Product Liability 2009 - Arnold & Porter LLP

Denmark
120
Kromann Reumert Denmark
As a consequence of the European Court of Justice case C-402/03,
section 10 of the Product Liability Act was changed in 2006.
According to the new section 10 of the Act, the supplier is liable
without restriction only for the producer’s fault-based liability.
The change entails that the supplier is only immediately liable if the
claimant can prove that the producer acted negligently, but where the
assessment of evidence of whether the producer acted negligently is in
fact non-existing, it will most likely not be accepted by the European
Court of Justice. This is due to the fact that such a national rule will
be identical to section 10 that was held by the European Court of
Justice not to have been in accordance with the Directive.
Against this background, the Danish courts will in the future have
to evaluate the question of liability more carefully than they have
previously done in order to avoid conflict with the European Court
of Justice.
The assessment of evidence is likely to be more lenient and the
claimant must probably invest more time in gathering evidence
showing what steps other producers took to ensure that the product
was safe, what regulations those producers observed, how much time
was invested in ensuring that the product was safe in an attempt to
convince the courts that the damage in question could have been
avoided had the producer in question acted in the same way.
The Danish courts will test the producer’s margin of error in the
future, and only time will show to what extent the Danish courts are
willing to be more lenient.
1.4 In what circumstances is there an obligation to recall
products, and in what way may a claim for failure to recall
be brought?
Obligations to recall products are governed by the Act on Product
Safety, which implements the Product Safety Directives 92/59 and
2001/95. A failure to recall under the obligations of the Product
Safety Act may lead to product liability or even criminal sanctions.
Even if a recall cannot be required according to the Product Safety
Act a producer may be under an obligation to warn relevant parties
about possible dangers of the product. A failure to warn may lead
to liability according to ordinary rules on product liability.
1.5 Do criminal sanctions apply to the supply of defective
products?
According to the Act on Product Safety criminal sanctions (fines)
apply if the product does not meet the specified requirements set out
in public regulations.
Moreover, The Danish Penal Code could also apply in case of gross
negligence.
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
Under Tort Law it is up to the claimant to prove that the product is
defective, that the producer has shown negligence, that a loss has
been suffered and that there is causation between the defective
product and the loss suffered.
No particular rules exist as to what standard of proof must be met
by a claimant or defendant in order to sustain his burden of proof.
The court is free to evaluate the evidence in the particular case and
on the basis of this concrete evaluation the court will determine
whether the burden of proof has been sustained or not.
Under the Directive it follows from Article 4 that the injured person
shall be required to prove the damage, the defect and the causal
relationship between defect and damage.
2.2 What test is applied for proof of causation? Is it enough
for the claimant to show that the defendant wrongly
exposed the claimant to an increased risk of a type of
injury known to be associated with the product, even if it
cannot be proved by the claimant that the injury would
not have arisen without such exposure?
The basic rule of Danish law is that the claimant must prove a
causal relationship between his/her particular injury and the defect.
There are no rules under Danish law stipulating the standard of
proof. The principle of the courts’ freedom to assess evidence
applies. The standard of proof is set by the courts in each particular
case from an overall assessment of the claimant’s possibilities of
providing evidence, the defendant’s situation, the nature of the
defect and the situation in general. Danish law does not provide
specific rules on how the court is to assess the evidence, the court
will on the basis of what has been presented to the court during the
trial and the production of evidence, decide on which facts of the
case to base its decision.
The courts’ freedom to assess evidence applies to all evidence, both
direct evidence, e.g. witnesses or technical equipment (cameras,
measuring devices, etc.) having observed a particular event, and
indirect evidence where the court from the circumstances of the
case decides on what fact to base its decision. It is not impossible
that a court of law on the basis of strong statistical evidence could
find that it is enough for the claimant to show that the defendant
wrongly exposed the claimant to an increased risk of a type of
injury known to be associated with the product. Even if it cannot
be proved by the claimant that the injury would not have arisen
without such exposure it is, however, a prerequisite that the
statistical evidence to a very high degree of certainty must exclude
that the particular injury could have other causes.
2.3 What is the legal position if it cannot be established which
of several possible producers manufactured the defective
product? Does any form of market-share liability apply?
If it cannot be established which of several possible producers have
manufactured the defective product, the claimant has not lifted his
burden of proving who the producer/responsible party is. It is for
the courts to decide how onerous the burden of proof is in the
particular situation. No form of market-share liability applies.
2.4 Does a failure to warn give rise to liability and, if so, in
what circumstances? What information, advice and
warnings are taken into account: only information provided
directly to the injured party, or also information supplied to
an intermediary in the chain of supply between the
manufacturer and consumer? Does it make any difference
to the answer if the product can only be obtained through
the intermediary who owes a separate obligation to assess
the suitability of the product for the particular consumer,
e.g. a surgeon using a temporary or permanent medical
device, a doctor prescribing a medicine or a pharmacist
recommending a medicine? Is there any principle of
“learned intermediary” under your law pursuant to which
the supply of information to the learned intermediary
discharges the duty owed by the manufacturer to the
ultimate consumer to make available appropriate product
information?
A failure to warn can give rise to liability. The producer has an
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ICLG TO: PRODUCT LIABILITY 2009
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