Accidents in Spain in Public Places or Due to Defective Premises

Accidents in public places or caused by dangerous premises are dealt with in a special way in Spain. Is it worth claiming if you have been hurt?

This guide describes, in particular, how to deal with an accident in the area of Andalusia/Andalucía – which contains the Costa del Sol.  Please note that certain aspects of the law in Spain vary from one “autonomous community” (comunidad autónoma)  to another. See a map here. We have – or soon will have – specific guides covering some of the individual areas of Spain.  See the side bar for what is available.

Introduction

Many people are injured each year as a result of defective premises in Spain. Some of the injuries can be extremely serious – even life-changing. Others can be less dramatic but still cause you significant pain and financial loss. For example:

  • People fall through unsafe windows
  • People slip on wet surfaces in bars and restaurants
  • People fall down hidden steps or on uneven surfaces
  • People are injured when things fall onto them
  • People fall in the street due to the poor conditions of pavements or the road surface
  • People are injured or killed as a result of badly maintained gas heaters

Video guide to accidents due to defective premises in Spain

You can get a quick overview of accidents caused by dangerous premises in Spain by watching this video interview (below) with Spanish lawyer Antonio Manzanares. Learn more by scrolling down and reading the detailed guide he has written with us.

Can a foreigner claim compensation for an accident in Spain?

The law applies equally to Spanish people and to foreigners. Being a foreigner should make no difference to your chances of success when claiming for an accident in Spain.

In some cases, you may have the impression of being in a weak position as you may think that the other party will be known in the area where the court is located. Even worse – as the owner of a local Spanish business – he is likely to be an influential local. In these circumstances, particularly if the accident claim is being made in a small town in Spain, it is sometimes suggested that the foreigner will be “rowing uphill”.

In those cases, hiring a well known local lawyer is very important, as you ensure that you will have on your side someone who will provide you with not only legal expertise but also local knowledge.

An extra safeguard is that a very large percentage of accident cases in Spain end up passing as an appeal from the local court to a more distant appeal court, where any distortion due to local influence is unlikely.

In our experience, the obstacles to foreigners making accident claims against local people are generally overstated.

How can a foreigner claim compensation for an accident in Spain?

The rules

In Spain the owners of premises – hotels, restaurants, shops, apartments, offices etc. – are legally responsible for the safety of people using those premises. They are also responsible for many dangerous defects in those premises.

Similarly, the Spanish government and public authorities are responsible for any injuries or losses caused by defects in roads, pavements and other public areas owned by them.

It is important to establish, at the beginning, whether the defect that injured you or caused you financial loss was one that would trigger the right compensation in Andalucía. This is one of the first pieces of advice that your lawyer should give you.

It is not every defect or every accident that will give rise to a claim for compensation in Spain.

In Spain, the duty to pay compensation will only arise if the defect was something that the owner actually knew about or which he should reasonably have known about. It also only arises if the risk is one that, in Spain, is thought of as a risk sufficiently serious to demand protection.

It will come as no surprise that different countries have different standards –and levels of acceptance – for risks of all kinds. In many places around the world you may see high, unguarded drops off the edge of pavements – or hotel balconies with safety rails set at such a low level that they are more likely to cause you to fall over the edge than to protect you from doing so!

You must not assume that just because (for example) stairs in public places are always marked with a white stripe in the country where you live, that failure to do so in Spain will give rise to a claim for compensation if you suffer an injury. In Spain, the safety standards required could be different to those in your country. Your lawyer will tell you whether the problem that caused your accident is one that will give rise to a claim for compensation in Spain.

Does the owner have any other responsibilities?

In certain cases in Spain, the owner will not only have the responsibility to pay compensation for damage caused as a result of his defective premises (this is called ‘civil responsibility’). He could also face the prospect of criminal responsibility if the standard of his conduct fell far below what could reasonably be expected. This is important for three reasons.

Firstly, if there is criminal responsibility, the accident claim might be pursued by the Spanish police or other enforcement agency (in which case it costs you nothing).

Secondly, in simple and straightforward cases, the judge in the Spanish criminal courts has the right – as well as punishing the wrongdoer – to make an award of compensation for the civil claim.

Thirdly, and possibly most significantly, if a Spanish property owner feels he is at risk of criminal prosecution – and therefore at risk at going to jail – he might be more inclined to settle any civil claim for compensation, if that is going to make his problem go away.

So the tactics employed in making your accident claim in Spain can have a large impact on your prospects of recovery, as well as the speed and costs of your case.

What can you claim for?

Claims against private individuals and companies in Spain

Generally, you will be able to claim for compensation for any physical injuries you suffer and for compensation for financial losses directly and clearly attributable to those injuries.

For example, if you break your arm and are unable to work for six weeks, you will be able to claim general compensation for the broken arm and the pain and suffering associated with it plus your medical expenses and loss of earnings for the six week period.

In some cases, you may also be able to claim where there is no physical injury. For example a defective chimney could collapse on top of your car. In this case, the level of compensation would be the reasonable cost of repair or replacement.

If you are part of a group – such as your family – who are all injured as a result of the same defect, each person will have a separate claim against the owner. The parents of children will have a claim on the children’s behalf.

If you are unlucky enough to be killed as a result of a defect in premises, your heirs will have a claim on your behalf.

Claiming against the Spanish government

If your claim is against the Spanish state – either central government for facilities controlled by them or local government for items they have allowed to become defective – your rights are different.

The test of whether the defect was sufficiently serious and sufficiently obvious to justify a claim becomes more difficult to prove.

