Responsabilidad por riesgo y carga de la prueba

responsabilidad por riesgo


The Supreme Court condemns Natural Gas to pay 2.1 million euros by an explosion, applying theory “strict liability”

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The service provider risk generator has the burden of proof to prove the true origin of the incident.

The Plenum of the Civil Chamber of the Supreme Court ruling 299/2018, of 24 May, It determined that uncertainty about the causes of the accident is not a mechanism for exemption from liability of the service provider.


The 10 November 2005 to 23.09 there was an explosion in a building in Tarragona by an accumulation of gas produced in a home on the property and as a result, They died 5 people and injured was seriously. damage to parked vehicles were also generated on public roads.

Different harmed by the facts claimed to Natural Gas and gas service provider that generated the explosion, Mapfre and AXA General Insurance insurers S.A as the Owners of the property where the facts and Liberty Seguros happened as underwriter of the specific housing where the gas leak and guarantor of the damage of the affected vehicles was generated with the explosion. They demanded compensation for damages suffered on the basis of liability under Article 1902 the Civil Code and the regulations protecting consumers and users, pointing to the existence of strict liability risk.

Primera Instancia

The Court of First Instance No. 2 in Tarragona, mediante sentencia de 22 October 2013 He dismissed the lawsuit against Natural Gas, AXA Seguros and Mapfre and estimated requests for claims against Liberty Seguros.

He understood the court he could not be held responsible for Natural Gas or the insurers of the homeowners as they only had to answer one that had as responsible for the insurance of the property where there was a gas leak that led to the explosion and insurance of the affected vehicles, Liberty Seguros.

He specified that the Court, respect of damage on people, claims must be directed against the insurer of the apartment where the explosion occurred and not against the alleged perpetrators, for which it did not consider the existence of liability for lack of accreditation of the origin of the incident.

Segunda Instancia

Against the decision of first instance appeal which was decided by the Audiencia Provincial de Tarragona in judgment was filed 27 April 2015, which dismissed the appeal and upheld the first instance decision denying responsibility for Natural Gas as was unknown how he formed the cloud of gas that led to the explosion since it was not proven that the leak had originated from a defect in Natural Gas facility that had been detected.

He stressed the Provincial Court that the plaintiffs did not prove the existence of a causal link to attribute responsibility to Natural Gas.

Decisions of first and second instance the requests of the plaintiffs were dismissed for lack of proof of what caused the explosion, namely, because it was not shown that the gas leak was due to faulty installation that the company should have detected. According to the arguments instance, Nor it was established that, planned revision of the regulations have been carried out, the explosion would not have occurred, and presumed responsibility in the accident “who it is in direct contact with the cause of the, namely, who occupied the house at the time of the explosion“.


They were filed extraordinary appeal for procedural infringement and appeals:

– In the appeal of procedural infringement it was stated that the judgment under appeal dismissed the criteria for allocation of the burden of proof raised by the case law, contrary to the provisions of the rule concerning the availability and ease probation.

They recurring understood that should govern the reversal of the burden of proof on the origin of the facts, then falling in Natural Gas the burden of proof not only because its activity created a risk but for ease probation.

About, the Chamber understood that the statement made the Provincial Court in its judgment concerning not demonstrated that the regulatory review by Gas Natural would have done damage not occurred, It was contrary to the principle of availability and ease probation, Once moved all who did not have the means to prove otherwise and ignored the principle of responsibility for risk, in the words of the Chamber, “It produces precisely the effect of forcing the generator who provides services to credit risk the true origin of the incident”.

In support of this argument concerning liability for risk, Hall cited the decision in ruling 210/2010, of 5 in April he ordered:

Case law has not gone so far as to erect the risk as a criterion of liability based on Article 1902 CC (SSTS 6 September 2005, 17 June 2003, 10 December 2002, 6 April 2000 and, among the most recent, 10 June 2006 and 11 September 2006) and he declared the objectification of liability that does not conform to the principles underlying the upregulation. The Court has not accepted a reversal of the burden of proof, actually it involves a principle of proximity or ease or probation based induction evidence, more than in cases of extraordinary risks, disproportionate damage or lack of cooperation of the tortfeasor, especially when it is required to provide the explanation for the damage their professional circumstances or otherwise (STS 2 March 2006)”.

Consequence of this jurisprudential position, Hall understood that in the event of a dispute Professional Natural Gas circumstances forced him to actively assume the burden of proving the true origin of the incident.

– The appeal was made by a single reason was the violation of Article 1902 Civil Code and case law regarding strict liability.

The appellants founded the plea on the following arguments:

  1. They claimed that the case law that served as support to the decision of the Provincial Court was reviewing cases where the victim was negligent conduct in producing the damage, which was not analogous to the situation of litigation.
  2. Concurred the requirements of the law to apply the doctrine of the objectification of responsibility for risk.
  3. The appellate court ruling did not assess the consequences of the lack of diligence of Natural Gas for failing to make revisions term facilities.
  4. Natural gas is not proved to have acted with the diligence required in order to reduce the risk created by the service.

Hall said, although its jurisprudence existed in cases where gas explosions did not involve the application of strict liability, these were not similar to those studied. then he cited the case of the STS 120/2009, of 19 February, where an event of explosion of a gas cylinder, not continuous supply was studied in an installation, and in that case he stated that the bottle had no defect, while, in the case study, He not declared the good condition of the facility or negligent intervention of the victim, but, in the absence of evidence of the cause of the accident, the applicants were allocated the burden of proving liability. He also mentioned that STS 725/2010, of 25 November, it was stated that, although it must prove causation actor, In pleading proven negligence in the installation of gas service by a third, there was someone imputing negligence outside the supplier.

then he claimed the Chamber uncertainty about the cause of the accident could not be cause for exoneration of Natural Gas and its insurer, since it was she who had the means and knowledge appropriate to establish the causes and did not.


Given the outlined, the extraordinary appeal for procedural infringement and appeals was estimated by considering wrong to impose affected the burden of proof on the reasons for the explosion, despite its obvious lack of mechanisms for this. Additionally the Chamber concluded that the contested judgments are ignored principle of strict liability which states that whoever provides a service that creates a risk, You must prove the true origin of the incident.

Accordingly, the claims made and corresponding allowances were estimated for damage caused by the accident of gas explosion.

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