Motorists hitting traffic barriers

The European Union and other neighbouring countries have already designed and implemented different types of protections that cover the most vulnerable areas of traffic barriers, but in Spain these improvements are only implemented in cases where new roads are built, and this depends on the criteria of the competent administration for each infrastructure, and based on the applicable legislation, which in the majority of cases corresponds to Circular Order 221 of 1971, now repealed and amended by Circular Order 18/2004, on the criteria for using systems to protect motorcyclists, with the technical note of 25 October 2006, on the application to roads of systems for the protection of motorcyclists, both of the Directorate General of Roads of the Ministry of Development, which led to the final approval of the standard AENOR UNE 135900: 2008 (Official State Bulletin 30.10.08), which basically consists of evaluating the harm and the behaviour that a dummy suffers in special tests when it hits against a double barrier protection system at different speeds, the most recommended system to date for protecting motorists and cyclists from a potential collision against them.

Despite the obligation of public administrations to adapt public roads to the recommendations of the European Union in relation to the traffic barriers, it is described legally as a mere “recommendation” therefore we still have many roads with this containment element that is an authentic danger (for motorists, cyclists and the occupants of other vehicles where the bodywork is the human body). However, in the event of an accident where it is shown that the injuries caused were due to the improper installation of these dangerous containment barriers, our jurisprudence is opting for the compensation of victims with a clear criteria that despite the legislation being a “recommendation” the omission of the Administration to adopt a recognised measure, and one that is specifically presented as favourable for the reasonable elimination of risks is neither indifferent nor excusable.

So, even allowing for the fact that the staggering over time of the replacement of the containment barriers would constitute a correct functioning of the public service, this does not exclude the financial liability of the Administration for an injury caused due to the existence of these types of barriers, as the Administration is responsible for the coverage of this risk element as it is responsible for determining and implementing the best technical characteristics for fencing and barriers on the roads within its competence, thus the requirement needed for the estimation of the financial liability of the administration would be fulfilled for the victim not to have the legal obligation to cover the damage suffered (Supreme Court rulings of 23.07.2001, 01.12.2009 and 07/02/2012 among others). However, we should be aware that in most situations fault is apportioned, as it is considered that the victim (driver) has committed some kind of infringement such as excess speed or an inappropriate speed for the specific circumstances of the road, lack of attention etc..