What are the main elements which a claimant must prove to succeed in a non-contractual (eg tort) claim for damage caused by a defective product?

Product Liability

India Small Flag India

In India, there is no specific statute codifying law of torts. India is a common law country and general principles of Indian tort law follow principles of English tort law. The courts in India are guided by the principles of justice, equity and good conscience, and principles of tort law such as duty of care, negligence and strict liability, based on common law precedents.

The Supreme Court has held in Common Cause, a registered society v Union of India [(1999) 6 SCC 667] that tort signifies an act which gives rise to a right of action being a wrongful act or injury consisting in the infringement of a right created otherwise than by a contract. Torts are divisible into three classes, being in the infringement of a jus in rem, or in the breach of a duty imposed by law on a person towards another person, or in the breach of a duty imposed by law on a person towards the public.

The three essential elements required to be proved in a claim for negligence under the law of torts are (a) the existence of a duty of care, (b) a breach of such duty of care, and (c) injury or damage resulting from such breach. In most product liability claims, there is always an element of a contractual relationship between the parties. Hence, in order for an aggrieved party to institute a claim under tort law, the aggrieved party is required to establish that the breaching party had a duty of care which was independent of the contract.

Japan Small Flag Japan

The main elements for general tort liability pursuant to Article 709 of the Civil Code are as follows:

(i) intentional or negligent act or failure to act

(ii) infringement of any rights of others

(iii) damages

(iv) causal relationship between alleged act or failure to act and the alleged damages.

In Japan, the plaintiff must provide concrete details of the alleged negligence in the complaint.

Turkey Small Flag Turkey

A party who has suffered damages (whether material or non-material) or bodily injury because of a defective or flawed product may bring a claim under:

  • the Turkish Code of Obligations;
  • the provisions under the Code of Obligations (6098) states that the damaged party must prove the unlawful act, damage, omission and relation of causality,
  • the Turkish Criminal Code;
  • where an unsafe or defective product causes death or injury, liability may be triggered:
  • for manslaughter under Article 85 of the Criminal Code; or
  • for causing injury under Article 89 of the Criminal Code.

South Korea Small Flag South Korea

Article 750 of the Civil Act stipulates general liability in a non-contractual claim for damages. Such liability does not presume a contractual relationship between the claimant and the defendant, so a claimant may claim liability against any person who may be viewed to have contributed to the defect of the product that caused the damage. In order to succeed in a non-contractual claim for damages caused by a defective product, the claimant must prove (i) the intent or negligence of the the defendant; (ii) the illegality of the defendant’s conduct; (iii) the occurrence of the damage; and (iv) the casual relationship between the defendant’s conduct and the damage.

Australia Small Flag Australia

At common law the claimant must establish:

  • that loss or damage has been suffered;
  • that the relevant conduct is in breach of a common law duty; and
  • that the loss or damage was caused by the defendant’s conduct.

While the test varies between jurisdictions, there are basically two requirements for causation in negligence:

  • first, that the negligence was a necessary condition of the occurrence of the harm (referred to as “factual causation”); and
  • second, that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (referred to as “the scope of liability”).

There is, however, an allowance for determining in an “exceptional” case, whether negligence that cannot be established as a necessary condition of the occurrence of harm should nonetheless be accepted as establishing factual causation.

France Small Flag France

The claimant must prove cumulatively the following elements to succeed in a tort claim:

  • A fault or negligence of the defendant, which is determined by reference to the “reasonable person” standard;
  • A damage suffered by the claimant; and
  • A causal link between the fault/negligence and the damage(s) suffered by the claimant.

In addition, a claimant may claim for damages against a person having custody of the defective product. The proof of the existence of a fault or negligence is not required, the proof that the damage was caused by the defective product in the defendant’s custody is sufficient.

A defective product will be considered as being in someone’s custody upon the condition that the given person has the power to use it, control it and manage it.

Brazil Small Flag Brazil

To succeed in a non-contractual claim, the Claimant should prove that: (i) he suffered damages, and; (ii) such damages were related to the product.

United Kingdom Small Flag United Kingdom

The claimant must prove (on a balance of probabilities) that the defendant:

  • owed the claimant a duty of care;
  • breached this duty;
  • the breach caused the damage in question; and
  • the damage could be reasonably foreseen.

A negligence claim focuses on the behaviour of the defendant, whereas a claim for strict liability under the CPA focuses primarily on the nature of the product and the alleged defect. The former is considered to be more challenging for a claimant to pursue successfully. It is often a question of fact and degree around the actions taken by the defendant and whether this constituted a breach of the duty of care.

