When consumers buy a product that turns out to be defective, not only can they ask for a remedy or compensation for the faulty item, they are also entitled to compensation for any damages caused by the defective product. For instance, if an electric appliance catches fire and damages the house of the consumer, the latter may request a remedy both for the defective appliance and compensation for other damages caused to the house. If during the incident consumers hurt, they may also make a claim for the injuries suffered.
What is a ‘defective’ product?
A product is considered defective if it fails to operate with the safety that consumers are entitled to expect, or it does not provide the safety usually provided by models of the same type. However, a product will not generally be considered defective just because a safer version is later put on the market.
In assessing the safety of a product, the following circumstances are taken into account:
• the product’s presentation and how it was marketed;
• any instructions of use and warnings provided;
• what might reasonably be expected to be done with the product, or what the product would be expected to be used for;
• the time when the product was put into circulation.
Who is liable for defective products?
The Consumer Affairs Act stipulates that the product’s producer is primarily liable for damages caused by the defective good. Furthermore, the law defines the producer as the manufacturer of the finished product or of a component part of the product. The definition also includes any person who puts his name, trademark or any other distinguishing feature on the product and presents himself as its producer. In cases of products manufactured or produced outside an EU member state, liability may also be imposed on any person who imported the product into the EU market.
Other than the defective product itself, the damage sustained must have a value of at least €500
The producer, however, cannot be held responsible for damages caused by a product in situations where he did not put the product in circulation. This also applies to situations where the defect causing the damage did not exist when the product was first put into circulation, or the defect could not be discovered due to scientific and technical knowledge at the time the product was manufactured. Furthermore, producers are not liable if the product that caused the damage was not manufactured to be sold to consumers.
If the consumer does not know who the product’s manufacturer is, and when requested, the seller is unable to provide the manufacturer’s contact information, then the final seller may be held liable to provide compensation to the consumer.
Compensation for damages
Consumers can seek compensation for death, injury and damage to property. In addition, to be eligible for compensation, other than the defective product itself, the damage sustained must have a value of at least €500. If the consumer also suffers personal injuries during the same incident, another claim may be made for the injuries suffered.
To be eligible for compensation, all that consumers need is to present proof that the product was defective and that it was the cause of the injury or damage. A producer cannot exclude or limit his liability to provide compensation for damages suffered by consumers. Contract terms or notices denying liability are not legally binding even if signed and agreed by consumers.
The law stipulates that consumers may seek compensation for damages suffered within a maximum period of three years from when they became aware, or should reasonably have become aware, of the defect, the damage and the identity of the producer.
Since a product may remain in circulation for a number of years, legal action is limited to 10 years from when the product is first put into circulation. It is the producer who is responsible to provide proof of when the product was first put into circulation.
If consumers’ claim for compensation is denied, legal action may be taken against the producer. Should the producer be found guilty of placing dangerous products on the market, beside financially compensating affected consumers, the company is also obliged to recall from the market all the faulty goods.
Odette Vella, Director, Information and Research Directorate