Product Liability 2009 - Arnold & Porter LLP

Thelius Belgium
3.5 Can defendants claim that the fault/defect was due to the
actions of a third party and seek a contribution or
indemnity towards any damages payable to the claimant,
either in the same proceedings or in subsequent
proceedings? If it is possible to bring subsequent
proceedings is there a time limit on commencing such
proceedings?
The liability of a producer towards an injured person is not reduced
or dismissed towards the injured party when the damage is caused
both by a defect in the product and by the intervention of a third
party (article 10 § 2 of the Product Liability Act).
However, the producer has a subrogated action against the third
party which must be brought within five years to be calculated as
from the date the victim had knowledge of her damage or within 20
years to be calculated as from the fact at the origin of the damage.
When a partial liability can be reproached to a third party, the
producer should file a third party intervention (within the initial
proceeding brought by the victim) against this party to obtain his
guarantee.
3.6 Can defendants allege that the claimant’s actions caused
or contributed towards the damage?
When the damage is caused both by a defect in the product and by
the fault of the injured party of any person for whom the injured
person is responsible, the liability of the producer may be reduced
or disallowed.
The judge has full discretion to determine the liability share to be
brought by the producer and the injured person.
4 Procedure
4.1 In the case of court proceedings is the trial by a judge or a
jury?
In Belgium, there is no jury for civil matters; the case is submitted
to a judge.
4.2 Does the court have power to appoint technical specialists
to sit with the judge and assess the evidence presented by
the parties (i.e. expert assessors)?
The Belgian Judicial Code (article 962) allows the judge to appoint
experts “in order to make findings of facts or to give a technical
advice”.
The expert appointed by the judge may not have other missions. He
is not allowed to give his advice on the merits of the claim; he is not
allowed to research evidences.
The parties have to give to the expert “the necessary elements” to
allow him to make useful findings or give technical advice (article
972 of the Judicial Code).
4.3 Is there a specific group or class action procedure for
multiple claims? If so, please outline this. Is the
procedure ‘opt-in’ or ‘opt-out’? Who can bring such
claims e.g. individuals and/or groups? Are such claims
commonly brought?
The Act of 14 July 1991 on commercial practices and the
information and protection of consumers allows the Ministry for
Economic Affairs and any consumers rights association with legal
personality and represented at the Consumption Council or
ICLG TO: PRODUCT LIABILITY 2009
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recognised by the Ministry of Economic Affairs, to ask the
President of the Commercial Court to order cessation of a practice
infringing the provisions of the Act of 14 July 1991 (for instance:
misleading advertisement).
The sale of harmful products could be considered as an act contrary
to the fair trading practices. The case law, however, does not give
any example of such claim.
Except for this injunctive relief action described here above, the
class action procedure for the matter under review does not exist in
Belgium.
There is no opt-out system in which eligible plaintiffs are
automatically part of a class unless they decline to be included.
There is no opt-in procedure.
However, when damage is suffered by a large number of
consumers, each of them must file individually a claim for
damages. Plaintiffs with similar but separate claims can institute
proceedings before the same court and ask the court to handle their
claim at the same hearing without joining them.
If a consumers association would bring a claim for damages, its
claim would not be admitted because it has no quality to claim
damages for a damage suffered by others (the consumers).
In practice, when several consumers have suffered similar damages
with the same origin, they can contact one law firm which shall file
one claim for damage in the name of all the injured persons.
4.4 Can claims be brought by a representative body on behalf
of a number of claimants e.g. by a consumer association?
See the answer given under question 4.3.
4.5 How long does it normally take to get to trial?
The length of a proceeding depends on various factors (overloaded
courts, lawyers’ diligence, number of parties, need for an expertise
and its progress, incidents during the proceeding, among others).
Taking into account these elements, the proceeding may last
between six months and six years.
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
The Court may render a preliminary judgment on the question of
competence, proceeding or ordering investigation measures (for
instance an expertise). Such judgment does not prejudge the final
decision.
4.7 What appeal options are available?
The decisions of the Court of first instance and of the Commercial
Court on a demand which does not exceed EUR 1,860.00 may not
be appealed (Judicial Code, article 617).
In all other cases, an appeal may be brought as soon as the judgment
is rendered, even if this one is a preliminary decision or if it is a
judgment by default (Judicial Code, article 1050).
The appeal has to be brought within one month of the notification
of the judgment (article 1051).
The defendant may form an incidental appeal any time against all
the parties before the appeal judge (article 1054).
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