Product Liability 2009 - Arnold & Porter LLP

Thelius Belgium
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
The statute of limitations for the different claims (see question 5.2)
starts generally as from the date the injured party is aware of her
damage and of the defect in the product. The issue of concealment
or fraud necessarily affects the running of the time limit. The fault
consisting to conceal the defect in the product would delay the
starting point of the statute of limitations.
6 Remedies
6.1 What remedies are available e.g. monetary compensation,
injunctive/declaratory relief?
In most of the cases, monetary compensation is granted as a remedy
in civil product liability cases. The injunctive relief is organised
under the Act of 14 July 1991 on commercial practices and the
information and protection of consumers (see the answer to
question 4.3).
6.2 What types of damage are recoverable e.g. damage to the
product itself, bodily injury, mental damage, damage to
property?
person in the position he/she would have been in if no fault had
been committed.
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?
Following decisions of the Supreme Court, when the seller knows
that the products put on the market are affected by a latent defect,
he must, even after delivery, inform the buyer of the existence of
this defect
6.4 Are punitive damages recoverable? If so, are there any
restrictions?
There are no punitive damages under Belgian 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?
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A) Strict (objective) liability:
There is no maximum limit on the damages recoverable provided
by law even for a series of claims.
The liability insurance policies subscribed by companies provide a
According to article 11 of the Product Liability Act, damages for
bodily injuries and moral damages are recoverable.
maximum for the indemnification in case of a series of claim.
The damages to goods are recoverable only if the goods are
normally intended for a private purpose and have been used as such
by the victim, with the application of a EUR 500.00 threshold.
The damages to the defective product itself are not recoverable.
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?
B) Contractual liability:
There are no specific rules as regards settlement of
a) Latent defects:
If the seller was aware of the latent defects of the good or does not
claims/proceedings in the matter of product liability.
demonstrate its invincible ignorance of the defect, he must provide 6.7 Can Government authorities concerned with health and
full compensation of the damages resulting from the latent defects
in the product.
If the seller legitimately ignored the latent defects of the good 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
demonstrates that the defect could not be detected, he will have to Claimant in respect of the injury allegedly caused by the
reimburse the price paid and the expenses resulting from the sale product. If so, who has responsibility for the repayment of
(article 1646 of the civil Code).
such sums?
b) Lack of conformity:
In case of lack of conformity of a good sold to a consumer, this one
may choose between the repair of the product, the reimbursement or
the rescission of the contract.
Belgian Government authorities concerned with health and social
security matters may not claim a portion of damages awarded or
settlements paid to the plaintiff as the result of a product liability
lawsuit. However, these authorities could claim from the producer
In a first stage, the consumer has the right to repair or replacement the reimbursement of treatment costs, unemployment benefits or
of the good except if it is not possible or disproportionate. There is other costs paid by them to the plaintiff, not under the Product
disproportion when the repair or the replacement obliges the seller Liability Act but under Tort liability (articles 1382 and 1383 of the
to costs which are unreasonable taking into account the value of the
good without the conformity defect, the importance of the defect
Belgian Civil Code).
and the fact that another way of indemnification can be chosen
without major inconvenient for the consumer.
The consumer may obtain a price reduction or the contract
7 Costs / Funding
rescission if he has no right to the repairs or the replacement of the 7.1 Can the successful party recover: (a) court fees or other
good or if the seller has not repaired or replaced the good within a incidental expenses; (b) their own legal costs of bringing
reasonable delay.
the proceedings, from the losing party?
C) Tort liability and criminal liability:
When the producer or the seller is held liable, this one must provide
full compensation for the damages. He must place the injured
ICLG TO: PRODUCT LIABILITY 2009
Any final decision orders the payment of the judicial costs by the
losing party (article 1017 of the judicial code).
The costs can be compensated by decision of the judge if each party
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