You fell on a broken pavement: claiming against the authority
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
State liability is claimed against the authority responsible for the road within one year, which article 67.1 of Law 39/2015 counts from the event or, for physical or psychological injury, from recovery or from the point at which the lasting effects are established. You must prove the injury, the causal link with the public service and its financial value.
You were walking home along a pavement in your neighbourhood when a sunken slab, unmarked and with the hollow full of water, made you fall sideways. A broken wrist, two months off work, physiotherapy and a hand that no longer closes properly. The hospital gave you the report, but nobody called the local police or photographed the hole, and a fortnight later the council resurfaced the stretch. Now it answers that the pavement was in good condition and that you were not paying attention.
The case, in five lines
- What is brought
- A state liability claim against the authority responsible for the service, under article 32.1 of Law 40/2015, followed by a contencioso-administrativo claim if it is refused or left unanswered.
- Before which court
- First the authority that the road depends on, whether the council, the autonomous community or the State. Afterwards, the Contencioso-Administrativo section of the Tribunal de Instancia (the first-instance court) or the Tribunal Superior de Justicia, depending on which body decides.
- Deadline
- One year. Article 67.1 of Law 39/2015 counts it from the event or from the moment its harmful effect appears, but for physical or psychological injury it starts to run from recovery or from the determination of the extent of the lasting effects.
- Who can bring it
- The individual who suffers the injury to their property or rights, under article 32.1 of Law 40/2015, and their heirs where the injured person has died. Also anyone who has borne the resulting expense and can prove it.
- Financial risk
- Article 32.1 excludes force majeure and damage that the individual has a legal duty to bear, and article 34.1 excludes damage that could not be foreseen or avoided given the state of scientific or technical knowledge. If the case reaches court and is lost, costs may be awarded against you.
You need not prove negligence, but you must prove the damage was not yours to bear
Article 32.1 of Law 40/2015 gives individuals the right to be compensated for any injury to their property or rights, provided it results from the normal or abnormal operation of public services, except for force majeure or damage the individual has a legal duty to bear. Normal operation is no defence: what matters is that the injury was unlawful, not that anyone was at fault.
Paragraph 2 of the same article adds the filter that decides most of these cases: the damage claimed must in every case be actual, capable of financial valuation and specific to a person or group of persons. A fright with no injury is not actual, a general nuisance affecting the neighbourhood is not specific, and a lasting effect that cannot be turned into figures is not valuable. The claim is built on those three adjectives.
The year does not run from the fall while the injury is still developing
Article 67.1 of Law 39/2015 states that the right to claim lapses one year after the event or act giving rise to compensation, or after its harmful effect appears, and adds a rule of its own: for physical or psychological injury to persons, time starts to run from recovery or from the determination of the extent of the lasting effects. That second date is usually months ahead of the first.
In practice, the document that fixes that date is the medical discharge or stabilisation report, not the emergency record from the day of the fall. Filing before that report exists means valuing blind an outcome nobody yet knows, and filing more than a year later without it leaves the claim out of time. That is why the first thing requested is the complete medical history.
The causal link is won with the evidence gathered in the first days
Article 67.2 of Law 39/2015 requires the application to specify the injuries suffered, the alleged causal link between them and the operation of the public service, the financial valuation of the liability where possible and the moment the injury actually occurred, together with the submissions, documents and evidence the claimant intends to rely on. It is not a form to fill in: it is the claimant's burden of proof set down in writing.
The authority usually argues that the defect was visible and avoidable. The answer is factual: photographs of the hole with a measuring reference before it is repaired, the local police report, the medical records from the same day and any earlier neighbourhood complaints about that exact spot. Where the stretch has already been resurfaced, the later repair is requested as a document of the council's own file.
What the damage is worth is set by article 34, and the scale enters through it
Article 34.2 of Law 40/2015 requires compensation to be calculated under the valuation criteria of tax law, compulsory purchase law and other applicable rules, weighing prevailing market values, and adds that in cases of death or bodily injury the scales in compulsory insurance and social security legislation may be used as a reference. That is where the figure claimed comes from.
Paragraph 3 fixes the moment of calculation: the amount refers to the day the injury actually occurred, without prejudice to updating it to the date the procedure ends under the Competitiveness Guarantee Index, and to interest for late payment. Claiming late does not only risk the deadline: it also leaves out the updating and interest that can legitimately be asked for.
If several bodies share the road they all answer, and the contractor is no obstacle
Article 33.1 of Law 40/2015 provides that where liability arises from joint action by several authorities, all of them answer to the individual jointly and severally. Paragraph 2 provides that in other cases of concurrence liability is apportioned by reference to competence, the public interest protected and the intensity of the intervention, and is also joint and several where that apportionment is not possible. The claimant does not have to allocate blame.
The fact that the works were carried out by a contracted company does not shut the door either. Article 32.9 refers to the common administrative procedure legislation for determining the liability of authorities for damage caused to third parties during the performance of contracts, where it results from an immediate and direct order of the authority or from defects in the project it drew up itself. The claim is still addressed to the authority.
Silence is not an answer, but it opens the road to the court
Article 24.1 of Law 39/2015 expressly states that silence has a dismissing effect in state liability procedures. Nothing is granted by the mere passing of time, so waiting indefinitely for a letter that never comes only burns the calendar. Paragraph 2 clarifies that such implied dismissal has the sole effect of allowing the appropriate challenge to be brought.
From then on article 46.1 LJCA governs: two months from the day after notification of the express act ending the administrative route and, where there is none, six months from the day the deemed act arises. With an express refusal the clock is short, so the decision to sue is prepared before the letter arrives, not afterwards.
