Strict liability versus fault liability. Which grounds for liability?

Some decisions are not very clear with regard to whether the Product Liability Act gives rise to strict liability or to fault liability. The distinction between these two liability regimes is, of course, known in Spanish law, although sometimes the difference is a bit blurred in practice by the fact that, with very few exceptions, in fault liability pursuant to Art. 1902 CC, i.e. the general tort liability provision for fault, fault is regularly rebuttably presumed. Nonetheless, this would not explain serious confusions such as in SAP Orense 10.11.1999 [AC 1999\2092], in a case of a car bursting into flames due to a manufacturing defect and thereby harming vehicles which were parked in the vicinity, where the court declared that in spite of the strict character of the liability regime provided by the Product Liability Act ‘this does not mean that it can do without a finding of fault . . . fault is presumed or, put another way, the claimant does not carry the burden of proof and it is the defendant who has to establish that he acted with due care’. In a similar way, SAP La Coruna˜ 21.6.2002 [AC 2002\1348], dealing with the damage caused to the teeth of the victim when chewing a biscuit which, due to a manufacturing defect, contained hard pieces of sugar, identifies ‘defect’ with ‘fault’ and states, unperturbed, that ‘Art. 5 LRPD establishes that the victim has to prove the defect, the damage and the causation link between both. These conditions, in a few words, coincide with the classical conditions for fault liability in tort required by Art. 1902 CC.’

It is possible that legal scholarship has also contributed, to some extent, to fostering confusion when it has seen echoes of fault liability in some of the defences provided by Art. 6 LRPD.12 Some decisions seem to confirm this idea: so, for instance, SAP Las Palmas 23.4.2002 [JUR 2002\167362], dealing with damage caused by a defective vehicle, states that the Product Liability Act does not modify the fault approach of Art. 1902 CC and ‘even establishes for certain cases defences with a clear mark of fault, as results from Art. 6’. Also SAP Ciudad Real 26.11.2002 [JUR 2002\32632], after declaring that the Product Liability Act provides for a strict liability regime, classifies the different defences according to different rationales and identifies the development-risk defence with ‘foreseeability of the risk’ and considers that this defence shows that the Act does not establish a proper strict liability regime.

12So, for instance, Rodriguez Llamas, R´egimen de responsabilidad civil por productos defectuosos, p. 134.

One can agree with Horton Rogers that the distinction between fault liability and strict liability displays many shades and that there is a sort of ‘continuum’ between fault liability and strict liability.13 However, it is difficult to admit that a strict liability regime becomes a fault liability one by the mere fact that it accepts a specific case which can be more or less linked to a finding of fault as a defence. In fact, the European Court of Justice, dealing with the English implementation of the development-risk defence, had already declared in Commission of the European Communities v United Kingdom14 that ‘[i]n order for a producer to incur liability for defective products under Article 4 of the Directive, the victim must prove the damage, the defect and the causal relationship between defect and damage, but not that the producer was at fault’.15 In this sense, SAP Tarragona 18.7.1998 [AC 1998\1546] had also rightly set out that the LRPD ‘provides for a strict liability regime’ and that ‘the defendant cannot be exonerated from liability by proving that he acted with due care, since he can only avail himself of the defences laid down in Arts. 6, 8 and 9 LRPD’.

The legal concept of ‘product’: products or services?

In spite of the fact that a movable joined or incorporated into another immovable is not a movable according to domestic Spanish law (cf. Art. 334.3 CC) and, by contrast, it is a product according to the Product Liability Act (cf. Art. 2 LRPD), the concept of ‘product’ has not given rise to much hesitation.

Courts of Appeal have not had much trouble identifying products when dealing with bottle caps that go off violently (SAP 18.4.2000 [AC 2000\1214]), tanks that break (SAP Tarragona 18.7.1998 [AC 1998\ 1546]), medicines that cause harm (SAP Huesca 18.4.2000 [AC 2000\ 1214]), airbags that are defective (SAP Asturias 17.11.2003 [JUR 2003\

13W. V. Horton Rogers, ‘England’, in Bernhard A. Koch and Helmut Koziol (eds.), Unification of Tort Law: Strict Liability (The Hague; London; New York: Kluwer Law International, 2002), p. 101.

14Judgment of the Court (Fifth Chamber) of 29 May 1997. Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. Failure of a Member State to fulfil obligations – Article 7(e) of Directive 85/374/EEC – Incorrect implementation – Defence precluding liability for defective products – State of scientific and technical knowledge. Case C-300/95. European Court reports 1997, page I–02649.

15Ibid., paragraph 24.

277690]), or even Spanish omelette sandwiches spread with mayonnaise containing salmonella (SAP Cordoba´ 10.4.2000 [AC 2000\1395]).

Since Art. 2 LRPD considers gas and electricity to be products, Spanish Courts of Appeal have applied the Product Liability Act to damage caused by power surges,16 breakdown of power transformers,17 propane gas explosions,18 and explosions of butane gas cylinders.19 So, for instance, SAP Albacete 9.3.2000 [AC 2000\1145], in a case of damage caused by the explosion of a butane gas cylinder, declares that ‘product’ according to the LRPD, includes ‘the gas itself and the cylinders [movables] with its accessories’.

