Product Liability 2009 - Arnold & Porter LLP

Kromann Reumert Denmark
bar is interrupted by acknowledgment or commencement of
litigation.
There is an absolute limitation period in addition to the general
three year time limit, mentioned above. The length of that period
will depend both on the nature of the claim and on whether the
claim is against a producer or supplier.
Claims against a producer within the scope of the Product Liability
Act (personal injury and damage to consumer goods) will be subject
to an absolute 10-year limitation period - in accordance with the
Product Liability Directive - calculated from the date when the
producer placed the product into commerce.
Claims against a producer relating to damage to commercial goods
will in most cases also be subject to an absolute 10-year limitation
period, but if the claim relates to pollution (air, water, soil etc.) or
disturbances (noise, tremors etc.) the absolute limitation period will
be 30 years.
Claims against a supplier will be subject to an absolute 10-year
limitation period, but if the claim relates to pollution (air, water, soil
etc.) or disturbances (noise, tremors etc.) or personal injury the
absolute limitation period will be 30 years.
Furthermore the new Time Limit Act introduces detailed provisions
regarding additional one-year minimum time limits under certain
circumstances, including in relation to recourse and criminal
behaviour.
5.2 If so, please explain what these are. Do they vary
depending on whether the liability is fault based or strict?
Does the age or condition of the claimant affect the
calculation of any time limits and does the Court have a
discretion to disapply time limits?
See answer to question 5.1.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
Criminal sanctions imposed on a producer or supplier will in some
instances ‘awaken’ civil claims that have already been time-barred,
thus enabling a claimant to pursue such claims within a new time
limit of one year.
6 Remedies
6.1 What remedies are available e.g. monetary compensation,
injunctive/declaratory relief?
Monetary compensation as well as declaratory relief is available.
The Danish Safety Technology Authority can subject to conditions
laid out in the Act on Product Safety issue interim notices, including
prohibition and recall notices regarding products that are deemed to
be unsafe.
If the supplier or producer objects to such a notice, the Danish
Safety Technology Authority will have to obtain an injunction
awarded by a court to replace the interim notice.
6.2 What types of damage are recoverable e.g. damage to the
product itself, bodily injury, mental damage, damage to
property?
reduced applicability, determines the amount of damages payable.
In case of partial loss or damage to property, damages payable equal
the cost of repair. If repair does not fully restore the utilisation
value or commercial value of the damage to property, compensation
may also be claimed for the remaining loss.
In addition to the above the claimant can recover consequential
damages.
In case of personal injury the Danish Act on Liabilities and
Damages applies. In general, compensation for personal injury in
Denmark is low, when compared to other Western European
countries and the US. For damage that occurs after 1 July 2002 the
level of compensation has been increased to a certain extent.
The following types of damages are recognised: medical expenses;
temporary loss of earnings; pain and suffering; permanent injury;
permanent loss of earning capacity; and compensation for loss of
support.
6.3 Can damages be recovered in respect of the cost of
medical monitoring (e.g. covering the cost of investigations
or tests) in circumstances where the product has not yet
malfunctioned and caused injury, but it may do so in
future?
If at a later stage the product malfunctions or causes injury then
previously incurred costs of investigations or tests may be
recoverable if the court finds that the costs incurred have been
relevant.
6.4 Are punitive damages recoverable? If so, are there any
restrictions?
No, punitive damages are not recoverable.
6.5 Is there a maximum limit on the damages recoverable
from one manufacturer e.g. for a series of claims arising
from one incident or accident?
No such limit exists in Denmark.
6.6 Do special rules apply to the settlement of
claims/proceedings e.g. is court approval required for the
settlement of group/class actions, or claims by infants, or
otherwise?
Settlement of class action claims will have to be approved by the
court. Settlement of claims by infants will have to be approved by
the guardian as well as the appropriate State County. Settlement
sums to infants will in most instances have to be managed by
certain branches of banks approved by the Danish Ministry of
Justice until such a time when the infant in question comes of age.
6.7 Can Government authorities concerned with health and
social security matters claim from any damages awarded
or settlements paid to the Claimant without admission of
liability reimbursement of treatment costs, unemployment
benefits or other costs paid by the authorities to the
Claimant in respect of the injury allegedly caused by the
product. If so, who has responsibility for the repayment of
such sums?
WWW.ICLG.CO.UK 123
In case of total loss of or damage to property, the replacement cost,
Government authorities will not be able to claim reimbursement of
treatment costs.
less a deduction for depreciation due to age, wear and tear and
ICLG TO: PRODUCT LIABILITY 2009
If the claimant receives benefits under the Danish sickness benefits
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Denmark