What are the main elements which a claimant must prove to succeed in a strict liability type claim for damage caused by a defective product?

Product Liability

India Small Flag India

Indian courts have significantly developed the concept of strict liability and the more stringent rule of absolute liability to deal with problems of a highly industrialised economy. However, the concept of strict liability has predominantly been applied in the context of environmental pollution and protection related matters. The jurisprudence on strict liability under tort law has not evolved significantly in India with respect to product liability claims. Having said that, the CPA, in a sense, codifies the principles of liability with respect to sale or supply of defective products to consumers. The redressal under the CPA is only available to aggrieved parties who fall under the statutory definition of a 'consumer'. A 'consumer' has been defined under the CPA to include persons who have purchased or hired goods or services for consideration and does not extend to purchase for resale or commercial purposes. Aggrieved parties not being a 'consumer' under the CPA would be required to seek alternate methods of grievance redressal through civil suit or under contractual liability.

To establish causation in product liability cases under Indian law, every fact establishing the elements of a cause of action must be proved by the aggrieved party. Therefore, in cases relating to defects in products, based on the trend of judicial precedents in this regard and depending on the factual circumstances, the burden of proof will be on the aggrieved party to prove (a) presence of a defect in the products, (b) breach of warranty or condition (implied or expressed), or (c) breach of duty of care and resulting damage (in instances involving negligence). In some instances, however, Indian courts have gone as far as holding that the existence of the defect in the product implies negligence.

Japan Small Flag Japan

A claimant must prove the following elements to succeed in a strict liability type claim for damage caused by a defective product (Article 3 of the PLA):

(i) The product was defective when the manufacturer, etc. delivered the product

(ii) Damages

(iii) Causal relationship between the alleged defect and the alleged damages.

The term ‘defect’ as used in the PLA means a lack of safety that the product ordinarily should provide, taking into account the nature of the product, the ordinarily foreseeable manner of use of the product, the time when the manufacturer, etc. delivered the product, and other circumstances concerning the product (Article 2(2) of the PLA).

It is not necessarily clear whether the court in Japan has adopted either consumer expectation standards or cost-effective standards in determining defect and the outcome will depend on the products in question.

Turkey Small Flag Turkey

Contrary to the EU Product Liability Directive (85/374/EEC), under the Turkish Code of Obligations (6098), the indemnification obligation arising from defective or flawed products is a fault-based liability – the code provides no strict liability due to a defective product. Accordingly, a party which has suffered damage due to a defective product must prove:

  • the damage;
  • the causality; and
  • the fault of the manufacturer or concerned party.

By contrast, under the Law on Consumers’ Protection, any party which suffers damages as a result of a defective product may claim these damages from the producer of the product in question without the need for proof of fault. According to the law, the damages arising from defective products are regulated as strict liability. In such cases, the producer or manufacturer may be relieved from liability if it provides proof of relief. A specific regulation governs such cases.

South Korea Small Flag South Korea

(1) Liability without fault

Under the principle of liability without fault, it is not necessary to prove the intention or negligence of the responsible person.

(2) Defects in products

A defect in a product means that it ‘lacks the safety normally expected’. A product means manufactured or processed personal property, which excludes real property, raw agricultural products and services. The mere fact that the performance or quality of a product is below standard (without any safety-related damage) cannot serve as a basis for finding defect under the Product Liability Act. The Product Liability Act categorizes defects in a product as (i) manufacturing defect, (ii) design defect, or (iii) labelling defect, and additionally provides the general rule that the Act applies in the case of lack of safety commonly expected of a product. Therefore, even if a product is not defective under the above three defect categories, if it lacks safety commonly expected of such product, then such product may nevertheless be deemed defective and be subject to the Act.

(3) Damage to life, body or property

The damage recognized by the Product Liability Act consists of damage to the life, body or other property of a person caused by a defect of a product. The Product Liability Act explicitly stipulates that “damages inflicted only to the relevant product” is excluded from compensation under the Product Liability Act. And a Supreme Court precedent explains that “damage inflicted only to a product”, which is excluded from the damage recognized by the Product Liability Act, is considered to include not only the property damage caused to the product itself but also any business loss caused by the defect in the product.

(4) Causal relationship

Courts have been recognizing that it is practically impossible for the person claiming liability (the injured person) to prove the manufacturer's manufacturing and design defects and to prove the causal relationship between the defect and the damage, especially in cases where the product is produced by high technology. And in this regard, court precedents have alleviated the burden of proof for causation by presuming product liability if the injured person can prove (i) that the damage occurred in the exclusive domain of the manufacturer and (ii) that the damage does not normally occur without a person’s fault.

