The requisites of tortious product liability:

The requisites of product liability must be shown by the victims of defective products. The existence of the possibility of redress is conditional upon their presence.

Introduction into circulation of a defective product

1. Introduction into circulation

The concept of introduction into circulation, upon which the Directive has been based, existed in Central Europe ever since the first product liability cases appeared in courts. It was not defined in the Civil Codes, but was mentioned frequently in court judgments.162 The doctrine of law attempted to define it, referring to the moment when the product enters the market,163 or when the producer loses control over it.164 The notion extended to all the actors in the distribution chain and was not solely focussed upon the manufacturer.

The requirement of a product actually being introduced into circulation suggests that victims of products not yet introduced into circulation (persons such as employees of the manufacturer or his family) would be unable to use the regime of the Directive in order to recover compensation for their injuries.165 Such an approach to the product liability regime has not been unfamiliar to the Central European jurisdictions, where the courts clearly delimited the scope of applicability of the regimes using the moment of introduction of a product into circulation.166

2. Defective product

It seems clear from the text of the Directive that it did not endorse the division, or ‘boxing’,167 of three types of defects (design, manufacturing and failure to warn defects) so popular in the American and also European

162The judgment of the Polish Supreme Court of 21 November 1980, III CZP 50/80, OSN 1981/205 (defective Fiat 125 engine); in Hungary – Biros´agi´ Hatarozatok´ (Court Decisions) 1973/1 no. 19 (quoted by Maczonkai); Hungary – ‘motorcycle accident’ case.

163W. Czachorski,´ Zobowia˛zania. Zarys wykladu (Warsaw: Wydawnictwo Prawnicze Lexis Nexis, 2002) 230.

166The victims so excluded could therefore use the ordinary regime of liability – normally tortious, but in case of employees of the producer also possibly contractual and other regimes.

167The notion ‘boxing’ was used by Burton J in A v National Blood Authority [2001] 3 All ER 289.

product regimes.168 It seems justified to some extent to abandon the classification into types of defects in a strict liability regime, for considering which type of defect has caused the damage – especially in case of the design and the failure to warn types of defects – involves an analysis of the defendant’s behaviour. The latter analysis surely ought to be abandoned in a strict liability regime. It is a notable fact that, as will be seen from the analysis of the Central European product liability in tort, fault liability systems endorsed these ‘boxes’, in terms of classifying both the types of defects and the types of negligent behaviour of the defendants. The unfortunate fact is that the Directive provides the vague test of social expectations instead. The ‘circumstances’ listed in Article 6 do not assist in a better understanding and application of the standard to complex cases which without a doubt should appear before European courts.

Section 2 of the Hungarian Act on Product Liability reads: ‘A product shall be regarded as defective if it fails to provide a level of safety generally expected, with special regard to the purpose of the product and the way in which it can be reasonably be expected to be used, the information provided in connection with the product, the date of the sale of the product, and the current state of scientific and technological achievements.’ Section 4 of the Czech Act defines a defective product as a product which ‘in terms of safety of its use . . . fails to guarantee the properties as may rightly be expected to pertain to the product, particularly with reference to: (a) the presentation of the product, including the information provided, or (b) the purpose which the product is expected to serve, or (c) the time at which the product was placed on the market’. Interestingly, the Polish regulation abandoned the notion of ‘defect’, considered necessary by the Directive, for the notion of ‘lack of safety’ (thus a ‘defective product’ is referred to as an ‘unsafe product’).169 The rationale behind this approach was the need to distinguish defects of quality, regulated in the provisions concerning legal and commercial guarantees,170 from

168Some authors, however, disregard this dismissal by the Directive to refer to the ‘boxes’, and simply treat their existence as obvious according to the ‘general legal principles’ (C. W. Hoffman and S. Hill-Arning, Guide to Product Liability in Europe. The New Strict Product Liability Laws, Pre-existing Remedies, Procedure and Costs in the European Union and the European Free Trade Association (Deventer: Kluwer Law and Taxation Publishers, 1994) at p. 6).

169Produkt niebezpieczny.

170See M. Sengayen, ‘Consumer Sales Law in Poland: Changing the Law, Changing Attitudes’ 25 Journal of Consumer Policy, Special Issue on Law, Information and Product Quality, No. 3/4 403.

lack of safety.171 The concept of ‘defect’ has, however, been considered by many commentators172 as wide-ranging and all-accommodating, and the use of another, possibly narrower, notion by Poland is likely to upset the delicate relations within the regime. It is very likely that the Commission may consider this discrepancy with the text of the Directive serious enough to commence Article 226 proceedings against Poland. However, it is worth noting that, apart from this difference, the description of the notion follows the text of the Directive carefully. Article 449.1.3 of the Polish Civil Code stipulates that a product shall be considered ‘unsafe’ if it does not provide the safety which can be expected taking into account normal use of the product. Circumstances from the time of its introduction into circulation are said to determine the safety, and in particular the presentation on the market and the information about the qualities of the product provided to consumers.173 All the Central European regulations on product liability contain the ‘state of the art’ element stating that the product cannot be deemed defective (‘unsafe’) merely because a safer product has later been put into circulation.

