As the entire world knows, football is one of Spain’s favourite sports and well yes, Spain is good at football - so it is no surprise that many times Spanish judges have found themselves considering issues of liability arising from injuries suffered by footballers.
And in this respect, the attitude of the courts has always been unanimous and endorsed by the Supreme Court back in October 1992, where it was held that with regards to games or sports, the risk of injury is inherent to that activity. So, footballers assume the risk of injury – but that said, only to the extent that the conduct on the pitch does not go beyond the accepted norms for the beautiful game. Injury from the ordinary silly tackle will be an assumed risk. But where there is a targeted and intentional dirty tackle with studs and aggression - not permitted by the rules and thus beyond normal anticipated risks of the game, this is not an assumed risk, but potentially an assault that could give rise to even criminal liability.
In practice, this doctrine has meant that to pursue a claim for injury whilst playing football, the claimant must prove that the injury suffered was caused by an unusual or unjustified increase in the risk inherent to the game.
But playing the game and watching the game, are two very different things – or at least that is what you would normally expect. However, thanks to a recent Supreme Court decision, the issue now is, do spectators also assume the risk inherent in the sporting activity they are merely watching – and if so, when is the injury part of the usual risk of the game?
Although a number of Appeal Courts have ruled on these issues, the Supreme Court – which is the only court in Spain that can create precedent, had not up until now expressed its own view. On the 13th February 2018 the Supreme Court at last handed down judgement involving the insurer of the Football Club Real Zaragoza and an eye injury to a spectator who took a ball to the head whilst watching the game from the stands.
The Supreme Court held that the risk of taking a ball to the head is not only high and known but assumed by spectators as normal. Thus, the causal nexus required to establish liability would not the relation between the physical ball and the injury, but the link between the risk assumed and the injury. Consequently, having assumed the risk that you can be hit by a ball in a stadium during a football match, no liability can arise as no negligent or wrongful action or omission can be attributed to the organizers. Consequently, in this case the Supreme Court held that the Club was not liable.
In this judgment, the Supreme Court is also opening the door to other similar types of cases wherever it is possible to identify breaches or faults in the safety measures adopted by sport organizers. That said, the existence of such risks would not necessarily mean the automatic attachment of liability given that the evaluation of that risk will depend always on the facts – something beyond the simple bad luck of being in the wrong place at the wrong time.
Consequently, for football fans in Spain, watching their team lose is not the only risk that the spectator accepts when sat in the stadium cheering on their side…