Country:

Portugal

Court:

Court Decision from the Oporto Court of Appeal (Tribunal da Relação do Porto) of the 27th of March 2003 (Case 0330634)

Facts:

The plaintiff bought a gas jug that, due to its explosion, caused a fire. He lodged a claim on tort against C, the producer, D the distributor, and E, the insurance company.

Decision:

The defendants alleged and proved that the plaintiff was negligent. However, the Court decided that «product liability does not loose its characteristics due to any negligent actions from the plaintiff. » Therefore, there is a compensation that should be attributed to the plaintiff. On the contrary, liability would not exist if the plaintiff was aware of the products' deficiency and, besides that, continued to use the good, which was not the case.

Ratio of the decision:

Regarding the Decree-law nº 383/89, the producer or manufacturer is liable without fault for the damages caused by the defectiveness of the products that he puts into circulation. Inspired by Calvão da Silva, the Court decided that, "to decide if a product is deficient or not, the judge must direct his attention towards the moment when the product was put into circulation on the market rather than the moment when damages occurred. If in that first moment the product does not show any signs of deficiency or malfunction it is to be considered "perfect", even though the product has improved in the future by its producer". The scholar also mentions that "the producer can only be liable for manufacturing deficient and misleading information in its instructions from the moment the product is put into circulation on the market". The producer must try to prove the inexistence of the deficiency. In this case, the defendant did not manage to prove the inexistence of the deficiency. The court determined that "because the bottle did not expel gas, and that it was sold and resold without any complaints, that does not mean that its deficiency does not exist since the moment it was put into circulation in the market" because "in general, at the moment products are bought, most of their deficiencies are not sensitive in that exact moment. But that does not mean that the deficiency does not exist since that exact moment".However, the Court questioned whether or not the behavior of the plaintiff had any relevance for the cause of the damages. Article 7º of the Decree-law nº383/89 states that if the plaintiff committed an action that contributed to the damage, then the Court can reduce or exclude the indemnity. In this case, the plaintiff had a negligent behavior, because he knew about the gas flee and he did not shut down. Nevertheless, the plaintiff is not the only one liable for the accident. This only occurred because there was a gas flee, therefore, the producer is still liable.

Follow-up:

This case was appealed before the Supreme Court of Justice, which decided in the same way and with the same arguments.

Case Decision from the Portuguese Supreme Court of Justice of the 16th of November 2003 (Case 03B2959)