Supreme Court judgment of 20 March 2026 on liability for defective products and burden of proof

In a recent judgment of the French-language section of the First Chamber (case No. C.25.0328.F), the Supreme Court (Court of Cassation) set aside a judgment of the Mons Court of Appeal on liability for defective products and the burden of proof regarding the defect, the damage and the causal link between both. The case concerns a father and son who were seriously injured by the explosion of a flask of burning insect repellent gel during a garden dinner. According to the father the product, designed to be poured into a bowl and set on fire, ignited spontaneously a few seconds after opening the partially filled flask, resulting in a flame jet that burned his son, seated across the dinner table. They brought a claim for damages against the insurer of the product’s manufacturer who, however, disputes their assertions, pointing out alleged inconsistencies and claiming that the accident occurred due to a failure to follow the safety instructions, arguing that the flask must have been opened in proximity of a heat source to ignite the gas that emanates from the gel and tends to collect in the empty upper part of the flask. 

The law of 25 February 1991 on liability for defective products (aka the ‘Product Liability Act’ or ‘PLA’), repealed by the law of 7 February 2024 introducing Book 6 of the new Civil Code, still applies in this instance. The PLA (Article 5) provides that a product is defective if it does not offer the degree of safety that is legitimately to be expected, considering all attendant circumstances, the product’s presentation and its normal, or reasonably to be expected, use. The burden of proof regarding the defect, the damage and the causal link between both lies with the injured party (Article 7). Assertions made by either party are merely allegations on which a judge cannot rely, unless they are supported by evidence or some kind of presumption. Any such statement cannot simply be accepted as fact if it is disputed by the opposing party. The provisions on ‘evidence’ laid down in Book 8 of the (new) Civil Code also dictate that contested assertions have to be substantiated, and that the burden of proof in relation to defective products lies with the injured party. The judgment of the appellate court identifies no evidence to support the victim’s assertions yet attaches probative value to them, even though they are disputed by the other party. The Supreme Court therefore quashes the contested judgment and refers the case back to the Liège Court of Appeal.

Read the full text of the judgment (in French, Dutch translation pending) online.