Product Liability 2009 - Arnold & Porter LLP

Chapter 34
Norway
Advokatfirmaet Wiersholm, Mellbye & Bech AS
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?
Product liability can be based both on negligence, a customary
norm derived from judicial decisions and legal theory, and strict
liability under the Product Liability Act, “PLA”, (104/1988). This
article will deal mainly with the rules in the PLA.
Furthermore, product liability can rest on a breach of contract. If a
product is defective and does not possess the contractually
promised properties, it may lead to strict or fault-based liability
under the Purchase Act (27/1988).
A claimant may choose between these three systems. Neither legal
basis precludes the use of another, but the different systems may not
cover all kinds of damages. In some instances, the claimant must
establish that the “manufacturer” acted negligently, cf. PLA section
1-3 (1).
1.2 Does the state operate any schemes of compensation for
particular products?
Yes. In accordance with the Protection from Infection Act
(55/1994), the Government may be obliged to pay standardised
damages caused by vaccinations. Compensation for damages
caused to patients during medical treatment in the public health care
system is regulated in the Patient Injury Act (53/2001). Under the
same act private health care institutions must provide insurance for
claims related to medical treatment. Compensation for damages
caused by vehicles is established in the Liability for Vehicles Act
(1/1961). In Chapter 3, the PLA lays down a separate compensation
scheme for damages caused by the use of and the testing of
medicines.
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
The PLA sets out that nearly everyone in the chain of distribution
may be held responsible, including the manufacturer, the importer,
and the supplier of the product, cf. the PLA section 1-3 (1).
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?
Under the Product Control Act (79/1976) section 6a, there is an
obligation to recall products if they constitute “an unacceptable
risk” of causing damage to people’s health or the natural
environment, and the government issues a binding order of product
recall. A failure to comply with this order may result in a fine. In
addition, the government may request a court to issue a compliance
order in the event of the “manufacturer” is in non-compliance, or
choose to permanently uphold the order in the court system.
1.5 Do criminal sanctions apply to the supply of defective
products?
A negligent or intentional violation of the Product Control Act
(79/1976) section 6a is sanctioned with a fine or imprisonment for
up to 3 months, or both. In cases of gross negligence, the Penal
Code (10/1902) applies.
2 Causation
Magnus Hellesylt
Nicolai Nyland
2.1 Who has the burden of proving fault/defect and damage?
As a general rule the claimant has the burden of proof and must
establish the factual basis for his claim under all three systems of
liability: the PLA, fault-based liability, or contractually based
liability in accordance with the Purchase Act, (27/1988).
If a claimant submits evidence that the court considers prima facie
proof of a fact relating to any of the conditions for liability, this
creates an evidentiary burden upon the opposing party. He must
present evidence to refute the presumption. In relation to claims
based on the PLA, the “manufacturer” must refute, cf. section 1-3 (1).
Norwegian courts are free to weigh the evidence in the particular
case as they see fit.
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?
Under the PLA section 2-1, the manufacturer is obliged to
compensate for damages caused by the product having a “safety
deficiency”. A “safety deficiency” exists when the product does not
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