Although doctrine and the Consumer Defense Code (CDC) have afforded protection to "bystanders", identification of this kind of consumer in some cases can still generate doubt. For this reason, the Superior Court of Justice, the highest court for non-constitutional matters, has often been called to rule on the matter, and with each new case, new contours have been identified.

As a rule, only the final recipients of products and/or services can be considered consumers for the purpose of the CDC. This is what Article 2 of the Code states. However, in accordance with Article 17 of the CDC, individuals or intermediaries in the consumer chain who suffer the consequences of a consumer accident can be considered bystanders, even if they are not part of the initial relationship.

The concept of bystander in Brazilian law was inspired by American law, and with time has evolved case by case. Currently, the CDC provides for the possibility of considering bystanders all victims of a particular injurious event, regardless of whether they were a party to the initial consumer relationship.

The subject has been analyzed by the STJ at different times over the past few years, with constant evolution of its interpretation.

In 2012, the STJ ruled on a case involving a vehicle accident between a car and a taxi. At the time, the court held that "the subject of the consumer relationship does not necessarily need to be a contracting party and may also be a third party victimized by this relationship, a party that U.S. law calls a bystander".[1]

Despite recognizing the bystander in our legal system, the court ruled out its application in that specific case, since the taxi was not in service (no passenger) at the time of the collision. The appellate judges ruled that the taxi driver was no bystander, since there was no previous consumer relationship from which the consumer status of the taxi driver, who was the victim of the accident, could be deemed a bystander.

On another occasion, in a plane crash, the STJ held that all those who were affected by the disaster, regardless of whether they were passengers of the affected aircraft, should be considered consumers. People who were close to the site at the time of the accident and were affected, although only morally, were considered bystanders. The reporting judge stressed that "the victims of aviation accidents not on the aircraft, are consumers by configuration (bystanders), and the rules of the Consumer Defense Code relating to damage from accidents should be extended to them (art. 17, CDC)."[2]

In another case, involving oil leakage into an environmentally protected area, the STJ applied the CDC to all the victims of the event, considering them bystanders: "The plaintiffs were victims of a consumer accident, since their fishing activities were supposedly impaired by the oil spill that occurred in the state of Rio de Janeiro. The provision of Article 17 of the Consumer Defense Code applies."[3]

Thus, when a "standard" consumer relationship exists in the injurious event, all other victims involved in the accident should be considered consumers, albeit by configuration, and consequently consumer legislation applies.

Recently, the STJ encountered a peculiar situation. A street sweeper was hit by a bus carrying passengers (customers). He was the only victim of the event and had no relationship with the bus company, that is, he was not part of the original consumer relationship established between the bus company and its passengers, none of whom were injured. Even though the accident did not injure any of the direct consumers of the company, could the street sweeper be considered a bystander? Or would some "direct" consumer of the bus company need to have been injured to talk about equating the street sweeper as a consumer? According to the reporting judge in his leading opinion:

"The fact that the only person victimized by the accident allegedly caused by the bus owned by the appellee, while providing transportation service for people in Rio de Janeiro, was a third party to the consumer relationship does not rule out his bystander status."[4]

On this occasion, the existence of a consumer relationship was deemed to be sufficient, i.e., the fact that the service/product was being offered within the scope of the CDC, so that the accident resulting from this relationship, by victimizing any individual, whether or not part of the consumer chain, fell under the scope of the consumer legislation and all its protective institutes. Thus, even if none of the direct consumers of the bus company were injured, the court considered that it was possible to expand consumer protection measures to the third party, by configuration.

It is no accident that on more than one opportunity, the STJ has taken the time to deal with the topic of the bystander. The subject is relevant and its legal consequences are even more so. What can be observed is a constant evolution of the issue. The correct and timely identification of bystanders in specific cases is fundamental, since the consequence is the application of consumer legislation, which is protective and seeks to balance the relationship between consumers and suppliers.

The application of consumer legislation alters both the competence to judge lawsuits and the reversal of the burden of proof. The inadequate or late identification of bystanders can, therefore, be catastrophic, so it is essential to know the subject and to monitor the evolution of its interpretation by the courts.


[1] Special Appeal 1125276/RJ, rel. Reporting Judge Nancy Andrighi, 3rd Panel, judged on February 28, 2012, published in the DJe on March 7. 2012.

[2] Special Appeal 1281090/SP, Reporting Judge Luis Felipe Salomão, 4th Panel, judged on February 7, 2012, published in the DJe on March 15, 2012.

[3] Conflict of Competence 143.204/RJ, Reporting Judge Ricardo Villas Bôas Cueva, 2nd Section, judged on February 29, 29, 2016. In the same sense, "According to the jurisprudence of this Superior Court, defined in a case similar to that here, in the present hypothesis, the plaintiffs are comparable to consumers, by configuring the oil spill as a consumer accident, which allegedly harmed the fishing activity of the interested parties" (CC 132.505/RJ, Reporting Judge Ricardo Villas Bôas Cueva, 2nd Section, judged on February 3, 2015).

[4] Special Appeal178.731-8, Reporting Judge Paulo De Tarso Sanseverino, 3re Panel, judged on June 16, 2020, published in the DJe on June 18, 2020.