Sometimes the goods we purchase may not only be defective but may also be dangerous to our health and safety. Items that do not function properly may also cause damage to surrounding goods.
For instance, if a damaged cooker that leaks gas causes an explosion, it might not only hurt the person using it, but it might also cause substantial damage to the kitchen furniture.
In these circumstances, the Consumer Affairs Act not only provides for a remedy for the defective cooker, which can be repair, replacement or a refund, but also provides compensation for the injured party – the customer.
Compensation can, in fact, be claimed when defective products are physically harmful to consumers and/or cause material damages.
However, claims for damaged property can only be made if the loss exceeds €465 and the damaged item has been used by the injured consumer for his own private use or consumption.
When damages due to defective products occur, the Consumer Affairs Act stipulates that the injured party must only prove what damage was caused, the defect of the product that caused the damage and the causal relationship between the defect and damage. Thus, the consumer does not have to prove the producer’s fault.
What makes a product defective and dangerous?
A product is considered defective and dangerous when it fails to provide the safety a person is entitled to, taking all circumstances into account, including:
a) the presentation of the product, how it was marketed, and any directions and warnings provided;
b) the use to which it could reasonably be expected that the product would be put; and
c) the time the product was put into circulation.
A product is, in fact, considered defective if it does not provide for the safety usually provided for by other models of the same type.
However, a product shall not be considered defective just because a better product is created and placed on the market.
Who is responsible for dangerous products?
It is primarily the producer who is responsible for dangerous products. If, however, the producer cannot be identified and the retailer fails to meet the consumer’s request to provide the identity of the producer or importer, then the supplier of the product becomes responsible for the product sold.
Whenever requested, information on the producer should be supplied within 30 days of when the supplier receives the written request. Consumers have the responsibility to send this request by registered mail or an official letter, and must also clearly indicate the product that caused the damage as well as the date and place where the product was purchased.
What kind of damages may be claimed by the consumer?
Part VIII of the Consumer Affairs Act stipulates that the damages that may be recovered are damages caused by death or personal injury; or loss of or damage to any item of property other than the defective product itself. However, as already stated, the damaged property should have a value of at least €465.
Compensation for damages may be claimed within three years from when the consumer has become aware of the defect, damage and identity of the producer.
At the same time, the law stipulates that legal action cannot be taken after 10 years from when the product is first put in circulation. The burden of proving when the product which caused the damage was put into circulation, lies on the producer.
Consumers who wish to make a claim for compensation for damages caused, need to engage a lawyer and take the case to the civil courts.
Should the producer be found guilty of placing dangerous products on the market, the company is not only obliged to compensate affected consumers but should recall the defective products from the market.
This liability cannot be limited or excluded by any term of a contract, by any notice, or in any other manner.
customer@timesofmalta.com
odette.vella@gov.mt
Ms Vella is senior information officer, Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.