Country:

Belgium

Court:

Supreme Court 1st civil division / Cour de cassation 1ere chambre civile

Parties: Etablissement Leone vs R. J., C. P. and R. J1.

Date: 26 September 2003

Topics:

Notion of defective product. Fault of the injured person.

Articles:

Art.5 of the Act of 25th February 1991 (Product Liability Act)

Facts:

The child was injured when attempting to take off his dental facemask. The facebow of the dental facemask damaged one of his eyes. This accident could have been avoided if the child had untied the rubber band before taking off the dental facemask. The facebow and the facemask were made by two different manufacturers.

Legal questions:

1) To which extent a product can be considered as defective?

2) Is the manufacturer of a component liable for the entire damage caused by the defective product?

Decision:

The Supreme Court approves the Court of appeal for having considered the facebow of the dental facemask as defective because "the use of rubber bands (to fasten the facebow) presented danger for children" and "the use of the product could cause a reasonably predicable damage as it was intended in particular to children who are usually not able to estimate the risks of use." Moreover, the Supreme Court decided that the carelessness of the children was not exempting the facebow manufacturer from its liability "as he could not have ignored the risk presented by this device".

Comments:

The Court of appeal of Liege and the Supreme Court (before which the judgment of the Court of appeal was challenged) did not contest that:

- the use of the dental facemask was recommended by the University of Liege,

- the dentist carefully fitted the facemask and gave the appropriate advices to the child and his parents,

- the facemask complies with the Council directive n° 93/42 on medical devices.

The product could so have been considered as enough safe but his is not the opinion of the Supreme Court which confirmed the liability of the producer on the ground that "the product did not provide the safety which a person is entitled to expect" (art.5 Product Liability Act). However the liability has been limited to half of the damages, using the possibility given to the judges by article 10 § 2 of the Product Liability Act to take into account the fault of the child (according to the article 10 § 2 the liability "may be reduced of excluded when the damage is jointly caused by a defect in the product and by the fault of the injured person").

In this case, only the producer of the component was sued and condemned. The decision of the Supreme Court does not clearly specify if it considers the manufacturer of the component as the only liable person or if the liability can be shared between this one and the producer of the entire product. It would so have been interesting to know the apportionment of liability between the manufacturer of the component and the producer of the whole product, if this one had been involved in the trial.

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