Country:

Spain

Court:

Provincial Audience of Albacete, judgement of 9 March 2000

Topics:

Liability of the gas provide as a consequence of a explosion of a gas cylinder. Strict liability of the provider of gas. Burden of the proof.

Articles:

Product Liability Act 22/94. (PLA) Article 5.

Consumer Protection Act 26/84 (CPA) Articles 25-28

Facts:

The claimant's relative (the kinship is not disclosed) died as a consequence of a gas explosion. The plaintiff filled actions against both the gas provider and the insurance company. The Court of First Instance condemned the defendants to pay 2,094 Euros for damages resulting from the gas explosion

1. The defendants appealed to the Provincial Audience alleging that the decision of the lower court did not provide enough evidence of the casual link between the explosion and their negligence. The defendants alleged that the plaintiff did not properly use the gas installation.

2. The plaintiff alleged that in virtue of Articles 25-28 of CPA 26/84 the burden of proof rests on the manufacturer or seller. On the other hand, the defendants claimed that the Final Provision of PLA makes the above article not applicable where damages a caused by a product.

Decision:

The Tribunal confirms that the PLA has a very specific applicability and therefore it is to govern cases where damages described in Article 2 of the Product Liability Act are included, that is, where there are personal injuries. It follows from that that given the death of someone close to the plaintiff the Tribunal will look at the wording of the PLA.

While both Acts provide that the burden of the proof rests on the claimant, the Tribunal warns that the CPA presumes a casual link between negligence and damage where the defendant does not provide satisfactory records of the fulfilment of any relevant duty he is obliged to observe over his work. Conversely, according to Article 5 of the Product Liability Act it is for the claimant to show evidence of the existence of defect in the gas cylinder.

The Tribunal split its reasoning into two lines of argument. Firstly, it came to say that issues of casual link should be governed by the PLA. Secondly, it decided that the fact whether the distributor of gas properly carried out its tasks of gas checks felt within the realm of the Consumer Protection Ac since it is a service not included in the PLA. As a consequence the Tribunal acknowledges that the gas distributor is indeed responsible for the lack of appropriate ventilation. The Tribunal though concluded that although not even adequate ventilation had ever avoided the explosion at least the magnitude of the explosion had been rather smaller. Accordingly, the Tribunal reduced 25% the amount of damages.

Comments:

The decision illustrates that it remains a great deal of confusion on the applicability of the two most relevant acts, that is, the PLA and the CPA. The inclusion of gas was not included in the implemented Directive and therefore the Court applied a restrictive interpretation.