the article thirty- three, becauseI think that' s where I'
m going to give Mariano reel.The clause is, however, the clear
one. This is indeed article thirty- three. Point five speaks of the

(02:46):
objectification in the assessment of the damage. It assumes that compensation is awarded in
accordance with the rules and limits laiddown in the system, and therefore no
compensation may be fixed for concerts oramounts other than those provided for in the
system. However, the relevant prejudicescaused by unique circumstances and not contemplated in

(03:07):
accordance with the rules and limits ofthe system are compensated as exceptional prejudices,
in accordance with the established rules.To this effect, in articles seventy-
seven and one hundred and twelve andbefore throwing the noise at Mariano, who
I see, he is already puttingtwo veins in his forehead, the veins

(03:28):
of the capsule are swelling. However, it is true that in its day
we detected and commented on a dysmetryin the scale, because in article thirty
- three it refers to the readarticle seventy- one and one hundred and
twelve, corresponding to death damage andpermanent injury trials. But it doesn'

(03:54):
t talk about temporary injuries, becausein the chapter of temporary injuries there is
no damage is stecial channel good,because it leaves you or Marian task,
you have the microphone everything for youalready we talked something, I think,
when we analyze the article thirty-three we touch this. But today we

(04:15):
are going to dedicate the cession tothe concrete regulation of these exceptional damages.
So I think it is appropriate toframe this precept of the Nevertheless within the
valorative theory, with the two preceptsfrom which they are referred, that is
to say, we are going tospecify the difficult concept of exceptional damages and

(04:42):
we are going to deal with itscompensatory treatment. The concept of exceptional prejudice
already appeared in the rule of thesecond paragraph of the seventh general rule of
the first paragraph of the ninety-five scale, but it had, let

(05:05):
us say, no tabular reflection.There was no tabular reflex. This gave
rise to two conflicting thesis that,in a simplified manner, some could be
said to have stated that the mentionin that second subparagraph with reference to the
exceptional damages exceptional circumstances stated together thatthe purpose of the scale was to ensure

(05:34):
the total compensation of the damage.There was the thesis that this second subparagraph
had direct normative value and would makethe thesis that it lacked direct normative value.
The consequence of one thesis or anotherwas absolutely fundamental, because if it

(05:59):
was argued that having direct normative valuemeant that all tabular regulation could not prevent
full reparation of the damage. Thatwas the significance of that. On the
other hand, if that subparagraph wasdenied normative value, it meant that all

(06:19):
tabular regulation with some rule more thanone rule had to be strictly applied and
neither quantities nor concepts other than thoselaid down in the tabular regulation and in
some other of the rules in thesubparagraph could be established. First of all,

(06:39):
the thesis that flourished in the jurisprudencewas the thesis of the lack of
normative value, of the mention ofexceptional prejudices. The landmark sentence that killed
the possibility of interpretation of normative theorywas the sentences, two twin sentences of

(07:00):
the judge osiol rivers. I thinkthat to remember from the thirty of March
of the two thousand ten, thevery famous sentence of the compensable complement of
the profit Ace Santi twenty- fifthof March makes a comment in the comissa
to Junits of a lawyer came,from a lawyer of Asturian, clear twenty

(07:23):
- five of March of two thousandten. And I remember, because on
the 25th of March, that cumpanosof my wife' s. And I
remember it well, because that reassuresme of my lack of memory, because
I admired that you had the memoryof knowing the date what I tell you,
one I made, a book ofthat. I remember commenting because the
twenty- five good one asked meeconomic and Juris to make a comment on

(07:46):
that sentence and I, after readingit, say I don' t understand
anything and I contacted the lawyer whohandled this matter and he didn' t
know how to explain it to meeither. Then I made an article from
a sentence that I didn' tunderstand, well I tried to explain it
well as I could, but it' s a gallimatias the hesión, as

(08:07):
I don' t know the article. Your comment. Take a note and
send it to me because I'm curious to see what he was saying.
But you, then wrote your abook, you' ve already surpassed
me, I' ve had enoughof what I' m sure you,
the book, wrote without reading mycomment. Of course you didn' t
know because I wrote an article aboutsentence because it was a gibberish and when
I read it it it gave mea gibberish and I tracked down the lawyer

(08:31):
and told me that, moreover,that it was an amount that neither he
had structured it, as he resolvedit or I didn' t think that
well, then I want to remembermy article was two thousand autumn of two
thousand ten and I did what Icould honestly, I did because it was
a gibberish. Of course, thatwas a skillful invention of the magistrate,

(08:52):
Mr Sheol, invention in the etymologicalsense of the word. I found him
finding a way out. That's for smoothing. That is to soften
the compensatory confiscation of the Lucro desanti and contained, as there are many
aspects of the Constitutional ruling one hundredeighty- one two thousand, which is
also a gibberish that dance to declareconstitutional and I also dedicated a book to