Although in the case of damage caused by electricity most decisions draw the distinction between product and service with accuracy, in a few cases courts have had some difficulty when distinguishing whether the damage had been caused by a product, being then governed by LRPD, or by a service, being then governed by the LGDCU. This is the case for instance, in SAP Tarragona 30.4.2002 [JUR 2002\185670] or SAP Barcelona 11.11.2003 [JUR 2004\5832], where the court holds that the damage caused by a power surge is damage caused by a service and that LDGCU applies.

The legal concept of ‘defect’. Manufacturing defects or useless products?

With regard to defect, Art. 3.2 LRPD contains a specific provision which, deviating from the Directive, applies to manufacturing defects only and states that ‘[i]n any case, a product is defective if it does not offer the safety regularly offered by the rest of the issues of the same series’. This provision establishes a presumption of the existence of a defect when the requirements that it includes are met and entails an exception to the general rule provided by Art. 5 LRPD, according to which ‘[t]he injured person seeking to obtain compensation for the incurred damage must prove the defect, the damage and the causal relationship between the two’.

16In this sense, inter alia, SAP Huesca 24.11.1998 [AC 1998\8667], SAP Huesca 24.6.1999 [AC 1999\1476], SAP Asturias 20.11.2001 [JUR 2001\35199] and SAP Sevilla 24.9.2003 [AC 2003\1698].

17So, for instance, SAP Toledo 16.3.2000 [AC 2000\959].

18For instance, SAP Salamanca 15.3.2000 [AC 2000\1367].

19Among others, SSAP Badajoz 8.4.1999 [AC 1999\674] and Albacete 9.3.2000 [AC 2000\ 1145].

Art. 3.2 LRPD has been used often in the cases of bottles that explode and provides a yardstick that Spanish courts had already used within the framework of the old Art. 28 LGDCU.20 So, for instance, it is applied by SAP Granada 12.2.2000 [AC 2000\851], in a case where a cap of a Coca-cola bottle seriously injured the eye of a little girl while she was opening it. Or by SAP Cadiz´ 16.3.2002 [JUR 2002\140327], dealing with the explosion of a bottle of tonic water which took place while the victim was taking it from a fridge in a shop, where the court states that the defect of the product ‘results from the simple circumstance of the explosion of the bottle without any external grounds that could give rise to this effect, something which, by itself, meets the conditions required for establishing the proof of the defect’. However, by contrast to Italian law, which contains a similar rule (cf. Art. 5.3 Italian Decree),21 Spanish legal writing considers that this presumption can be rebutted. The defendant can prove that ‘other circumstances’ (cf. Art. 3.1 LRPD) may indicate that, in spite of the fact that the product offers a level of safety which is lower than the level offered by the other issues of the same series, it still offers the safety which a person may legitimately expect and, therefore, that it is not defective. One of these ‘other circumstances’ may be ‘the presentation of the product’ (cf. Art. 3.1 LRPD), since the external aspect of a product can give rise to a certain safety expectation (for instance, the defective bottle had clearly noticeable cracks). The ‘improper use of the product’ may also be one of these ‘other circumstances’ and, since Art. 3.1 LRPD does not offer a closed list of these ‘other circumstances’, other aspects which are relevant in establishing the safety which a person may legitimately expect may also be taken into account.22 The courts are also very well aware that the notion of the

20See, for instance, SSTS 23.6.1993 [RJ 1993\5380]; 4.10.1996 [RJ 1996\7034].

21See, for instance, Gustavo Ghidini, in G. Alpa, U. Carnevali, F. di Giovanni, G. Ghidini, U. Ruffolo and C. M. Verardi, La responsabilit` per danno da prodotti difettosi (Milan: Giuffre,` 1990, p. 48), who understands that once it has been established that a particular issue does not offer the safety regularly offered by the rest of the issues of the same series, the producer can no longer prove that the defect did not exist, not even by invoking any of the ‘other circumstances’ provided by Art. 5 which are regularly used to establish it. See also Maria Leonarda Loi, in Roberto Pardolesi and Giulio Ponzanelli, ‘La Responsabilita` per danno da prodotti difettosi’, Le Nuove Leggi Civile Commentate, n. 3, maggio-giugno, 1989, p. 550.

22See in more detail Josep Sole´ Feliu, El concepto de defecto del producto en la responsabilidad

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civil del fabricante (Valencia: Tirant lo Blanch, 1997), pp. 605–11 and Mar´ıa Angeles Parra Lucan,´ ‘La responsabilidad civil por productos y servicios defectuosos. Responsabilidad civil del fabricante y de los profesionales’, in L. Fernando Reglero Campos (Coord.), Tratado de responsabilidad civil (2nd edn, Cizur Menor: Aranzadi /Thomson, 2003), p. 1317.