Liability for
defective
products
Operational Programmes II – Cohesion Policy 2007-2013
Empowering People for More Jobs and a Better Quality of Life
Project part-financed by the European Union
European Social Fund (ESF)
Co-financing rate: 85% EU funds; 15% National Funds
Investing in your future
These regulations provide for the liability for defective products and thus enable
consumers who suffer damages to seek compensation through the civil courts with
the producer being liable for both personal injury as well as damage to property.
What kind of products are covered
under these regulations:
By product it is meant any movable
and includes:
•
movables incorporated into
another product or into an
immovable;
•
electricity;
•
gas; and,
•
primary agricultural products
which are products of the soil,
farming, fisheries and game.
When can consumers seek compensation?
Consumers can seek compensation when a defective product causes:
•
death;
•
personal injury including any disease and any mental or physical impairment of a
person;
•
loss, damage or destruction of any item of property, other than the defective
product itself, having a value of at least €500.
Damages for loss, damage or destruction of property are
recoverable under these provisions provided that such
item of property was used by the injured party mainly for
his own private use or consumption.
For example, if a cooker in the kitchen of a private
residence is defective and causes a fire that burnt the
surrounding cupboards, the consumer has the right to
seek damages for the burnt cupboards if they cost more
than €500.
If the consumer has also suffered burns during the same
incident he would also have the right to seek damages for
the injuries suffered.
Burden of proof
The injured party does not have to prove any fault on the part of the producer, he
only has to prove the damage, the defect and their relationship.
When a product is considered defective?
A product is defective if it fails to provide the safety a person is entitled to expect,
taking into account:
• the presentation, how it was marketed and any directions and warnings,
• its reasonable use, and
• the time it was put in circulation.
Furthermore, if a product does not provide
for the safety usually provided by models of
the same type it is deemed defective.
However, a product is not considered
defective if a better product is subsequently
put in circulation.
Who is liable for a defective product?
The producer of the product is liable.
By producer it is meant the:
• manufacturer of a finished or
processed product;
• manufacturer of a component part;
• producer of any raw materials;
• producer of any primary agricultural
products; or
• any person presenting himself as the
producer by putting his name/ trade
mark on the product;
• the importer, where the product is
manufactured or produced outside a
Member State.
The supplier will be held liable when:
•
the producer cannot be identified and the supplier fails to meet the request of
the injured party in providing the identity of the producer or the person who
supplied the supplier with the products; or
•
the importer cannot be identified even if the name of the producer is indicated
and the supplier fails to meet the request of the injured party in providing
the identity of the importer or the person who supplied the supplier with the
product.
The supplier has to supply this information within 30 days from when he receives the
written request. The request should be sent by registered mail or official letter. Such
letter should indicate the product that caused the damage as well as the date and
place of purchase.
When is the producer not liable?
A producer may raise the following defences:
•
that he did not put the product in circulation;
•
that the defect causing the damage did not exist when the product was put in
circulation or that such defect came into being afterwards;
•
that the product was not manufactured for sale, distribution for an economic
purpose, or, in the course of his trade or business;
•
that the defect is due to compliance with a mandatory requirement imposed by
law or a public authority;
•
that the defect could not be discovered due to the scientific and technical
knowledge at the time;
•
in the case of a producer of a component part or raw materials, that the defect is
due to the design.
Limitation of action
The action for damages is limited to 3 years from when the injured party becomes
aware, or should reasonably have become aware of the damage, the defect and the
identity of the producer.
In any case, action is limited to 10 years from when the product is first put in
circulation.
The liability of a producer may not be limited or excluded whether by any term of a
contract, by any notice or any other manner.
Consumers who wish to make a claim for
compensation under these regulations,
need to engage a lawyer and take the
case to the civil courts. However, if
claim for compensation does not exceed
€3,500, consumer can submit claim to the
Consumer Claims Tribunal.
Should the producer be found guilty of
placing on the market dangerous products,
the company will not only be obliged to
compensate the affected consumers but
will also be held responsible to recall the
defective product from the market.
Information, Education & Research Directorate
Office for Consumer Affairs
The Malta Competition & Consumer Affairs Authority
Mizzi House, National Road
Blata-l-Bajda
Freephone 80074400/23952000
E-mail: fair.trading@mccaa.org.mt
Website: www.mccaa.org.mt