Product Liability 2009 - Arnold & Porter LLP

Belgium
86
Thelius Belgium
use the paint, among others for children’s toys, the public may not
legitimately expect that this paint does not present any toxic effect.
The information that must be given is all the details which could be
useful for the users. When the user is already informed either by a
third party or by himself (professional user), the information is not
useful.
The main criterion is the reception of the information by the user,
whether received directly or indirectly by the producer.
When a medicine is not available over the counter, but may only be
bought with a prescription, the doctor must verify if the medicine is
appropriate to the patient and must draw his attention on the
possible harmful effects. This does not exempt the producer to
establish, in application of the law, a notice describing the
conditions of use of the medicine, the contra-indications and the
possible side effects.
3 Defences and Estoppel
3.1 What defences, if any, are available?
A) Strict (objective) Liability:
Article 8 of Product Liability Act enumerates six causes of defences
for defective product liability. The producer must prove that he
meets the following conditions:
1 The producer did not put the product into circulation (i.e. the
product has been stolen).
2 Having regards to the circumstances, the defect which
caused the damage did not exist at the time when the product
was put into circulation by the producer or this defect came
into being afterwards.
It should be underlined that, under the cover of granting to
the producer a defence, article 8, b, of the Product Liability
Act reverses the burden of proof. Indeed the liability of the
seller towards the buyer and third parties only covers the risk
existing at the moment of delivery. It is in principle to the
injured party to establish the existence, at the moment of
delivery, of the latent defect alleged. The Act derogates to
this principle by obliging the producer to prove that the
defect came into being after he was put into circulation.
3 The product was neither manufactured for sale or for any
form of distribution for the economic purpose of the
producer, nor manufactured or distributed by the producer in
the course of his business. This provision exempts, for
example, a person who donates blood as this one has not
been manufactured for sale or for any kind of distribution
with an economic purpose.
4 The defect is due to compliance of the product with
mandatory regulations issued by the public authorities.
Indeed, there is no fault in complying with an act ordered by
the law or a public authority. The exemption nevertheless
does not apply if the public authority intervention is limited
to mere recommendations or authorisations.
5 The state of scientific and technical knowledge at the time
when the producer put the product into circulation was not
such as to enable the existence of the defect to be discovered
(so-called development risk).
6 For the producer of a component or for the producer of a raw
material, when the defect is attributable to the design of the
product in which the component or the raw material has been
built-in or to the instructions given by the producer of this
product. This case is in fact a repetition of the principle
stated at article 8, b.
Article 10 § 2 of the law adds that the liability of the producer may
be reduced or disallowed when the damage is caused by a defect in
the product and by the fault of the injured person of a person for
whom the injured person is responsible (contributory negligence).
In addition the liability of the producer may not, in relation to the
injured person, be altered by a contractual provision reducing or
exempting the producer from his liability.
B) Other liability systems:
In the other liability systems, the producer or the seller may avoid
or limit his liability while putting forward a case of absolute
necessity (“force majeure”) or a fault of the injured party. Clauses
that disclaim or limit liability are in principle valid, but have been
held unenforceable towards consumers and each time the
manufacturer or the seller was dishonest (for instance the seller who
was aware or should have been aware of the latent defect and did
not reveal it).
3.2 Is there a state of the art/development risk defence? Is
there a defence if the fault/defect in the product was not
discoverable given the state of scientific and technical
knowledge at the time of supply? If there is such a
defence, is it for the claimant to prove that the fault/defect
was discoverable or is it for the manufacturer to prove that
it was not?
The development risk is a defence for the producer under the
Product Liability Act. According to Article 8, e, the producer must
prove that the state of scientific or technical knowledge at the time
when the product was put into circulation was not such as to enable
him to discover the defect.
As regards contractual liability, the Supreme Court has often
decided that the existence of a latent defect leads for the
professional seller to a breach of his knowledge duty, “unless he
proves that - whatever his diligence - he could not be aware of it”.
The professional seller will prove an exemption cause only if the
defect “was of such nature that it was impossible for him to notice
it at the time of the sale”.
3.3 Is it a defence for the manufacturer to show that he
complied with regulatory and/or statutory requirements
relating to the development, manufacture, licensing,
marketing and supply of the product?
A manufacturer may not be exonerated for his liability when it
complies with regulatory and/or statutory requirements. The
manufacturer will be exonerated from his liability if he proves that
the defect is due to compliance of the product with mandatory
regulations imposed by public authorities and not just to
compliance with minimum safety standards.
3.4 Can claimants re-litigate issues of fault, defect or the
capability of a product to cause a certain type of damage,
provided they arise in separate proceedings brought by a
different claimant, or does some form of issue estoppel
prevent this?
The principle of res judicata precludes the same claimant to bring a
new trial which would lead to re-litigate issues already judged. The
res judicata principle only applies between the same parties as
regards the same object and cause of action.
Any person who did not take part in the initial trial has therefore the
right to bring against the producer a trial similar to the one which
has led to a judicial decision.
The judge who will decide in the new proceeding is not bound by
the previous decision (no estoppel as regards defect or causal link).
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ICLG TO: PRODUCT LIABILITY 2009
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