difficulty of assessing whether the responsibility was more that of the manufacturer who designed the bunk bed or of the seller who installed it without remarking on the defective installation instructions, the tribunal assumed that there was a joint and several liability for the injury that occurred. In other words the tribunal used Art. 9 of the Italian law, which explicitly allows the manufacturer to share his liability with any other person who has been found liable for the same injury. In this sense it is clear that the legal provision represents a benefit not only for the claimant (who can claim compensation from more than one liable person) but also for the manufacturer (who can share his liability with another person). It does not matter if, as in this case, the manufacturer is held liable under product liability law and the other person under contractual law, because the Italian legal system allows the non-concurrence of contractual liability and civil liability for the same injury.20 And it does not matter if the EC Directive allows joint and several liability only among persons who have been held liable for the same injury ‘under the Directive’s provision’, because the Italian law does not require this last limitation.21

In the aforementioned case of the short worker and the textile machine, the tribunal held jointly and severally liable both the machine’s manufacturer and the employer who bought the machine, without specifying too precisely under which legal provision the latter was held liable. Instead of applying the employer’s liability, or the seller’s liability, the tribunal evoked vaguely general tort law.

Recovery for emotional distress

What is also interesting to observe in these two cases is the tribunal’s opinion on recovery for emotional distress. Under the usual interpretation of Art. 2059 c.c. it is recoverable only if the fact which caused the

20 P. G. Monateri, Il cumulo di responsabilit` contrattuale e extracontrattuale (Padova, 1989).

21The commentator on the Italian law who noticed this imprecision has suggested that the expression ‘other persons’ should be better interpreted as ‘other producers’ in order not to betray the Directive’s ratio (D. Poletti, ‘Commento a art. 9, pluralita` di responsabili’, in Pardolesi and Ponazanelli (a cura di), La responsabilit` per danno da prodotti, in Nuove leggi civ. commentate, 1989, 600). But Italian courts do not seem to have taken note of this suggestion. Concerning the ECJ’s decision on French law which refused the possibility for Member States to increase the liable persons under the Directive provision, it should be noted that Italian courts have increased the liable persons but not under the same law (Case C-52/00, Commission v France [2002] ECR I-3827). However the Directive’s ratio is betrayed, as I will point out below.

injury is also relevant under criminal law. In order to qualify this as a crime, the manufacturer’s fault has to be proven. As under product liability law fault does not matter (assuming that it is a strict liability case), the courts have affirmed explicitly that this damage is not recoverable.22 Nevertheless, because in these cases another person has been held liable under general tort law (which in contrast requires fault), the court assumed that the Art. 2059 c.c. requirements were fulfilled and, consequently, ordered both to compensate also the emotional distress.

Nevertheless it is also to be remarked that recently the courts have extended the possibility of compensation for non-material damages, overruling the doctrine which excludes this compensation in strict liability cases. In 2003, in the case about the explosion of a coffee machine, the Tribunal of Vercelli held that the fact that the manufacturer is strictly liable under the European Directive does not preclude a finding of liability also for non-material damages when fault is proven. Therefore, considering that the lack of information proves the manufacturer’s fault, the tribunal condemned him to pay also for non-material damages. Going further the Corte di Cassazzione held that non-material damage has to be compensated also in strict liability cases because there the fault, even if not investigated by the court, is presumed as existing by the law.23 Under this new doctrine, it is relevant to establish if the Directive charges the manufacturer with an absolute strict liability, or with a strict liability which presumes the existence of the fault.

The use of presumptions

In Facanabia v F.lli Sacl` s.p.a. the judge agreed with the claimant’s claim for compensation for physical injuries which occurred when he bit a small piece of metal hidden in rice seasoned with ‘Condiriso’, a product supplied by F.lli Sacla` s.p.a.24 The victim sued F.lli Sacla` assuming that the small piece of metal was in the ‘Condiriso’ and not in the rice. The judge did not even question the claimant’s assumption and did not allow the defendant to give evidence of the fact that he had taken all reasonable care to avoid this kind of damage: the judge stated that this evidence was already contradicted by the fact that the damage had occurred. So, by

22Trib. Roma 17-3-1998, in Foro it. (1998) I, 3660; Trib. Milano 31-1-2003, cit;

23C. Cass. 12 May 2003 no 7282, in Resp.civ.e prev., 2003, 682 – the case concerns the damages caused by a car accident.

24Giudice di pace di Monza 20-3-1997 n. 1386, in Arch. civ., 1997, 876.