Product Liability 2009 - Arnold & Porter LLP

Chapter 19
Finland
Roschier, Attorneys Ltd.
1 Liability Systems
1.1 What systems of product liability are available (i.e. liability
in respect of damage to persons or property resulting from
the supply of products found to be defective or faulty)? Is
liability fault based, or strict, or both? Does contractual
liability play any role? Can liability be imposed for breach
of statutory obligations e.g. consumer fraud statutes?
There are two main systems of product liability: strict liability
under the Product Liability Act (694/1990); and fault based liability
under the Torts Act (412/1974), the Sale of Goods Act (355/1987),
and the Consumer Act (38/1978). Liability under the Sale of Goods
Act and the Consumer Act is limited to damage to property.
Liability can be imposed for breach of the Consumer Act’s
provisions on unfair marketing practices. Product liability can also
be based on the breach of an express or implied contractual term
concerning the quality or safety of a product.
1.2 Does the state operate any schemes of compensation for
particular products?
The state operates compulsory insurance schemes under the Patient
Injury Act (585/1986) for injuries caused by medical treatments and
clinical trials, the Traffic Insurance Act (279/1959) for certain
traffic-related injuries, the Accident Insurance Act (608/1948) and
the Farmers’ Accident Insurance Act (1026/1981) for work-related
injuries and occupational diseases. In addition, a private
Pharmaceutical Insurance Scheme covers product liability for
pharmaceutical products. These Acts and schemes apply as parallel
sources of remedies, along with product liability under the Product
Liability Act.
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
Liability under the Product Liability Act is imposed on the
manufacturer, the importer, and the marketer (i.e. the party under
whose trademark or other commercial identifier the product has
been marketed). If the product’s manufacturer is not indicated on
the product, any other supplier is liable as a manufacturer unless
they, upon request, identify the manufacturer or the person from
whom they have acquired the product. The same rule applies if the
importer is not indicated on the product.
ICLG TO: PRODUCT LIABILITY 2009
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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?
General Finnish product liability rules impose an obligation on the
manufacturer to recall products upon becoming aware of their
defective qualities, if such defects cannot be eliminated in other
ways. In addition, under the Act on the Safety of Consumer
Products and Services (75/2004) the Finnish Consumer Agency
may order a recall of a product intended for general consumption if
the Agency deems that product to be defective or dangerous, subject
to criminal penalties. Breach of the duty to recall products does not
in itself establish grounds for a civil claim under Finnish law, but is
rather treated as negligent conduct.
1.5 Do criminal sanctions apply to the supply of defective
products?
Under the Penal Code (39/1889), if a person deliberately or through
gross negligence supplies a defective product in violation of the Act
on the Safety of Consumer Products and Services and certain other
product safety legislation, such that the act is conducive to
endangering the life or health of another person, that person may be
convicted of a health offence and sentenced to a fine or to
imprisonment for up to six months.
2 Causation
Petri Taivalkoski
2.1 Who has the burden of proving fault/defect and damage?
Under the Product Liability Act, the injured person has the burden
of proving the harm, the defect, and the causal relationship between
the defect and the harm. Under general tort law rules, the injured
person is further required to prove negligence. Under the Patient
Injury Act and the Pharmaceutical Insurance Scheme, the claimant
need only show that a causal connection between the product and
the harm is probable.
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?
Case law indicates that courts will find causation to have been
sufficiently proven if the claimant can show that the injury is
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