Product Liability 2009 - Arnold & Porter LLP

252
Chapter 35
Poland
Lovells
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 claims in Poland may be made under any of the
three concurrent legal regimes: strict product liability; fault-based
tort liability; or the law of contract. Breach of statutory obligations
can also give rise to liability if, as a result of the breach, a product
causes injury or damage.
Strict liability
Strict product liability was introduced into Polish law in 2000 when
new provisions implementing Directive 85/374/EEC were added to
the Civil Code (articles 4491-11). These apply to damages caused
by products put into circulation in Poland as of 1 July 2000. The
Polish legislator decided to use the term “liability for dangerous
products” instead of “liability for defective products” in order to
avoid confusion with warranty claims under contracts of sale.
However, the definition of a dangerous product in the Polish Civil
Code is equivalent to that of a defective product in the Directive:
any product which does not provide the safety one may expect
taking into account the normal use of the product. Circumstances
existing at the time when the product was put into circulation, in
particular concerning its presentation and the information provided
to consumers on its properties, shall be used to decide whether the
product is dangerous.
Under the strict liability regime, anybody who produces a
dangerous product in the course of his business shall be liable for
any damage caused by that product to anybody else. The scope of
recovery for damage to property under this legal regime is limited
(see question 6.1).
Tort
Before the provisions on strict liability were introduced in the
Polish legal system, product liability claims could (and indeed still
can) be based on the traditional law of tort. Polish law has a very
broad notion of tort: “everybody who by his fault caused a damage
to another person is obliged to redress it”. The Supreme Court has
developed a concept whereby the marketing of a dangerous product
constitutes a tort. Causing damage to human health or property is
an unlawful act, and lack of due diligence amounts to negligence.
The jurisprudence has drawn distinctions between design,
production, information and monitoring defects.
Although product liability under the law of tort is generally fault-
Ewa Rutkowska
based, the Supreme Court has significantly eased the rules
concerning proof of fault. The Court has accepted that putting a
dangerous product on the market constitutes negligent behaviour.
Moreover, a concept of an anonymous, organisational fault (rather
than the personal fault of a defined individual) with objective
elements has been applied in product liability cases. Consequently,
this system has in practice been very similar to the strict liability
regime provided for in the Directive.
Contract
If there is a contractual relationship between the injured person and
the person providing the product, product liability claims may be
based on the law of contract. Delivery of a dangerous product
amounts to non-fulfilment or improper fulfilment of contractual
obligations. A defective product is one which is not in conformity
with a contract and therefore warranty claims can play an important
role in product liability cases.
1.2 Does the state operate any schemes of compensation for
particular products?
No, the state does not operate any such schemes.
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
Under the strict liability regime, responsibility for a dangerous
product rests on:
the producer, i.e. any person who produces the product in the
course of his business;
the producer of material, raw material or a component part of
a product (unless the exclusive cause of the damage was
defective construction or instructions given by the producer);
the own brander (any person who presents himself as the
producer by placing his business name, trade mark or another
distinguishing designation on the product); or
the importer (any person who, in the course of his business,
introduces into domestic trading a product originating from a
foreign country).
The liability of the abovementioned persons is joint and several.
If the producer, the own brander or the importer are not known to
the injured party, any person who sells a dangerous product in the
course of his business shall be liable for damages caused by that
product unless he informs the injured party of the name and address
of any of those persons or of his own supplier. The time limit for
providing this information is one month from notification of the
damage.
WWW.ICLG.CO.UK
ICLG TO: PRODUCT LIABILITY 2009
© Published and reproduced with kind permission by Global Legal Group Ltd, London