Country:

Spain

Court:

Provincial Audience of Cantabria, 7 November 2000

Topics:

Claimant was injured as a result of the explosion of a bottle. Joint and several liability of the manufacturer which affords the plaintiff to sue whomsoever manufacturer regardless of the fact he has sued any other one previously.

Articles:

Product Liability Act 22/94 (PLA) Articles 2, 3, 4, 5 and 6.

Consumer Protection Act 26/84, Article 7

Civil code 1889, Article 1144

Facts:

The Provincial Audience of Cantabria dismissed the appeal of the defendants, a manufacturer of refreshments which was found liable for damages in First Instance. Irrespective of the fact that there may be further manufacturers liable for the injuries caused by the bottle to the claimant, the Court came to say that nothing should refrain the Court to rule on the liability of the defendant. The Court held that the package of 6 bottles never had the safety one may legitimately expect since it must afford for a safe handling whichever the way the consumer handles the package. The level of safety must therefore be the same regardless whether the plaintiff caught the package through the two holes on the case of bottles. It follows from that that the plaintiff was never negligent.

Decision:

The Court first reminded the claimant that Articles 25-28 of the Consumer Protection Act are not applicable where the product is included in Article 2 of the Product Liability Act, namely where the claimant suffers personal injuries. Since the defendants alleged that further manufacturers could be liable the Court held that:

- Article 7 of the Product liability Act expressly states that liability will be joint and several.

- The Court made use of the civil code, article 1144 thereof states that "The debtors will remain joint and severally liable for any action the creditor may have against them. While the debt has yet not fully paid off the creditor will be entitled to sue different debtors regardless whether he has sued previously one of them"

The Court confirmed the validity of indirect evidence as well as accepted presumptions and judgements of inference where the case is unclear.

Comments:

It is noticeable that the overlap produced by both Consumer Protection Act and Product Liability Act has not yet been fully overcome by practitioners. Although the Consumer Protection Act regulates liability for defective product (Articles 25-28), it is to bear in mind that in virtue of the Final Proviso of the Product Liability Act this Articles are not applicable where the products are included in Article 2 of the latter. Yet, Judges still have to make the parties clear that they must based their claims on grounds of the Product Liability Act.