In spite of the fact that the ordinary tortious liability regimes utilised the ‘boxes’ system with regard to defects, the emphasis upon safety and not merely the quality of products has been a significant factor which the case law of Central Europe and the Directive have had in common.174 A number of types of defects were recognised by the Central European product liability regime. Defects which had their origin in the design of products (design defects) were discussed in the Polish and Hungarian ‘television sets cases’.175 Manufacturing defects were established by the courts in the Polish ‘pin in the cake case’,176 the Hungarian ‘motorcycle accident case’177 and the Czech ‘poor quality cement case’.178 Instruction

171 E. Le˛towska, Ochrona Niekt´orych Praw Konsument´ow. Komentarz (3rd edn, Warsaw: Wydawnictwo C. H. Beck, 2001) at p. 135.

172See for instance Stapleton, Product Liability.

173Translated by the author of the study.

174Central European courts and doctrine of law expressed the view that a merely defective product could not give rise to product liability and that the product must have had some dangerous features rendering it unsafe for use (decision of the Polish Supreme Court of 21 November 1980, III CZP 50/80, OSN 1981/205 – (Sengayen, ‘Consumer Sales’)).

175The judgment of the Polish Supreme Court of 24 July 1981, IV CR 252/81, OSN 1982/84. Legfelsobb˜ Biros´ag´ Gf. III (Supreme Court of Hungary. Economic Affairs College) 31. 208/1984, quoted by Maczonkai, Hungarian Product Liability Case Law, p. 113.

176The judgment of the Supreme Court of 6 August 1981, I CR 219/81, OSPiKA 1982/7–8, p. 144.

177Biros´agi´ Hatarozatok´ (Court Decisions) 1973/1, No. 19, quoted by Maczonkai, Hungarian Product Liability Case Law, p. 111.

178Judgment of the Supreme Court of the Slovak Socialist Republic Cz 29/75.

or information defects were common indeed. The Polish judgment in the case of a chemical mousse is a classic example – the case involved a chemical mousse for use in the bathroom, equipped with inadequate warnings as to the danger of explosion.179 A similar case took place in Hungary.180 The Polish and Hungarian ‘television sets cases’181 and the Polish ‘airbag case’182 were other examples. Further, another type of defect was recognised in Poland, directly related to the information defect. In the chemical spray case it was held that the fact the manufacturer and the seller of the chemical did not supply protective equipment, the use of which was according to them necessary for safe use of the product, rendered the chemical defective.183 Finally, ‘observation defects’ – the professionals’ failure to fulfil the obligation to monitor products introduced by them into circulation for possible defects and dangers not known before – were also recognised. ‘Television sets cases’ in Poland and Hungary illustrate this issue.

It seems that, in spite of the ‘boxing’ apparently not desired by the Directive, the Central European courts continued their work in the direction set by this instrument. Products were supposed not to present dangers to those using them and their property, and those which caused damage could be the subject of product liability litigation. In a strict liability regime the notion of ‘defect’ is obviously likely to gain even more importance,

179The Judgment of the Polish Court of Appeal of Bialystok of 30 November 2000 (I ACa 340/00, 43–9). The instructions on the packaging informed the users of the necessity of holding the can in the desired manner, and warned that one should not use the mousse in closed spaces and should not heat the can, without however indicating the consequences of not following the warnings.

180Le˛towska and Maczonkai, Hungarian Product Liability Case Law, p. 110.

181Here the producers were shown to have known of the danger of sudden explosion of the TV sets (from previous accidents), and failed to pass this information on to the buyers, or withdraw the sets from the market.

182Judgment of the District Court of Rzeszow´ of 18 April 2001, Rzeczpospolita 19 April 2001. The case involved a Fiat Mondeo in which the airbag suddenly inflated (while the car was parked), injuring the claimant. The judgment focussed upon the fact that the dealers were aware of the danger of sudden inflation of the airbag, but failed to inform the buyer (the father of the claimant) about it.

183The Judgment of the Supreme Court of 28 June 1972, II CR 218/72, OSN 1972/228, 67–74. This was an example of a tragic set of events (leading to the deaths of two people) caused by the lack of appropriate warnings and protective equipment. The information contained on the packaging of the spray included instructions for proper use – in closed spaces a gas mask capable of protecting from contact with benzol ought to be worn. Unfortunately masks of this sort were not available on the market at the time. The Court indicated that the manufacturer’s and the seller’s fault had been demonstrated in their failure to provide such gas masks (it seems that producing them would be a good solution for the manufacturer). Another aspect of the case were inappropriate warnings on the can of the spray – warning of the danger of poisoning, not of death.