Country:

Austria

Court:

Austrian Supreme Court, Decision of 9 July 2002, 2 Ob 253/01x

Facts:

The claimant demanded compensation because an aerosol spray can had exploded in his car and had covered its interior in deep red. What exactly caused the blast remained unclear. The claimant hat put the can in the console, underneath the radio, and left it there for a couple of days. He claimed that the can burst at a temperature below 50 degrees Celsius due to a deficiency in the metal plating.

The defendant manufacturer argued that the claimant had parked his car in the direct sunlight which heated the can so that it eventually exploded due to unusually high pressure inside the can. The spray cans, said the defendant, carried a warning that they were "under pressure" and that they "must not be exposed to direct sunlight and temperatures over 50 degrees Celsius".

The experts in this case were of the opinion that it was very likely that the can had burst at a temperature over 50 degrees Celsius. However, they could not rule out the possibility that it had exploded at a lower temperature. The Court of first instance ruled that the spray can was defective and allowed the claim. The Court of second instance upheld the judgement. Both of those Courts said that the question of whether the metal plating on the can was actually "faulty" could be left open

Decision:

The Supreme Court held that the claimant should have demonstrated why the spray can eventually exploded. As he failed to do so, he could not prove that the can was defective, and his claim had to be dismissed.

The Austrian Product Liability Act (APLA), in line with the Directive, declares that:

"A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:(1) the presentation of the product,(2) the use to which it could reasonably be expected that the product would be put [and](3) the time when the product was put into circulation."

The Court asserted that the test for determining what someone could reasonably expect of a product is an objective one and is not based on the subjective notions of the user. The decisive criterion for the defect was therefore the lack of safety that a typical consumer could expect of the product, considering the circumstances and the way he handled the product.

Such lack of safety, said the Supreme Court, the claimant has failed to prove. As the aerosol can itself carried a warning stating that the can was "under pressure" and that it "must not be exposed to temperatures over 50 degrees Celsius", a typical consumer could not expect that the can would endure higher temperatures. The expert evidence had shown that it was highly probable that the can burst at a temperature over 50 degrees Celsius. The claimant had managed to establish only a distant possibility that the can exploded at a temperature lower than that, and, under the general rules of Austrian civil procedure, the standard of proof required was a high, not a distant, possibility.

Comment:

This decision and two similar decisions of the Austrian Supreme Court can be seen to be consistent. An aerosol spray can, however, which carries a clearly visible warning that it should not be exposed to temperatures higher than 50 degrees Celsius (and thus should not be left in a car on a hot summer day), might very well explode if it is so exposed.

The claimant would probably have succeeded had he been able to prove either that the metal plating was "faulty" such that the can could very well have exploded at a lower temperature, or that the car was not exposed to direct sunlight or other heat source and that it was therefore likely that the can exploded at a lower temperature. In other words, the first option would have been to show the (most likely) cause of the defect, while the second would have been to illustrate such peculiar conduct of the product that it was for the producer to investigate the reason for the product's failure. At that point the burden would have been on the producer to show that the product was perfectly alright when it left his premises, or that the defect was one he could not have discovered when the product was supplied.

In doing so, exploring the precise cause of the defect will often be the only possibility for the producer to escape liability.

On the other hand, where a "typical consumer" must reckon with the product failing it is for him to show that the product would not have failed had it been made properly. In that case, proving the cause of defect will often be the only possibility for the consumer to succeed in establishing liability.