There is also the very practical problem that taking action against the government –which has almost unlimited resources at its disposal – can be much more costly and time consuming than claiming against a private individual.

Any potential claim against the Spanish government – for example, as a result of a defect in a road – needs to be very carefully considered by your lawyers. They should advise you about the legal prospects of the claim as well as its probable cost and the length of time the claim is likely to take – and whether you are likely to ever receive your money.

In these cases, it is advisable not only to take pictures at the time of the accident but also to call the police to the site, so they can take an official declaration (statement) form you and from any persons that could have witnessed your accident.

What if the accident was partly my fault?

What if the accident was partly my fault? If the accident was partly your fault – for example, if you fell through a window or off a balcony whilst drunk – at the very least the amount of compensation that you receive will be reduced. The extent of the reduction will depend upon the extent to which the accident was your fault.

In some cases the Spanish courts can find that the cause of the accident was so much the responsibility of the person who suffered it that they will not make any award against the owner of the premises.

In this case, it is important to get early advice of your lawyer, as in some cases it is better not doing anything rather than incurring legal costs with small chance of success.

How much am I likely to receive?

Of course, this depends upon the seriousness of your injuries, the extent of your financial losses and the extent (if any) to which you contributed to the accident.

Calculating the amount you are likely to receive requires expert guidance. A good lawyer, who is experienced in dealing with such claims, is likely to be able to obtain significantly more compensation than you would if you were acting on your own or through a lawyer with little or no relevant experience.

The basic approach to calculating compensation is that a report is prepared by a court-appointed expert.

That report will look at both your physical injuries and your financial losses.

In the case of physical injuries, the court operates what amounts to a tariff. A broken arm is worth one amount of money, the loss of a leg a totally different – and much larger – amount. This process can produce some slightly strange results but at least it means that it is relatively straight-forward to calculate the amount you are likely to receive. Below is a small sample of that tariff.

 Injury Case Typical Compensation
35-year-old man: broken arm; off work for six months Between €9,360-€18,000
25-year-old woman: substantial scarring to lower leg Between €6,679-€14,399
Death of 40-year-old married man and father of two children (mother non-working) €340,000

As far as financial loss is concerned, you will only be entitled to recover losses directly attributable to the accident and that should have been foreseeable by the owner of the building. In some cases these losses will be capped (sometimes at quite a low level) by the local court.

For example, there may be a maximum amount that it will award for weekly loss of earnings. That amount is likely to reflect local earning levels – so bad luck if you are a banker earning €2million a year.

Local lawyers are always reluctant to give you an estimate of the amount of compensation you are likely to receive as it is very difficult to determine this because it depends on many factors. However, they will give you a fair idea on whether it is worth your while for you to embark upon any claim against the owner of the property.

Is the owner of the premises likely to have insurance?

In most cases the owner should have insurance of some kind.

What are the time limits for claiming?

A claim for compensation in respect of an accident causing injury must be made within six years of the date of the accident or (if it is later) of the date upon which you became aware of the injury.

If you fail to make a claim within this time-frame you will lose all right to do so.

You should not fall into the trap of thinking that it is all right to leave things until the last moment before making a claim. Gathering the evidence to support your claim can take some time and, after a few years, the evidence may well have disappeared or be impossible to find. Therefore, it is good advice to start a claim as soon as you are aware that you may have a case.In most cases, this means as soon as possible after the accident has occurred.

Making a claim

How do I make a claim?

In reality you will have to see a lawyer.

In theory, you can bring a case yourself but your knowledge of the legal system, the technicalities of the law and the Spanish language is unlikely to be good enough to make this a real possibility.

As always, if you can do so it is a good idea to find a lawyer who has experience in the field of dealing with accidents. Not all lawyers will have this. This is likely to make the process of claiming faster and more successful. It is also likely to mean that the initial advice you are given is more accurate.

How long does it take?

A court case in relation to an accident is likely to take about two years from the date when you first see your lawyer until the date upon which the case is heard.

However, you should be aware that in Spain it is extremely common for the person who loses a court case to appeal to a higher court. In this case, it is likely to be another two years before the case is resolved. This also, of course, increases the cost.

Whilst there are, theoretically, further rights of appeal these are not likely to be invoked unless there is some serious doubt about the validity of the judgement in the lower courts.

How much does it cost?

This will vary depending upon the complexity of your case and a number of other factors. However, at the date of writing this guide the typical costs of a simple case would be:

 Item Cost (including any VAT/IVA)
Fees etc paid to other people on your behalf €190
Professional Fees €1,000
Taxes None
Other payments €100

Complicated cases could cost a lot more.

You may be able to claim some or all of these expenses against your travel or other insurances. It is worth checking this out at a very early stage as you will need to notify the insurance company of your intention to make a claim. Your lawyer should be able to do this on your behalf and in such a way as to maximise the chance of them contributing to the cost.

Is any form of free legal assistance available?

No.

Can claims be made on a ‘no win, no fee’ basis?

‘No win, no fee’ arrangements are not permitted under Spanish law.

What happens if I lose?

If you make a claim and lose then it is almost certain that you will be ordered to pay the legal fees and expenses of the other party. These can be a lot of money – at least as much as your own fees and expenses – and so you should only proceed with a claim if, based on the advice of your lawyer, you are confident that you have a good chance of success.

Expats’ Tips

Have you ever had an accident in Spain? Tell us about it and share your story by emailing office@guides.global.

Conclusion

Before you decide to make a claim due to defective premises, make sure to consult a lawyer who specialises in accidents. If you do not you could find yourself going through a great deal of time and money for little or no result.

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