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Country:

Spain

Court:

Court of Appeal of La Coruña, Judgement of 21 June 2002 [AC 20021348]

Topics:

Defective biscuit. Scope of application of LRPD. No application of LGDCU. Burden of proof

Articles:

Product Liability Act (LRPD), Final Disposition 1ª, Art. 5.

Facts:

The decision deals with the damage caused to the teeth of the victim when chewing a biscuit produced by the defendant. During the proceedings it was proven that the affected biscuit, due to a manufacturing defect, contained hard pieces of sugar usually used in pastry making.

The decision of First Instance rejected the claim, but the Court of Appeal partially accepted the appeal presented by the claimant and held the manufacturer of the biscuits and its insurer solidarily liable and that they had to pay €8,000 as compensation for the damage suffered by the claimant. The damage consisted in the loss of an incisor we which also had the function of holding a dental prosthesis up, as well as the inconvenience caused (wasted time in healing, visits to specialists, undergoing surgery, disturbances while eating, etc...)..

Decision:

The court holds that the applicable Act is not the old LGDCU but the new LRPD since "pursuant to the First Final Provision of LRPD, Articles 25 et seq. LGDCU are not applicable, The Act of 6 July, 1994 (i.e. LRPD) adapts our law to the Directive 85/374/CEE of 25 July, 1985, and the European Court of Justice has declared in its judgments issued on the 25 April, 2002, that the general norms, even when they are more beneficial for the consumer, can be restricted or limited as a result of the implementation of this Directive". According to the court, "Article 5 of the Act 22/1994 of 6 July provides that the victim must prove the defect, the damage and the causal link between them".

Comments:

This decision deals with a typical case of damage caused by a manufacturing defect. As regards the proof of the defect, the decision does not take the specific rule included for these sorts of defects in the Spanish Act into account. This rule establish a rebuttable presumption of the defect when the specific item causing damage offers a level of safety which is lower than the level offered by the rest of items of the same series (cf. Art. 3.2 LRPD). However, the decision considers that the defect has already been shown starting from other data furnished by the parties.

The decision deserves criticism in one crucial point. After recalling that Art. 5 LRPD requires the claimant to prove the defect, the damage and the causal link between them, asserts that this requirements "in short, they coincide with the classical requirements of tort liability for fault as established by Art. 1902 of the Civil Code". This idea is totally mistaken since, as it is well known, both the Directive and the national Acts of implementation establish a strict liability regime. This circumstance has also been pointed out by the ECJ in Commission v. United Kingdom of Great Britain and Northern Ireland (decision from 29.5.1997, Case C-300/95) and is also expressly declared in the Preamble of the Spanish product liability Act. (cf. Cdo. 3).

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