Product Liability 2009 - Arnold & Porter LLP

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consideration, and did not manufacture or distribute the
product in the exercise of his professional activity”;
d. the defect depends on the “compliance of the product with a
mandatory legal rule or a binding measure”;
e. “the state of scientific and technical knowledge at the time
when the product was released on the market did not allow
the existence of the defect to be discovered”; or
f. “the manufacturer or supplier of a component part of the
product fully complied with the instructions given by the
manufacturer who used the component or the defect is fully
due to the concept of the product in which the part was
incorporated”.
In relation to the “state of the art” defence (e. above), the strict view
of legal authors excludes the possibility that a defect may be
considered unpredictable only because the scientific theses that
confirm its existence are not yet fully consolidated or are not
directly and immediately accessible, and case law in such cases
tends to consider the defect as predictable.
Note that, under the Consumer Code, a manufacturer may be held
liable for damages only if the product is defective in relation to its
ordinary, intended use.
Under the Consumer Code, if the injured party contributed to the
injury, damages shall be assessed according to the seriousness and
degree of his contributory negligence and the level of consequences
due to his own negligence. No damages shall be awarded if the
victim could have avoided the injury by acting with ordinary
diligence and duty of care, and there will be no damages award if
the consumer was aware of the defect and of the risks connected
thereto, but nevertheless accepted being exposed to the danger by
continuing to use the product. Recent case law has accepted the
“awareness” defence (as in tobacco litigation cases).
Traditional defences in tort to exclude a manufacturer’s liability
include a variety of arguments are similar to those mentioned above
under the Consumer Code.
3.2 Is there a state of the art/development risk defence? Is
there a defence if the fault/defect in the product was not
discoverable given the state of scientific and technical
knowledge at the time of supply? If there is such a
defence, is it for the claimant to prove that the fault/defect
was discoverable or is it for the manufacturer to prove that
it was not?
See the answer to question 3.1. The manufacturer’s liability is
excluded if the level of technical and scientific knowledge at the
time when the product was placed on the market did not allow the
defect to be discovered. The time when the product is placed on the
market is either the time when it is delivered to the purchaser, or to
the user, or to an agent thereof, including when it is delivered for
trial purposes or for inspection.
Any element that may exonerate the manufacturer from liability
must be proved by the manufacturer himself. Accordingly, the
burden of proving elements exonerating the manufacturer from
liability, and of proving that the defect was not known, or capable
of being known, at the time the product was placed on the market
both lie on the manufacturer (as also confirmed by case law).
3.3 Is it a defence for the manufacturer to show that he
complied with regulatory and/or statutory requirements
relating to the development, manufacture, licensing,
marketing and supply of the product?
The manufacturer is exonerated from liability if the defect is due to
conformity of the product with a mandatory rule or a binding
provision, the reason being the impossibility of sanctioning conduct
that is mandatory. However, the legal provisions regulating product
safety and the manufacturing process of goods are limited to a few
sectors such as the processing of food and beverages, medicines,
pharmaceuticals, household electric appliances, and cosmetics.
However, manufacturers are not exonerated from liability for
damages caused by defective products placed on the market simply
because the manufacturer abided by all existing safety standards or
production guidelines. Compliance with such rules may support the
manufacturer’s position, but if the product is defective the
manufacturer shall be liable regardless of compliance with existing
rules.
The same rule applies to torts, even though the general definition of
faulty conduct includes any form of “negligence, imprudence, lack
of skill or failure to abide to existing laws, regulations, orders and
guidelines”. In practice, compliance with existing rules does not
exclude tort liability if the agent is found to have acted with
negligence, imprudence or lack of skill as per the definitions of
these concepts given by case law.
3.4 Can claimants re-litigate issues of fault, defect or the
capability of a product to cause a certain type of damage,
provided they arise in separate proceedings brought by a
different claimant, or does some form of issue estoppel
prevent this?
Yes. Different claimants can litigate issues of fault, defect or
damage that had been previously litigated by another claimant in
another case in relation to the same product. Procedurally speaking,
the cases are considered different because they involve different
parties to the dispute, even if they regard the same product and arise
out of the very same issues. However, it is most likely that de facto
the decision in the subsequent case will be affected by the outcome
of the previous one.
3.5 Can defendants claim that the fault/defect was due to the
actions of a third party and seek a contribution or
indemnity towards any damages payable to the claimant,
either in the same proceedings or in subsequent
proceedings? If it is possible to bring subsequent
proceedings is there a time limit on commencing such
proceedings?
Yes. Defendants can claim that the fault/defect was due to the
actions of a third party, and seek a contribution or indemnity
towards any damages payable to the claimant, either in the same
proceedings or in separate, subsequent proceedings. The period of
limitation in which to commence any such proceedings follows the
ordinary rules on statute of limitations as outlined in the answer to
question 5.2 below.
In addition, the action of a third party can be such as to break the
causal nexus between the defendant’s action and the damage, thus
entitling the defendant to argue that, failing causation, no liability
can be imposed upon him/her.
3.6 Can defendants allege that the claimant’s actions caused
or contributed towards the damage?
Yes. If the claimant is the injured party and contributed to causing his
injury or damage, the assessment of damages shall be based on the
seriousness and degree of his contributory negligence and the level of
consequences due to his own negligence. No damages will be
awarded if the injured party could have avoided the injury by acting
with ordinary reasonableness and diligence. Moreover, no damages
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