How we run the case, step by step
- 1
Fix the date the year starts from
The complete medical history is gathered and the discharge or stabilisation report is located. That document, and not the record from the day of the fall, determines when the period in article 67.1 of Law 39/2015 begins to run.
- 2
Identify the responsible authority and secure the evidence
It is checked which body that particular stretch depends on, and access is requested to the maintenance file, the incident reports and any later repair orders. If the defect is still there, it is documented with photographs and measurements before it is fixed.
- 3
Value the damage with method, not by guesswork
Days of harm, lasting effects, expenses and loss of income are quantified following the criteria in article 34.2 of Law 40/2015, with a medical expert report where the outcome is arguable. The figure refers to the day of the injury and its updating is requested.
- 4
File the claim with the full supporting material
The document is drafted with what article 67.2 of Law 39/2015 requires: injuries, causal link, financial valuation and the moment the damage occurred, together with the documents and the evidence intended to be relied on.
- 5
Answer the service report and the draft decision
The authority requests a report from the service involved, which almost always denies the causal link. It is rebutted during the submissions period with the evidence already prepared, and the draft decision is answered before the final resolution is issued.
- 6
Sue if they refuse or stay silent
With an express refusal or with the dismissing silence of article 24.1 of Law 39/2015, a contencioso-administrativo claim is brought within the period in article 46.1 LJCA, and late payment interest is claimed as well.
The evidence that decides the case
- Dated photographs of the hole with a visible measuring reference, taken before the authority repairs the stretch.
- The local police report or statement recording the exact place, the time and the condition of the pavement.
- The emergency record from the same day and the discharge or stabilisation report establishing the extent of the lasting effects.
- Earlier neighbourhood complaints or notices about that exact spot, proving the defect was already known.
- The council's maintenance file and the later repair order, requested from the council itself.
- The medical expert report quantifying the lasting effect and the harm under the criteria in article 34.2 of Law 40/2015.
What closes the door
- Going home without photographing the defect or calling the local police. Reconstructing it later, once the stretch has been resurfaced, is far harder.
- Counting the year from the day of the fall when article 67.1 of Law 39/2015 counts it from recovery or from the determination of the lasting effects, and claiming before knowing what those effects are.
- Waiting indefinitely for an answer. Article 24.1 of Law 39/2015 makes silence a dismissal in state liability matters, so nothing is gained by letting time pass.
- Asking for a round figure with no breakdown. Article 32.2 of Law 40/2015 requires damage that is actual, financially assessable and specific, and without a breakdown it is not.
- Accepting the argument that the works were done by a company. Article 32.9 of Law 40/2015 provides for the authority's liability for damage caused during the performance of contracts in the situations it sets out.
The law that applies
- Art. 32 Ley 40/2015. Recognises the right to compensation for any injury resulting from the normal or abnormal operation of public services, except force majeure or damage there is a legal duty to bear, and requires the damage to be actual, financially assessable and specific. BOE-A-2015-10566
- Art. 33 Ley 40/2015. Makes authorities acting jointly liable jointly and severally and, in other cases of concurrence, apportions liability by competence, the public interest protected and the intensity of the intervention, with joint liability where apportionment is impossible. BOE-A-2015-10566
- Art. 34 Ley 40/2015. Declares compensable only damage there is no legal duty to bear, excludes what could not be foreseen or avoided given scientific and technical knowledge, refers valuation to tax and compulsory purchase legislation with possible reference to compulsory insurance scales, and places the calculation on the day of the injury with updating and interest. BOE-A-2015-10566
- Art. 67.1 Ley 39/2015. Sets a one year limitation on the right to claim, counted from the event or from when its harmful effect appears, and for physical or psychological injury from recovery or from the determination of the extent of the lasting effects. BOE-A-2015-10565
- Art. 67.2 Ley 39/2015. Requires the application to specify the injuries suffered, the alleged causal link with the operation of the public service, the financial valuation where possible and the moment the injury occurred, attaching documents and the evidence proposed. BOE-A-2015-10565
- Art. 24.1 Ley 39/2015. States that silence has a dismissing effect in state liability procedures, so that the passing of time does not grant compensation but merely opens the route to challenge the outcome. BOE-A-2015-10565
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Do I have to show the council did something wrong?
Not in the sense of proving a specific act of negligence. Article 32.1 of Law 40/2015 covers injury resulting from the normal or abnormal operation of public services. What must be proved is the causal link between the state of the road and your fall, and that this is not damage you had a legal duty to bear, nor a case of force majeure.
More than twelve months have passed since the fall. Am I too late?
Not necessarily. Article 67.1 of Law 39/2015 provides that for physical or psychological injury time starts to run from recovery or from the determination of the extent of the lasting effects. If the discharge with lasting effects is later than the fall, the year runs from then. What matters is the date on the medical report closing the recovery process.
Who pays if the pavement is maintained by a contracted company?
The claim is addressed to the authority. Article 32.9 of Law 40/2015 provides the procedure for determining its liability for damage caused to third parties during the performance of contracts, where it derives from an immediate and direct order of the authority or from defects in the project it drew up. Article 35 extends the regime to private law entities through which it acts.
How is the amount I can claim calculated?
Article 34.2 of Law 40/2015 refers to the valuation criteria of tax law, compulsory purchase law and other applicable rules, weighing market values, and allows the scales in compulsory insurance and social security legislation to be used as a reference for bodily injury. Paragraph 3 places the calculation on the day of the injury, with updating and late payment interest.
And if the council does not answer me at all?
Article 24.1 of Law 39/2015 provides that in state liability procedures silence has a dismissing effect, and paragraph 2 makes clear that such implied dismissal serves only to allow the appropriate challenge to be brought. Silence does not decide in your favour, but neither does it block you: it opens the court route within the periods in article 46.1 LJCA.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.