Product Liability 2009 - Arnold & Porter LLP

McGrigors LLP Scotland
subject to various exceptions, contractual and delictual obligations
prescribe after a period of five years from the date the obligation
became enforceable. Generally all claims will prescribe after a
long-stop period of 20 years.
A time limit of 3 years applies to personal injury actions. The
period of limitation runs from either: a) the date of injury (or death),
or where injuries were attributable to a continuing act or omission,
that date or the date on which the act or omission ceased; or, if later,
b) from the date which the pursuer could reasonable have become
aware: i) that his injuries were sufficiently serious; ii) that his
injuries were attributable in whole or in part to an act or omission;
and iii) of the identity of the defender.
Specific periods apply in respect of product liability claims under
the Act. Claims for damages caused in whole or in part for a
defective product will prescribe after a period of 10 years. A
limitation period of 3 years also applies from the date the pursuer
should reasonably have become aware that: a) a product was
defective; b) the damage was caused by the defect; c) the damage
was sufficiently serious; and d) that the defender was liable therefor.
The court has an equitable power to allow an action to be brought
out with the limitation periods for personal injury and product
liability noted above in certain circumstances.
In calculating both prescriptive and limitation periods, periods
during which the person seeking to bring the action was under a
legal disability by reason of nonage or unsoundness of mind are
disregarded.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
Periods during which a relevant claim, which would postpone the
operation of prescription, was not made by reason of fraud on the
part of the defender (or any person acting on his behalf), or error
induced by words or conduct of the defender or any person acting
on his behalf, are excluded from the reckoning of the prescriptive
period.
6 Remedies
6.1 What remedies are available e.g. monetary compensation,
injunctive/declaratory relief?
The principle remedy is monetary compensation. However, the
remedies of declarator and interdict are available if appropriate in
the circumstances of the case.
6.2 What types of damage are recoverable e.g. damage to the
product itself, bodily injury, mental damage, damage to
property?
Damages for death or bodily injury (including mental damage) are
recoverable under the Act together with damages for loss of or
damage to property for private use and consumption - subject to a
minimum threshold of £275. (Section 5(4)). Damages are not
recoverable in respect of damages to the defective product itself.
In negligence damages are intended to put the pursuer in the
position he would have been in but for the breach. Damages to the
product may be recoverable through a claim for pure economic loss.
ICLG TO: PRODUCT LIABILITY 2009
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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?
This is unlikely to comprise a relevant claim for damages unless
there is a primary liability in terms of the product in question. If a
product liability claim does arise the cost of monitoring might be a
relevant head in relation to damages arising from that liability.
6.4 Are punitive damages recoverable? If so, are there any
restrictions?
No. In Scotland, damages are assessed by reference to the loss and
injury sustained.
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?
No, there is not.
6.6 Do special rules apply to the settlement of
claims/proceedings e.g. is court approval required for the
settlement of group/class actions, or claims by infants, or
otherwise?
No, they do not.
6.7 Can Government authorities concerned with health and
social security matters claim from any damages awarded
or settlements paid to the Claimant without admission of
liability reimbursement of treatment costs, unemployment
benefits or other costs paid by the authorities to the
Claimant in respect of the injury allegedly caused by the
product. If so, who has responsibility for the repayment of
such sums?
Yes. Depending on the circumstances, the defender may require to
repay certain benefits received by the claimant under the Social
Security (Recovery of Benefits) Act 1997.
7 Costs / Funding
7.1 Can the successful party recover: (a) court fees or other
incidental expenses; (b) their own legal costs of bringing
the proceedings, from the losing party?
The award of expenses is a discretionary matter for the court. In the
normal course of events the losing party will pay the successful
party’s expenses, this includes both legal fees and court expenses.
They are generally assessed at a judicial rate for both legal fees and
expenses. This is unlikely to cover all fess and outlays incurred.
The successful party will submit an account of expenses and if this
is disputed, a Taxation before a Court Auditor will be required.
7.2 Is public funding e.g. legal aid, available?
Civil legal aid is available in Scotland depending on the
circumstances of the case.
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