EL NEXO CASUAL EN LOS ACCIDENTES DE TRÁFICO
Podríamos empezar nuestro artículo de hoy haciéndonos la siguiente pregunta: ¿Por qué te tiene que pagar una Compañía Aseguradora una indemnización si sufres un accidente de tráfico? La pregunta parece un poco absurda, pero en Jurisleg pensamos que no hay preguntas absurdas porque la curiosidad nunca puede ser considerada como tal, en todo caso habrá respuestas absurdas…
Si preguntamos a cualquier persona acerca de si está a favor de que un accidentado cobre una indemnización, la respuesta que obtendremos en la inmensa mayoría de los casos es que sí ¡faltaría más!, encima que le dan un golpe lo que hace falta es que el pobre no cobre… ¿Y si a ese mismo sujeto le preguntamos que por qué tiene que percibir una indemnización? La respuesta ya no estará tan clara, pero a buen seguro que de su boca saldrían palabras tales como compensación, resarcimiento, reparación, derecho, daños…
Como casi todo en esta vida, la respuesta la encontramos en la Ley. Así, el Art. 1902 del Código Civil nos dice lo siguiente: “El que por acción u omisión causa daño a otro, interviniendo culpa o negligencia, está obligado a reparar el daño causado”. Como vemos, nuestro anciano Código Civil recoge un axioma que es propio de una sociedad civilizada: el que causa un daño tiene que repararlo; o como se suele decir más coloquialmente: “el que rompe, paga”.
Ahora bien, imaginemos que planteamos a nuestro interlocutor la siguiente cuestión ¿todo el que sufre un accidente de tráfico tiene derecho a percibir una indemnización? A buen seguro que aquí le entrarían las dudas: “hombre a todo el mundo…”. Pero como nuestro amigo es una persona de recursos seguro que daría rápidamente con el quid de la cuestión: “si no ha sufrido daños, no tiene derecho a percibir indemnización; además si él ha tenido la culpa tampoco tiene derecho…”. Por lo tanto, no todo el que sufre un accidente de tráfico tiene derecho a percibir una indemnización, sólo aquellos que hayan sufrido algún daño en el accidente y que además sean “víctimas” del mismo.
Poco a poco nos vamos aclarando. Ya estamos en condiciones de decir que para que se tenga derecho a percibir una indemnización deben darse al menos tres circunstancias, que son las que recoge el Código Civil:
- que haya ocurrido un accidente.
- que a consecuencia de ese accidente se sufra un daño.
- que el accidente lo haya causado un tercero.
Pero ¿realmente son tres los requisitos que deben darse para que se tenga derecho a percibir una indemnización? Repasemos… que ocurra un accidente (primer requisito), que se sufra un daño (segundo requisito) y que el daño lo cause un tercero (tercer requisito). A priori en este repaso no nos faltaría ninguno de los tres elementos que hemos señalado antes… Pero si leemos con detenimiento veremos que falta algo: en la condición que señalábamos antes con la letra b) es decir, en el segundo requisito, hay un elemento escondido que ha podido pasar desapercibido: decíamos que se debe sufrir un daño a consecuencia de ese accidente. Pues bien, ese “a consecuencia de” es lo que denominamos nexo causal. Y su trascendencia es mucho mayor de lo que a priori parece, como veremos a continuación.
La definición técnica del nexo causal es “la relación existente entre la acción u omisión causante de un daño (en nuestro caso el accidente de tráfico) y el daño propiamente dicho”. En otras palabras, el nexo causal es una relación causa-efecto que permite establecer los hechos susceptibles de ser considerados determinantes del daño y cuál de ellos es el que ocasionó el perjuicio tangible. Como decíamos antes: nexo causal es que a consecuencia de un accidente se sufra un daño.
El nexo causal (junto con la valoración de la indemnización) es el principal caballo de batalla de las Compañías Aseguradora y el argumento estrella para eludir su responsabilidad. Sin entrar en mucha hondura podemos decir que cuando es necesario solicitar la intervención judicial para cobrar una indemnización, en un amplio porcentaje de los casos la demanda vendrá motivada por la negativa de la Compañía Aseguradora a pagar dicha indemnización porque considera que no existe tal nexo causal. Tan importante es el nexo causal que el Art. 135 de la Ley sobre Responsabilidad Civil y Seguro en la Circulación de Vehículos a Motor en su redacción dada por la controvertida Ley 35/2015 regula los criterios de causalidad, es decir, nos dice que condiciones deben darse para considerar que entre un accidente de tráfico y las lesiones que manifiesta la víctima existe nexo de causalidad. Esos criterios de causalidad son los siguientes:
- Criterio de Exclusión, es decir, no existe otra causa que justifique la lesión.
- Criterio Cronológico, que significa que la lesión debe manifestarse en un plazo que sea médicamente explicable. La ley establece un plazo máximo de 72 horas para que se manifieste la lesión. No tiene mucho sentido acudir al médico manifestando un dolor y achacarlo al accidente de tráfico que ocurrió hace 10 días…
- Criterio Topográfico que consiste en que haya una relación entre la zona corporal afectada por el accidente y la lesión sufrida. Un ejemplo podría ser el siguiente: a consecuencia de una colisión por alcance en un turismo la víctima sufrió la rotura de un diente… Salvo que no llevara puesto el cinturón de seguridad o éste fallara y se hubiese golpeado contra el salpicadero o cualquier otro objeto, es muy difícil justificar dicha lesión.
- Criterio de Intensidad. Sin duda alguna, el criterio más polémico de los cuatro que componen el nexo causal y el argumento más utilizado por las Compañías Aseguradora para negarse al pago de las indemnizaciones. Consiste en la adecuación entre la lesión sufrida y el mecanismo de su producción, teniendo en cuenta la intensidad del accidente y las demás variables que afectan a la probabilidad de su existencia. En otras palabras: que el accidente sea de suficiente intensidad como para poder producir lesiones. Este criterio es sumamente controvertido ya que existen evidencias científicas de que incluso el más leve de los accidentes puede provocar lesiones. Tan es así que próximamente dedicaremos un monográfico a este asunto.
En resumen, para tener derecho al cobro de una indemnización con base al Art. 1902 del Código Civil en el ámbito de los accidentes de circulación deben darse todos estos supuestos:
1º) Que se haya producido un accidente.
2º) Que exista una víctima de ese accidente que haya sufrido un daño o lesión.
3º) Que la víctima no sea el culpable de ese accidente.
4º) Que exista nexo causal, que implica lo siguiente:
4.1.) Que la lesión no provenga de otra causa distinta al accidente.
4.2) Que la lesión se manifieste en un plazo de tiempo prudencial y, en cualquier caso, antes de las primeras 72 horas desde que se produce el siniestro.
4.3) Que la lesión se localice en una parte del cuerpo compatible con la forma de producirse el accidente.
4.4) Que el accidente sea de una intensidad suficiente como para producir lesiones. Aunque como ya hemos manifestado, este criterio es sumamente controvertido.
En cualquier caso, nuestro objetivo como abogados expertos en responsabilidad civil es, sin duda, conseguir que prevalezca siempre la Justicia. Por ello, en Jurisleg ponemos todos nuestros recursos al servicio de nuestros clientes para conseguir la indemnización justa que, conforme a Ley, pueda corresponderles.
Francisco M. Orellana Vega.
Letrado de JURISLEG.
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