Product Liability 2009 - Arnold & Porter LLP

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Dedák & Partners Slovakia
necessary, also the liquidation of a product can be ordered. The
market surveillance authority can take these measures directly
itself. The recall of a product can be imposed only if the risk of
damage to consumers persists despite timely and appropriate
notification to persons in jeopardy.
Under the requirements of general safety of products, the producer,
importer, distributor and supplier are obliged to place on the market
only safe products, monitor products they market and, when they
become aware of any threat originating from their product, to
inform consumers involved and to withdraw it from the market and,
if necessary, to recall the products. Failure to do so entails the
liability in administrative delict sanctioned by a penalty.
Every consumer has the right to submit motions and complaints
concerning a product’s safety. The above measures can be ordered
upon a consumer’s motion or complaint or as a result of inspection
by the market surveillance authority performed ex officio. The
market surveillance authority also deals with the related
administrative delicts.
1.5 Do criminal sanctions apply to the supply of defective
products?
The marketing of defective product can be subject to criminal
sanctions. Pursuant to the new Criminal Code (Act No. 300/2005
Coll.), section 269, whoever wilfully harms a consumer by placing
on the market products or services and concealing essential defects
thereof and thereby causes him at least small damage, shall be
punishable with imprisonment for 6 months up to 3 years. The
imprisonment can be substituted for or combined with a house
arrest, prohibition to undertake an activity or a pecuniary
punishment. In case of qualified facts of the crime such as gaining
a profit or causing damage to more persons, imprisonment for up to
12 years can be imposed.
Small damage means damage in the amount of EUR 266 up to EUR
2,665. If the damage caused is lower, the act is deemed to be an
offence (administrative delict) punishable by a fine.
The key aspect of this criminal act is fraud that consists in
concealment of essential defects of the product.
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
In case of a claim under the contractual liability for defect, the
aggrieved party bears the burden of proving all preconditions of the
liability, i.e. with the existence of a contractual obligation, the
breach of the obligation to deliver a product free of defects, damage
and causality.
In case of a claim based on liability for damage caused by a
defective product, the burden of proof is laid as follows: the
consumer who suffered damage shall prove existence of defect,
damage and causal connection between the two. The producer can
be relieved from liability for damage, if he furnishes proof of one of
the exonerating circumstances (see question 3.1 below).
Because both liabilities are strict, the proof of fault is inapplicable.
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?
There has been no test established for assessment of causation. A
court assesses each case individually taking into consideration all
circumstances. Generally, the causal relation needs to be direct.
The probability that damage would have arisen anyway can be
considered as failure to bear the burden of proving the causation.
However, it depends on overall assessment of a case by a court.
2.3 What is the legal position if it cannot be established which
of several possible producers manufactured the defective
product? Does any form of market-share liability apply?
There are two situations of concurrency of several producers treated
in the Product Liability Act. One situation is concurrency of a
component producer and a whole product producer. If the producer
of a component of the product proves that the defect of the product
is attributable to the design of the whole product, in which the
component was fitted or if the damage was due to the user’s manual
for the entire product, the producer of the component frees himself
from liability.
The other situation is when several producers are liable, i.e. none of
them proved he had not produced it or distributed it. Then their
liability is joint and several; each of them is responsible for full
damage. If there are several possible producers and no clear
evidence of infliction of any of them, it can result in failure to prove
causation.
2.4 Does a failure to warn give rise to liability and, if so, in
what circumstances? What information, advice and
warnings are taken into account: only information provided
directly to the injured party, or also information supplied to
an intermediary in the chain of supply between the
manufacturer and consumer? Does it make any difference
to the answer if the product can only be obtained through
the intermediary who owes a separate obligation to assess
the suitability of the product for the particular consumer,
e.g. a surgeon using a temporary or permanent medical
device, a doctor prescribing a medicine or a pharmacist
recommending a medicine? Is there any principle of
“learned intermediary” under your law pursuant to which
the supply of information to the learned intermediary
discharges the duty owed by the manufacturer to the
ultimate consumer to make available appropriate product
information?
The providing of information is one of the basic methods of the
consumer protection. The general information obligation is set out
in section 11 of the Consumer Protection Act. A seller (distributor)
is obliged to inform a consumer about the characteristics of a
product, on the method of use and maintenance of the product, on
the risks associated with its incorrect use or maintenance and on
storage conditions. If necessary in view of the nature of the product
and in view of the method and time of its use, the seller is obliged
to ensure that the information also is intelligibly provided in an
appended written manual.
If the producer (or importer) does not enter into a direct contract
with the seller, they are obliged to provide truthful and complete
information about the product’s characteristics to the supplier. The
supplier is obliged to provide truthful and complete information
about the product’s characteristics to the seller.
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