Liability for a defective product

A public healthcare establishment, in its capacity as a service provider, cannot be held liable, in terms of EU law, for injury or damage caused by a defect in a product used by it for its patients, Advocate General Paolo Mengozzi has recently clarified.

EU law makes provision for liability on the part of a producer to make good any damage caused by a defect in his product- Mariosa Vella Cardona

As part and parcel of the consumer protection policy implemented by the European Union, EU law makes provision for liability on the part of a producer to make good any damage caused by a defect in his product. Such a liability arises without the necessity on the part of the consumer of proving that the producer was at fault. This means that the consumer need not prove negligence or fault on the part of the producer.

The term “producer” is given a very wide interpretation so as to include the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part of a product, an importer as well as any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer.

Furthermore, the law provides that where the producer of the product cannot be identified, each supplier of the product will be treated as its producer unless he informs the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the product. It is important to note that this liability is over and above any claims that the injured person might make under national civil law rules.

In this particular case, a patient suffered burns during surgery carried out in a French hospital. These burns were caused by a heated mattress on which he had been laid and which had a defective temperature control mechanism. French law makes provision for an obligation on the part of a public hospital to pay compensation for injuries suffered by a patient as a result of a defect in equipment or a product used in the treatment he is given, even if the hospital is not at fault. The French court seized of the case made a preliminary reference to the European Court of Justice requesting guidance as to whether it is permissible, in terms of EU law, for a member state to impose such a liability on public hospitals in line with the producer liability provided for by EU law.

The Advocate General affirmed that EU law does not impose liability on a service provider for an injury caused by a defective product in connection with the provision of a service. The directive makes provision only for liability on the part of a producer or, in certain instances, on the supplier of a defective product. A supplier must be construed as referring solely to an intermediary in the supply or distribution chain for that product.

In this case, the person who had suffered the injury was not a consumer who had sought to purchase a mattress but a patient who had been admitted to hospital. Hence, the hospital could not be considered as the distributor of the defective mattress and could not be considered as a “supplier” within the meaning of the directive, the Advocate General asserted.

Nonetheless, member states are in no way impeded from providing for an obligation on the part of service providers such as hospitals to pay compensation for injury suffered by a patient as a result of a defect in equipment or a product used in treating him, even where the establishment is not at fault, the Advocate General opined. In such cases, the hospital would then have a right of recourse against the producer on the basis of the directive.

Though the Advocate General’s opinion is not binding on the European Court of Justice in delivering its ruling, this opinion serves so far as a clarification of the rights and obligations emanating from an important EU law which forms part and parcel of the EU’s consumer protection acquis.

mariosa@vellacardona.com

Dr Cardona is a practising lawyer and a freelance consultant in EU, intellectual property, consumer protection and competition law. She is the deputy chairman of the Malta Competition and Consumer Affairs Authority as well as a member of the National Commission for the Promotion of Equality.