Product Liability 2009 - Arnold & Porter LLP

Belgium
90
Thelius Belgium
loses on one or another claim. The proceedings costs include
judicial costs as such, investigation measures (judicial expert costs)
and the “proceedings indemnity”.
In application of article 1022 of the judicial Code (as modified by
the law dated April, 21, 2007), the proceedings indemnity is a fixed
intervention in the fees and costs of the lawyer of the successful
party. The proceedings indemnities are determined by Royal
decree, mainly according to the value of the claim. Upon request of
one party and by a justified decision, the judge may reduce or
increase the proceedings indemnity within the minimum and
maximum fixed by the Royal decree.
7.2 Is public funding e.g. legal aid, available?
Legal aid is available to persons of insufficient income.
7.3 If so, are there any restrictions on the availability of public
funding?
The legal aid is total or partial depending on the person’s resources
and is granted to Belgians or foreigners legally residing in Belgium.
7.4 Is funding allowed through conditional or contingency fees
and, if so, on what conditions?
The lawyer’s fees may not be based only on contingency or
conditional fees (article 459 of the Judicial Code), even if success
fees are allowed for part of the lawyers’ costs.
7.5 Is third party funding of claims permitted and, if so, on
what basis may funding be provided?
Third party funding of claims is not prohibited but is not organised
by the law (except for the legal aid). The plaintiff’s lawyer may not
fund the claim.
8 Updates
8.1 Please provide, in no more than 300 words, a summary of
any new cases, trends and developments in Product
Liability Law in Belgium.
The main recent developments in Product liability occurred at the
European Community level.
In Belgium, the Product Liability Act is often considered to be
lacking in innovation since it is more or less the formalisation of an
existing case law on the subject and, as explained, there are several
other liability systems on which the injured party may rely to claim
compensation for damages resulting from a defective product.
Out-of-court settlements as well as an increase in the level of
product safety also explains why there is only an average of 15
decisions published based on the Product Liability Act since it came
into force.
Three recent decisions are worth mentioning:
a) By a decision dated February 10, 2005 the Civil Court of
Brussels considers that if the producer has been informed of serious
side effects such as irreversible hearing disorders while the notice
only mentions reversible hearing disorders, this medicine should be
considered as defective in the meaning of the Product Liability Act.
The fact that the notice has been submitted to and duly approved by
the Health Ministry does not exonerate the producer from his
liability since it is impossible to believe that the Health Ministry
would have prevented the producer from mentioning in the notice
that the hearing side effects could be irreversible. The fact that
irreversible hearing disorders were mentioned in specific literature
prevented the producer relying on a risk development defence.
The Civil court considers that the causal link between the damage
and the defect in the product requests a high degree of certainty but
not an absolute certainty (Bruxelles civ., 10 February 2005, JLMB
2006, p.1193).
b) The interpretation of the risk development (see question 3.1)
given by the European Court of Justice has been followed by the
Belgian Supreme Court in a decision dated April 6, 2006. The
Belgian Supreme Court brings an end to the controversy on the
burden of proof: the victim does not have to demonstrate that the
scientific knowledge at the time the producer put the product into
circulation was such as to enable the existence of the defect to be
discovered. On the contrary, the producer must demonstrate that it
was impossible to discover the defect taking into account the state
of scientific and technical knowledge at that time.
The defence based on the impossibility to detect the defect may not
be based on the “concrete and subjective knowledge” of the
producer but must be based on an objective situation of scientific
and technical knowledge the producer was supposed to be aware of
when he put the product into circulation (Cass., 6 April 2006,
RGDC 2007, p.188).
This decision is also interesting because the Belgian Supreme Court
considers that the company managing an electricity network may be
considered as a producer (in the meaning of article 3 of the Product
Liability Act) even if the product delivered - due to a defect of the
delivery system - may not be considered as a finished product.
In application of article 10 of the Product Liability Act, this
producer is not authorised to limit his contractual liability towards
the injured person.
c) By a decision dated May 4, 2007, the Belgian Supreme Court
confirmed that in order to demonstrate that he is not liable, the
producer must not establish as a certainty that the defect did not
exist when the product was put into circulation or that this defect
came into being afterwards, but must demonstrate that it may be
considered that the defect did not exist at the time when the product
was put into circulation or that it came into being afterwards.
However, the producer who claims that the cause of the damage is
uncertain does not bring the necessary proof (Cass., 4 May 2007,
R.W. 2007-2008, 1283).
The main subject of interest in the coming years will probably be
the application of the risk development defence, amongst other in
the biotechnology field (GMO), the application of the Product
Liability Act to energy distribution and the insurance aspects.
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