(09:20):
that one has a lot, butwith good writing. What is key to
the judgment is that, from thatjudgment, which was plenary, which made
it very clear that the jurisprudence didnot admit the direct normative value of that
rule. Well, that the Baremoof the two thousand and fifteen now corrects

(09:43):
it by the normative prediction of theprejudices of the difctional ones, it does
have recognition and they are compensated.However, exceptional profiles are compensated under what
I call the technique of restrictive concessionsor exclusionary inclusions. This judgment recognises the

(10:13):
remarkable category of exceptional perfidious to compensatethem as little as possible, to redo
them as little as possible before weget into the specific regulation that I think
is more interesting in this case.A theoretical expression is first to praise the

(10:37):
Baremo of two thousand fifteen, becauseit has a perfect structure, a perfect
structure that accommodates what I call thetheory of the double harmful tripod, double,
perjury tripod, Double because it radicallyseparates something that the Baremo of ninety
- five did not do and didnot do the previous jurisprudence, radically separate

(11:03):
the personal damage from the patrimonial.And by separating them it is perfectly clear
that in the Baremo of the ninety- five there was no real compensation for
the property damage, in particular theprofit making. That is so and that
is why they are now regulated thendouble, so by separation, which is

(11:24):
what calls it also the principle ofvertebration. But the principle of vertebration is
not only this radical separation, butwithin each of these two damaging manifestations it
does an exercise of consecutive individualization,that is, first part of what any

(11:48):
person suffers and what any person suffersfrom a situation goes death or injury is
what they give or not basic damage, is a common injury. Every person
who loses a finger has a commoninjury that is equal, which must be

(12:11):
equal for every person. Anyone wholoses their child in an accident goes to
their father. Both the father andthe mother, in principle suffer the same
basic damage, basic first level ofharmful individuation, second level, the particular

(12:33):
damages, which are those damages thatnot all people suffer that have the same
damage, that is, it isa particular damage that your only child,
your only child, dies, becauseif you have eight children the pain that

(12:58):
it produces you, the immense painthat it produces. The death of the
child is enormous, but it iscommon to the death of a child.
But you have the comfort of havingseven more of ancestry and, therefore,
a little attenuated, more than ora little more attenuated if you have other

(13:18):
children, is that you like itif you only have one. Of course
it' s the same, butI' ve seen a better one.
Seen like this. This is aparticular injury, a non- ordinary,
non- common injury suffered by someof the people who have the same harm.
And there' s a third levelof harmful individualization. We start from

(13:43):
the general to what is less general, more filming to the exceptional and what
is the real definition of exceptional injury? Exceptional injury is atypical injury, that
which is not regulated and exists andany exceptional injury as atypical injury, as

(14:07):
singular injury, must be compensated,unless the law prohibits it, unless the
law prohibits it, then limiting thepractice. What damage is exceptional, that
is, what damage is not regulated. And it' s interesting since there
are intrinsically exceptional damages. And extrinsicallyexceptional damages, strínsically exceptional harm is that

(14:37):
which, being possible to have beentypified, has not been criminalized. It
is a foreseeable harm that the lawdoes not provide, however, for intrinsically
exceptional prejudice is that injury. Whatis so rare that the legislator cannot even

(14:58):
astound to see it and can onlysay of it that if there is an
exceptional prejudice. Let' s getrid of it. This distinction is important
because the strictly exceptional damages, thatis, those that are if typifiable at
best by the way of the identityof reason, can serve to apply them

(15:24):
as particular pregios. Let me giveyou an example. The double death of
parents is regulated by law. Itis always said, I say simplifiedly,
the death of one father and thedeath of the other makes one plus one
three, not two, because ifyou die one father and you have the

(15:46):
other, because you have the comfortof the one you have left. With
the misfortune of the one who beginsnow, the death of the two parents
is a horror, a horror andtherefore there is a particular injury, because
the son is paid for the deathof the father, for the mother'
s part, for the death ofthe mother an identical or normally identical amount.
But if they have both died,there is a particular damage that is

(16:08):
not always given that it is theone that is regulated as a particular price.
Well, in the reform of thelaw that is foreseen an extensive interpretation
is made or the possibility is established, because whenever two relatives die to you,
the greater predifice than one by oneplus one, that is, if

(16:30):
you die your father and your son, the horror is greater, is greater.
And that could be incardinated by theway of assimilation, by identity,
by reason, by the corrective factor, at the particular price of double and
death. But if the analogue integrationapproach is not accepted, we have the

(16:55):
clause of the perficies of nationals whichdoes have normative value to contemplate the clause
of the though, of Article onehundred, of Article thirty- three five.
However, the legislator does not dareto deny hobbyal prefiles. The insurance

(17:15):
legislator does not dare to deny them, but is concerned to pay them and
then uses a series of consecutive schemesto make it clear that what I do
not grant is not compensated. Andthen we' re going to make a