Claimants will, however, often bring both a negligence claim and a CPA claim, largely because a negligence claim may potentially be brought against a wider category of defendants than those set out in the CPA, the ten-year longstop does not apply to negligence claims and disclosure of wider categories of documents may be available.

Germany Small Flag Germany

Claims for damage caused by defective products may also be brought under the tort provisions of § 823 of the German Civil Code. Liability is fault-based.

The tort claim cumulatively requires a

  • Defect of the product;
  • Infringement of property, body and health, or any other legal asset;
  • Causality between defect and infringement;
  • Damage of the claimant;
  • Causality between infringement and damage
  • Fault of the defendant (negligence or intent);

Usually the claimant has the full burden to prove the elements above. He has to evidence that the producer either negligently put a defective product into circulation or committed another infringing act, and that the defect that caused the damage did not exist at the time he has put the product into circulation or he committed the other infringing act. The burden of proof for culpable behavior generally lies with the injured party, as well. However, if the injured party is able to show that a product was defective and caused damage it is usually up to the defendant to show that he acted with diligent care and did not act faulty since the injured party has no insight into the organizational circumstances at the producer. The mere trader of a product is usually not liable unless he had reasons to suspect the defect or imported the product from abroad without additional checks that the product is safely marketable under the EU standards.

Liability for defective products may i.a. result from unsafe product design, construction defects, wrong or missing instructions and in case a defect becomes known, from the violation of the producer’s obligation to warn the market. Moreover, the producer has to monitor the market by adequate market surveillance. The individual duties of care depend on whether or not the product meets the safety expectation that is deemed necessary for the customary usage in the respective industry. Therefore, at the time a product is put into circulation, the design and construction must comply with state-of-the-art science and technology to prevent damage. The burden of proof lies with the defendant to show that he complied with his obligations explained above.

United States Small Flag United States

To recover in a product liability action in Virginia, a plaintiff must prove that: (1) the goods were unreasonably dangerous for ordinary or reasonably foreseeable use; (2) the unreasonably dangerous condition existed when the goods left the defendant’s control; and (3) the defective product proximately caused plaintiff’s injuries. See Logan v. Montgomery Ward & Co., Inc., 216 Va. 425, 428 (1975); see also Garrett v. I.R. Witzer Co., 258 Va. 264, 267-68 (1999); see also Evans v. Nacco Materials Handling Grp., Inc., 295 Va. 235, 246 (2018) (“Whether a plaintiff proceeds under a theory of warranty or negligence, the plaintiff must prove: (1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the defendant’s hands.”). These elements are essentially the same whether a plaintiff sues for negligence or breach of warranty. See Benedict v. Hankook Tire Co., Ltd., 295 F. Supp. 3d 632, 640 (E.D. Va. 2018) (“Virginia largely has abandoned the distinctions between negligence and non-negligence causes of action in products liability actions.”).

Denmark Small Flag Denmark

Under the product liability developed in case law, the decisive factor for establishing product liability is that the product is defective, and the product's harmful or dangerous properties caused the damage or injury. It is for the claimant to prove the causal connection.

The basis of liability in the product liability developed in case law is dual, meaning that both fault giving rise to liability and a defect must be established.

A product is found to be defective if it is not as safe as reasonably expected. The basis for the assessment is the point in time when the use of the product started after it was brought into circulation. The assessment also takes into account the use of the product that can reasonably be expected and the marketing of the product.

Damage or injury caused by a defective product exists when a product can cause damage to anything other than the product itself because of a defect or dangerous property when used normally.

The claimant must prove a causal connection between the damage or injury and the product, and that the damage or injury was caused by the defect in the product. This burden of proof applies under both the Products Liability Act and the product liability rules developed in case law.

The Act applies only to personal injury and consumer property damage, whereas the scope of application of the product liability developed in case law is broader. The claimant is free to decide which set of rules to rely on in support of its product liability damage or injury claim (provided that both sets of rules apply to the damage or injury in question).

Russia Small Flag Russia

A causal link and compliance of the product with all applicable statutory regualtions would be the main elements to prove within the proceedings on non-contractual liability related to products and consumers’ claims.

Austria Small Flag Austria

Under the Product Liability Act the claimant has to prove the damage he suffered, the product’s defect, as well as the causality between the damage and the defect.

In order to succeed under the General Civil Code the claimant also has to prove the breach of duty and the fault of the perpetrator.

Updated: April 11, 2019