Reflecting this trend in court precedents, the Product Liability Act, was amended in 2017 to establish the elements for presuming product liability. According to this amendment, if the injured person proves the following facts, it is presumed that the product had a defect at the time the product was supplied and that damage to the person was caused because of the defect:

(i) that the damage was caused to the injured person while the product was being used normally;

(ii) that the damage referred to in (i) was attributable to a cause practically controllable by the manufacturer; and

(iii) that the damage referred to in (i) would not ordinarily be caused if it were not for the relevant defect of the product.

This amendment is interpreted as a more relaxed burden of proof, stipulating that the law only requires proof that the damage occurred in a practically controllable situation, rather than requiring that the damage occurred in the exclusive domain of the manufacturer. However, because courts also did not require complete exclusiveness in the prior court precedents, the progress of the case law applying the amendment should be watched to see if the amendment actually results in a difference in the burden of proof of the injured person.

Australia Small Flag Australia

Consumer guarantees

Part 3-2, Division 1 of the ACL attaches a number of guarantees to the supply of goods and services to consumers. Where these consumer guarantees are not complied with, Part 5-4 of the ACL gives a “consumer” who suffers loss or damage as a consequence of the failure to comply a remedy against the goods supplier and, in some cases, manufacturer. This means that under the ACL, liability will arise directly in respect of:

  • goods which do not correspond with their description;
  • goods of unacceptable quality;
  • goods which do not conform to sample;
  • goods unfit for a stated purpose; and
  • non-compliance with express warranties.

Privity of contract is no barrier to relief.

The operation of these statutory warranties and guarantees is restricted to claims of consumers who have suffered loss or damage as a result of their use or consumption of consumer goods. These are goods that are ordinarily acquired for personal, domestic or household use or consumption.

Liability for injury caused by defective goods

Under the ACL, manufacturers will be held strictly liable directly to consumers for injury to persons or property damage suffered as a result of a defective product. Goods are considered to be defective if their safety is not such as persons generally are entitled to expect. The ACL also makes it clear for the purposes of applying this test that a defect may exist by reason of product-related design, testing, manufacturing, warnings and directions for use.

The statutory consumer guarantees and the defective product causes of action under the ACL are often referred to as “strict liability” provisions. For actions for breach of a consumer guarantee, a claimant need not prove fault, but nonetheless must establish, on balance that, for example, the subject goods are not fit for purpose or are not of acceptable quality in the circumstances. For a defective goods action, a claimant needs to prove that the subject goods have a safety defect, i.e. are not as safe as persons are generally entitled to expect (having regard to all relevant circumstances).

Defective goods actions under Part 3-5 of the ACL may arise where a person has suffered loss or damage because of a safety defect. A person may be able to recover damages for loss or damage suffered where it is reasonably foreseeable that the consumer would suffer such loss or damage as a result of the failure to comply with a consumer guarantee (Part 5-4 of the ACL).

France Small Flag France

The following elements must be cumulatively proven by a claimant to succeed in a strict liability claim:

  • A damage suffered by the claimant or his/her property other than the defective product itself;
  • A product defect; and
  • A causal link between the product defect and the damage suffered by the claimant.

Regarding the characterisation of the defect, product is defined as defective when it does not provide the safety one can legitimately expect of it.

The safety that can legitimately be expected of the product is assessed according to the common legitimate expectations of an average user.

All the circumstances regarding the product must be considered, including the way in which the product is presented, the use that can be reasonably expected of it and the time when the product was put on the market.

The claimant must provide proof of the product's participation in the occurrence of the damage(s) suffered (Supreme Court, 29 May 2013, n° 12-20.903).

Brazil Small Flag Brazil

The claimant must prove the damages suffered by a defective product. Moreover, the claimant is also entitled to prove the connection line between the defective product and the damage suffered.

China Small Flag China

As mentioned, under PRC law, product liability follows the principle of strict liability. In order to prevail in a tort liability claim for damage caused by a defective product, the claimant should prove the following three elements:

  1. The disputed product is defective (an act of tort);
  2. The claimant is injured or suffers losses (damage);
  3. The defect of the product causes the injury or loss (causality).

United Kingdom Small Flag United Kingdom

The CPA imposes strict liability for personal injury or damage to personal property caused by a defective product. The claimant must show that the relevant product was defective at the time of use and the defect caused the damage. It is not necessary for the claimant to prove how or when the defect arose (e.g. a claimant in a car crash caused by defective car brakes does not need to show how the brakes failed to work or what caused the failure of the brakes).

This basis of liability focuses on the nature and safety of the product itself rather than the actions of the entities in the supply chain; liability does not require proof of fault and very limited defences are available.

A product is deemed to be 'defective' if its safety is not as people generally are entitled to expect, taking into account factors such as instructions for use or warnings.

