Country:

Belgium

Court :

Court of First Instance of Namur, 6th civil division / Tribunal de première instance de Namur, 6ème chambre civile

Parties: General Accident and Live Assurance P.L.C vs SA Tabryn & Interhornos Subal.

Date: 14 November 1997

Topics:

Burden of the proof of the defect - fault of the victim - liability of producer

Articles:

Art. 3, 7 and 10 of the Act of 25 February 1991 (Product Liability Act)

Art. 1382 of the civil code

Facts:

An employee working in a bakery has had the fingers of his right hand cut by a machine. This machine was manufactured by a Spanish firm (Interhornos Subal) and supplied by a Belgian firm (S.A. Tabruyn). An emergency stop button has been installed next to the machine but the dangerous part was not protected by a safety grating. The names of Interhornos Subal and S.A.Tabruyn were sticked on the machine.

The baker's insurer has awarded damages to the employee and brought an action against the manufacturer and the supplier of the machine in order to be paid back.

Legal questions:

1) Are both the manufacturer and the supplier liable for a defective product ?

2) Is a lack of safety necessarily a defect?

Decision:

The manufacturer and the supplier are not held liable for the damage caused by reason of the fault of the employee, consisting in an imprudent conduct.

Comments:

The claimant has brought his action not only against the producer but also against the supplier, considering this last one as "producer" within the meaning of article 3 of the Act of 25 February 1991 (implementation of article 3 § 1 of the Council Directive nº 85/374).

According to this article the "producer", apart from the manufacturer himself, is defined as any one who "presents himself as manufacturer or producer by affixing on the product his name, trademark or other distinguish feature". This was so the case as the company Interhornos Subal (supplier) has its name stuck on the machine.

However, the judges interpreted article 3 as a subsidiary provision only applicable to a apparent producer when the real producer cannot be easily identified. As the name of the real producer (Interhornos Subal) also appeared on the machine, the judges exempted the company Tabruyn from any liability for that reason.

The second point is the safety of the machine. The judges held that the machine has no defect despite of the absence of a safety grating covering the dangerous part of machine (a funnel). As this one was not easily accessible, the employee must have used a chair or a stool to be able to put his hand into the funnel. The judges infers from these facts that the employee has committed a fault by putting his hand in the funnel, taking into account the fact that this employee was a experienced employee.

The judges did not take into consideration the claim based on article 1382 of the civil code (liability based in a fault) as no fault can be imputed to the producer.

Click here to download the original document