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Interaction between the European Directive on Product Liability and the former liability regime in Italy
ELEONORA RAJNER I
Introduction
Fifteen years after the implementation of the European Directive on product liability no more than ten cases have been decided by Italian courts. Trying to explain the EC Directive’s impact on the Italian legal system, I will first describe the former liability regime engineered by the courts and by the scholars on the matter: usually, when a new social problem arises requiring a legal solution in a civil law system, the courts intervene before the legislator. Therefore, since the EC Directive has been enforced, it has started to interact with the solution previously adopted by the courts. I will then examine the application of the new law, pointing out in particular how the open-ended definition of ‘defect’ is interpreted and applied. The applications are not exempt from incoherence due to the ambiguous nature of product liability law, constantly shifting between tort law and contract liability. After comparing the former and the latter regime, we find that the EC Directive does not give any further advantage to consumers; on the contrary it provides several limitations to their right of claim. This makes other regimes more attractive. In particular, the EC Directive missed the opportunity to face the procedural problems arising from a mass tort case in order to improve access to justice. Consequently, whenever the consumer chooses to sue someone other than the manufacturer under a concurrent regime, or chooses not to sue any one, the product liability law fails to achieve its functions.
Italian background to the European Directive
The social problem of injuries caused to consumers by defective products had already been worked out in Italy (as in the other European Member States), when the EC Directive on product liability came into force. The
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solution adopted was substantially the same everywhere and consisted in channelling the liability for these injuries towards the manufacturer. But the instruments used in order to achieve this solution were different in the different Member States.
In Italy the solution was engineered by the courts using instruments already existing in the legal system. The instruments available were: the liability related to the sale contract law, the general provision of Art. 2043 c.c. on fault liability and one of the strict liability hypotheses described by the legislator.
Instead of enlarging contractual liability beyond parties linked by privity, the Italian courts chose general tort law with some adjustments.1 This choice led to a 1964 case ruled on by the Corte di Cassazione:2 Mr and Ms Schettini ate some biscuits produced by Saiwa which had allegedly gone off. Because of the defect Mr and Ms Schettini suffered food poisoning and, as a result, an economic loss due to the medical fees. Mr Schettini, who, by chance, was a lawyer, sued the manufacturer, claiming compensation. He argued that the manufacturer was liable under art. 2043 codice civile (hereafter c.c.) that states: ‘(Q)ualunque fatto doloso o colposo che cagiona ad altri un danno ingiusto, obbliga colui che ha commesso il fatto a risarcire il danno.’3 Hence, the prerequisites of the liability are: the damage, the causality and the agent’s fault.
The claimant proved the damage by medical expertise. The causality was considered proven by the fact that the producer offered to change the defective product with another one when Mr and Mrs Schettini wrote him a letter complaining about the injury. But, as the defendant objected, the claimant was unable to prove the manufacturer’s fault.
The problem was that theoretically Italian courts are not allowed to increase the strict liability hypothesis detailed by the legislator because these are exceptions to the general principle of fault liability and, as exceptions, they are in numerus clausus. Of course, none of the legislative provisions concerned the manufacturer’s liability for defective products.
1Since 1960 Italian doctrine started to rethink the role of the civil liability as an instrument for distributing the profit between entrepreneurs and consumers; in particular attention was paid to the strict liability rule as an instrument for making the firm liable. See P. Trimarchi, Rischio e responsabilit` oggettiva (Milano, 1961); S. Rodota,` Il problema della responsabilit` civile (Milano, 1964).
2Cass. civ. 25-5-1964 n. 1270, Foro it., 1965, I, 2098.
3‘If an act committed through fault or intention causes an unjust damage to somebody else, then the person who has committed the act must compensate the damage.’