In these types of claims the courts are often required to consider if and how the product is defective and this is not always a straightforward question. In 2018, the High Court considered a strict liability claim in Gee & Others v DePuy International Limited. The court was asked to consider whether a known and inherent characteristic of a product (here, a hip prostheses) could in and of itself be a defect. The defendants successfully argued that a known consequence of the ordinary use of the product could not amount to a defect.

Damages for this type of claim are compensatory only i.e. not punitive (see question 8 below for further details). Provided a causal link exists between the defect and the damage, the potential award can be unlimited. Damages claimed under the CPA must be in excess of £250.

Germany Small Flag Germany

Strict product liability is fully harmonized in the EU. In case a defect in a product causes a person's death, injury to his body or damage to his health, or damage to an item of private property, the producer of the product has to compensate the resulting damage. Items of property are only covered if they are ordinarily intended for private use or consumption. Consequently, a claimant has to prove that a) a product had a defect b) this defect has caused a damage as defined above and c) who the producer of the product was (see definition of the producer below).

United States Small Flag United States

Virginia has not adopted strict liability in tort and does not permit recovery in tort on a strict liability theory in products liability cases. See Evans v. NACCO Materials Handling Grp., Inc., 295 Va. 235, 246 (2018); see also Harris v. T.I., Inc., 243 Va. 63, 71 (1992).

Denmark Small Flag Denmark

Under the Products Liability Act, 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.

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

The doctrine of damage to the product itself is a fundamental element of product liability law, also under the product liability rules developed in case law.

The Products Liability Act stipulates that in order to claim damages for damage or injury caused by a defective product, there must be a causal connection between the defective product and the damage or injury. It is for the claimant to prove the causal connection.

Where contributory negligence on the part of the claimant is established, the amount of damages may be reduced.

Russia Small Flag Russia

The principle of strict liability (as opposed to fault-based liability) applies to the injury caused by defective products or lack of information regarding the product, given that the products were bought for personal use.

The LCRP establishes the following types of product liability:

  • proprietary liability for damage caused by product defects;
  • liability for failure to provide full information on the product;
  • liability for violation of consumer rights; and
  • compensation for moral harm.

The aforementioned types of liability do constitute both fault-based and strict liability and may be directly or indirectly related to the product defects.

Practically, the main questions within the proceedings on liability for product defects are the following:

  • does the product differ from the established safety and quality requirements;
  • did the respondent violate any public requirements while dealing with the consumer;
  • are the wrongful actions of the respondent faulty (if applicable); and
  • was any harm (including moral) caused.

Both the Civil Code and the LCRP stipulate that any injured person has the right to claim compensation, despite lack of any contractual relationships between consumer and seller or producer. The consumer has the right to choose whether the tort loss caused by defective goods shall be compensated by the producer or by the seller.

The consumer may also claim damages caused by distribution of the defective product. This claim may be filed against the seller or an authorised entity. In certain cases, the consumer may also claim an exchange of the product or its free repair, decrease of the product’s price or claim termination of the contract. Repair and exchange may also be claimed from the producer or importer.

Usually the defect standard needed for establishing a respondent’s liability in product liability cases will stand with the compliance of the product features (or actions of the respondent) with both applicable public and contractual requirements (including warranty terms, quality representations, etc).

As a general rule, the manufacturer, seller, authorised entity or importer shall bear the burden of proof in respect of the argument that the product was of due quality at the time of its transfer to the consumer.

The burden of proof may be shifted to the consumer in the case no warranty period was established with respect to the product and certain other cases, including the following:

  • the warranty period for the product was not established;
  • the product defects were discovered by the consumer after expiry of the warranty period but within two years of transfer of the product to the consumer; and
  • the substantial product defects were discovered by the consumer after two years from the date of transfer of the product to the latter, but within the lifetime (or within 10 years of the transfer of the product if the lifetime was not established for the particular product).

A causation link between the alleged product’s defect and the damage accrued presumably as a result of such defect has to be proven in the course of the proceedings. Arguments on presence or absence of the causational link have to be supported by evidence (medical reports, results of the technical examinations, etc). Therefore, arguments on exposure of the increased risk of negative causes to the consumer may not be solely used for establishing the causation link between the defects.

Russian procedural legislation does not prescribe the particular means for proving the existence of the causational link and certain negative causes. Parties are free to present any arguments or pieces of evidence as well as claim certain pieces of a counterparty’s evidence as being non-related to the subject of the dispute.

Austria Small Flag Austria

The claimant has to prove the damage he suffered, the product’s defect, as well as the causality between the damage and the defect.

A product is deemed to be defective if it does not provide the safety which, taking all circumstances into account, may be reasonably expected, in particular with respect to:

  1. the presentation of the product,
  2. the use to which it can reasonably be expected that the product would be put,
  3. the time when the product was put into circulation.

Updated: April 11, 2019