Product Liability 2009 - Arnold & Porter LLP

Lovells Poland
within one month of the date when he or she has discovered the
defect or, acting with due diligence could have discovered it. As for
sale contracts between businesses, a warranty claim will expire if
the goods have not been examined within the customary period of
time after delivery and the buyer has not notified the seller of the
defect without undue delay.
If claims are made under the general law of contract, the limitation
period is ten years (but three years for businesses) from the moment
when the claim has become due.
Special rules regarding the lapse of a limitation period apply to
minors. In relation to such persons the limitation period cannot end
earlier than two years after the person attained full age. The same
applies to persons with mental disability who are eligible for full
incapacitation.
The lapse of a limitation period is a defence which may be invoked
by the defendant. The court considers the lapse of the limitation
period only if it is expressly invoked by the defendant, and will not
consider it ex officio. The court generally has no discretion in this
respect. However, in exceptional cases, the court may rule a
limitation defence inadmissible based on the general clause of
article 5 of the Civil Code, according to which one cannot make use
of one’s right if it would be contrary to the socioeconomic aim of
that right or to good custom.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
In cases of concealment or fraud, the limitation defence would be
ruled inadmissible on the basis of article 5 of the Civil Code (see
question 5.2).
Claims under consumer sales contracts can be made despite the
lapse of the time limits described above if the seller knew about the
non-conformity of the product and did not draw the consumer’s
attention to this fact.
The lapse of the time limits described above will also be of no
relevance for warranty claims under a non-consumer sale contract
if the seller maliciously concealed the defect or represented and
guaranteed that the defect does not exist.
6 Damages
6.1 What remedies are available e.g. monetary compensation,
injunctive/declaratory relief?
Under Polish law in case of a tort/product liability case one may
seek: (a) an injunction (if due to the lack of the injunction the
enforcement of the judgment shall be prevented or seriously
impeded or the aim of the proceedings may not be reached); (b)
compensation and other monetary remedies (see question 6.2
below); and (c) declaration that the defendant will be liable for the
damage which will occur in future as a result of the event at issue
(e.g. loss of health in future).
6.2 What types of damage are recoverable e.g. damage to the
product itself, bodily injury, mental damage, damage to
property?
Under Polish law, compensation always includes monetary damage,
while non-monetary damage can be recovered only in instances
where express provision has been made for it. Monetary damage
includes both actual damage (damnum emergens) and lost profits
(lucrum cessans).
ICLG TO: PRODUCT LIABILITY 2009
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Under the law of tort, compensation is recoverable for damage to
property and personal injury. Compensation for personal injury
includes both monetary damage (all expenses related to the injury,
e.g. costs of medical treatment and maintenance, as well as lost
income, annuity or a single indemnity, and the cost of training for a
new occupation) and non-monetary damages specified in the Civil
Code. Compensation for non-monetary damage in form of pain and
suffering is not obligatory. It is in the discretion of the court
whether to grant it or not. Refusal to grant compensation must,
however, be objectively justified. There are also certain types of
damages which can be recovered in case of death of an injured
party. Persons to whom the deceased either owed a statutory duty
of maintenance or voluntarily and permanently provided
maintenance can claim annuity. The court may also award
appropriate compensation to the closest family members of the
deceased if their standard of living has considerably deteriorated as
a result of the death. Under the provisions of a recent amendment to
the Civil Code a person whose closest family member died as a
result of a tort will be entitled to seek compensation for the nonmonetary
damages, such as traumatic experience of losing a close
family member, he/she suffered.
Under the strict product liability regime, the scope of damages
recoverable for personal injury is the same as under the law of tort.
There are some differences as far as recovery for damage to
property is concerned. Strict liability covers only damage to items
which are ordinarily intended for personal use and which the
injured party has used mainly for such purpose. Compensation
cannot be recovered for damage to the product itself or for profits
which the injured person could have derived from the use of the
product. Damage to property is recoverable only if the value of the
claim exceeds the minimum threshold of €500. If it does, the full
amount of damage can be recovered.
Under the law of contract, only monetary damage can be recovered.
This includes damage to property and to the product itself.
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?
There have not been any cases regarding medical monitoring in
Poland. Under the existing liability regimes, actual damage must
occur in order for compensation to be recovered. In preventative
litigation, the court can order that certain steps be taken in order to
prevent the occurrence of threatened damage or that security be
given by way of depositing a certain amount of money with the
court. This, however, would not include the recovery of costs of
medical monitoring before any damage had occurred.
6.4 Are punitive damages recoverable? If so, are there any
restrictions?
There are no punitive damages in Polish law.
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?
There is no maximum limit on recoverable damages in Polish law.
It is worth noting that the amounts of compensation awarded by
Polish courts are much lower than in the US or Western Europe due
to a lower cost of living.
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