One of the essential elements for assessing the financial liability of the State is the proven existence of actual damage. Civil law follows the same logic: liability cannot arise unless the harm caused by an act or omission is real and effective, rather than hypothetical.
In our work as Insurance Law specialists, we have encountered numerous cases where an act or omission was undeniable, yet the absence of demonstrable and effective harm prevented any causal link from being established. As long‑standing case law reiterates—such as the Supreme Court judgment of 29 October 2008 (rec. 942/2003)—three elements must be present for tort liability to arise:
- An action or omission amounting to negligent or imprudent conduct attributable to the defendant;
- Actual, verifiable damage; and
- A causal connection between the conduct and the harm.
The Supreme Court judgment of 13 July 1999 emphasised that regulatory diligence is insufficient when factual reality shows that the safeguards intended to prevent foreseeable damage ultimately failed.
In practice, proving the existence of the act or omission and the causal relationship tends to be the most challenging part. However, determining the reality of the damage can also be problematic. The principle of effectiveness requires that damage be genuine and tangible before liability can be recognised. Without this requirement, compensation could be awarded for events that may never occur, resulting in unjust outcomes.
The Provincial Court of Alicante (Section 5, Judgment 148/2024, 8 April) reaffirms that tort liability demands proof of the existence and extent of damage. The injured party bears the burden of demonstrating the real economic loss suffered, in line with the rules of evidence in Article 217 of the Civil Procedure Act. Case law consistently states that compensable harm under Article 1902 of the Civil Code must be real, effective, and proven with precision. Consequently, compensation must reflect the actual value of the damaged goods at the time the loss occurred, not their new replacement value, in order to avoid unjust enrichment.
The Supreme Court has repeatedly underscored that compensation should restore the injured party’s assets to the position they would have held had the harmful event not occurred (see judgments of 19 December 2005, and earlier ones from 1994, 1987, 1992 and 1997).
A similar position is adopted by Commercial Court No. 15 of Madrid (Judgment 48/2023, 25 September), which insists that damage must be actual, not merely potential, and that compensation must correspond strictly to the effective loss or lost profit caused. While loss of profit may be recoverable, its assessment must rely on objective data—such as accounting records or expert analysis—and any benefits that the harmful event may have generated must be deducted to prevent unjust enrichment.
An important exception to the requirement of certain damage is the doctrine of loss of opportunity—the loss of a reasonable probability of obtaining a favourable result. This concept, recognised long ago in comparative legal systems and increasingly in Spanish case law, allows compensation where strict adherence to the principle of effectiveness would unfairly deny recovery. As noted by the Provincial Court of Madrid (Section 11, Judgment 420/2017, 27 November), loss of opportunity involves compensating for the disappearance of a probable advantage, whether economic or otherwise, thus avoiding the rigidity of an “all‑or‑nothing” approach.
Nevertheless, the burden of proving the seriousness and likelihood of the lost opportunity remains with the claimant. As reiterated by the Provincial Court of Madrid (Section 8, Judgment 105/2024, 27 February), compensation cannot be awarded where there is no reasonable certainty that the frustrated action would have succeeded. The claimant must therefore show that the conditions existed for the favourable outcome to be realistically achievable.
In conclusion, determining liability requires clear proof of real, effective damage. Although the loss‑of‑opportunity doctrine softens the strictness of this requirement, hypothetical or merely potential harm will not meet the standard of effectiveness necessary to establish liability unless the claimant can demonstrate a sufficiently probable chance of a favourable result.
The Insurance Law Department at Belzuz Abogados, S.L.P. remains at your disposal to examine your specific case with the highest level of professionalism and rigour.