(17:37):
picture of what they' re doingto them and what they don' t
make up for and how they're hurt by what Manuel said. With
the two articles to which reference ismade on thirty- three five, they
are given the exceptional damages caused bydeath eye, personal and exceptional and basic

(17:57):
damages. That' s for value, for value to look at that to
determine the value of five percent we' ll see it now, that is,
only in case of death. Exceptionalpersonal harm is done to them.
What does the law mean, thelaw. What you' re worried about

(18:18):
is exceptional property damage and that can' t be compensated. I give for
what I give, what I give, and I taso it twenty- five
percent maximum of the basic zuma.But what matters is that exceptional property perfides,
those are not reservable. But italso does not refer to particular personal

(18:44):
actions, only the basic personal poor. No. It is not worth it
is with proportionate criteria, with amaximum limit of increase of twenty- five
percent of the inhibition by personal prejudice. Thus, what harm is done to
them, exceptional personal damage, destroyingit makes it a patrimonial character. That

(19:08):
is now to be a good dayat most, twenty- five percent of
the value of the basic, thatis, that particular perks are not the
basis. The amount of the particularproperty does not serve as the basis for
determining the percentage. The amount towhich the percentage is applied is a very

(19:30):
destrictive rule. It' s avery deficial rule. The maximum with pro
- portionality criteria. It' sclear everything and for now it' s
called exceptional. Of course it isno longer said complement, it is not
said complement of the scale. Inthe case of de no cum de do

(19:51):
not collect all criteria no, butexceptional jeo. The name already defines you.
If I remember correctly, even thoughwe said we weren' t going
to talk about your sentence, whichwe talked about the other day, your
sentence, the thermal court, thecathomedics, don' t res. But
I want to remember that there aresome amateur premonitions to know that the one
played gives you. I think Iremember 15 percent. Yes, but the

(20:12):
doubt is and why not less andwhy not better than that it always gives
judgment alludes to criteria of proportionality and, for example, there are concepts that
I ask a hundred thousand and giveyou I give you seventy- five thousand
because I understand that it is moreproportional. I understand why Gari happens that
that is good and then in thisway we have already said that exceptional personal

(20:34):
damage caused by death and also personaland exceptional damage caused by permanent legions are
done to them? What is itthat the legislator wants, not to pay,
not to pay, nor the additional, personal and patriotic damages caused by

(20:59):
the temporal vision, which are themost important good. Well, I'
m also telling you that this sentencewe' re talking about is the prime
thing I see in all the yearsthat I' ve cooked up sectional prejudice.
I' ve asked for it severaltimes and never gave it to me
in the sentence. We' reabout to finish, although we could keep
talking about these things another day inthe famous Barra sentence that I mentioned on
that day. Yes, yes,there is a rick in the chapter in

(21:22):
the program twenty- two there isan exceptional preficio recognition that caused permanent and
well justified positions to look well justified. And then there are other judgments of
the first chamber, the second chamber, the supreme subject, which we could
also comment on where they are alsorecognized or denied, but it is also
dealt with in a judgment of thesecond chamber, uh in which the subject

(21:45):
is dealt with and not treated verywell by the chamber. But let'
s go that way is for otherdays conclusions of these articles, because this
precept has the value that it recognizesthe compensability of the personal damages of exceptional
and, in turn, has thetrapdoor that the norm is established to not

(22:07):
compensate for what they are patrimonial orpersonal that it has used for the temporal
tions and that, once these restrictionshave been made with and with what it
includes only above, it limits that. That percentage of twenty- five percent
to the compensation for basic damage,without computing at all the final result of

(22:27):
the previous practices. There is nojustification that the total basic and particular compensation
did not constitute the basis for applyingthe percentage and, in turn, the
determination of the percentage do not havewhy it can not be so important that
presenceal that it was to double theamount previewed in the clear aars why not

(22:48):
double, not clear of depending onthe circus, And is that, ultimately,
ultimately, the variable. What itexpresses is a huge distrust of the
judiciary. He does not believe inthem, because he believes that they will
get out of odri and will establishexorbitant incisions if he does not limit it

(23:14):
to the law, they want restrictiveconditions to function as servants of the law,
which is what he says. Well, I think this one has also
come very round to the explanation,because nothing, because we end this new
chapter and we call you to newsessions that will come in the future.
For many thanks, Mariano, asalways a pleasure to hear you, and

(23:38):
many thanks to what it is tothose who listen to us, And I
give very cordial greetings to my companionswho every time I leave a chapter send
me a message or call me orsimply offer me. You don' t
have to congratulate me You have toquote Mariano. I am a simple driver

(23:59):
from Podcast that the soul kills theMariano. In fact, that' s
why I, in his name,don' t lead to fear. You
have to be happy to the onewho has the good idea. That'
s a good thing we can bethe Maria has not been another until forever.

(24:29):
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