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The Court resolved the problem affirming that this is not a strict liability case, because the manufacturer’s fault is still relevant, but the fault does not have to be proven by the claimant as it is in re ipsa, i.e. by the fact that the product had a defect and that this defect caused an injury to the claimant.4
In practice, the court created a sort of liability which is half way between strict liability and fault liability: fault is still necessary, but the burden of proof has been reversed in order to protect the claimant’s position.
In some pharmaceutical product cases, courts have increased the manufacturer’s liability by applying the strict liability provision of art. 2050 c.c. Under this rule the person who causes damage to somebody else while he is carrying out a dangerous activity is held strictly liable unless he is able to prove not only that he was not at fault, but also that he used all the appropriate (i.e. existing) measures in order to avoid the risk of injuries.5 In Fiorasi v Soc. Crinos the claimant argued that she got hepatitis because of an infected blood product used for the manufacture of Trilergan, a medicine she was taking for her cephalalgia treatment. In that case the court held that putting into circulation a potentially injurious product is a dangerous activity under art. 2050 c.c.6 Therefore the manufacturer was held strictly liable considering that he did not succeed in proving that he had taken all the appropriate measures in order to avoid the risk of damage, as we will see in more detail below.
The implementation of the European Directive
Italy implemented the EC Directive in 1988 with the d.p.r. n. 224, which follows quite literally the European provisions, including the rule of the development risk defence and the threshold of compensation for injuries caused to products other than the defective one.
The European solution for product liability has been implemented over and above a system of legal rules already engineered by courts and by scholars. Nevertheless the Italian courts did not seem to feel any gap or any interruption between the old and the new discipline. Indeed, in a case which began before the enforcement of the EC Directive, but decided
4It is known that an improper use of the presumption is a typical judicial device to introduce a legal change avoiding the trauma of a breakdown in the system. See M. Franzoni, Colpa presunta e responsabilit` del debitore (Padova, 1988), p. 2.
5Cass. civ. 15-7-1987 n. 6241, Foro it., 1988, I, 144; Cass. civ. 27-7-1991, Nuova giur. civ., 1992, I, 569; Cass. civ. 20-7-1993 n. 8069, in Giur. it., 1993, I, 1, 1118.
6Cass. civ. 15-7-1987 n. 6241.
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afterwards, the Corte di Cassazione held that the new discipline could be useful in order to enlighten the correct application of the old one.7
The claimant claimed compensation for physical injury which had occurred when he was a twelve-year-old child and his hand was crushed by the chain joint of a swing. Because this joint was built like a pair of scissors, his thumb was severed from his hand. The crucial point of the case was to decide whether or not the conduct of the victim was reasonably foreseeable by the manufacturer. Surprisingly the court stated that the swing’s manufacturer was not liable because the child’s conduct (he was standing on the machine instead of sitting properly) was not one that could be considered reasonably foreseeable. Therefore the product was not defective following the definition of ‘defect’ given by the European Directive.
The concept of defect was indeed the question most often discussed in the first applications of the product liability law.
Definition of a product’s defect
The definition of defect is based on the concept of expectations: on one side the consumer’s expectations about the safety of the product, on the other side the manufacturer’s expectations about the use of the product. Hence an objective concept of defectiveness (i.e. a general standard of safety fixed by the law) does not exist. This means that the consumer is free to buy a less expensive product as long as he lowers, at the same time, his expectations on safety. This is exactly what happens whenever a consumer chooses, for example, to save money by buying a cheap car instead of a more expensive one: he knows that the cheaper car has (among other disadvantages) fewer safety features. As a consequence of his conscious choice he has to be more careful using this product than if he had bought the more expensive one.
Concerning the manufacturer’s expectation, the product is defective under the law only if the damage occurred when the consumer used it in the normal way, i.e. foreseeable from the manufacturer’s point of view. If the consumer used the product in a way that is not considered normal by the court, then he is held responsible for his own conduct.
In other words, the European law takes into consideration the interaction between the user’s and the manufacturer’s conduct in order to
7 Cass. civ. 29-9-1995 n. 10274, Foro it., 1996, 954.