Country:

Italy

Court:

Supreme Court of cassation, 3rd Civ. chamber, 29 May 2013, n. 13458

Topics:

Defect

Causal link

Non-consumer victim

Articles:

Articles 114 to 127 of the Consumer Code

Facts:

S.P., a surgeon, claimed to have suffered severe injuries as a result of the use of a product (a bipolar ultrasonic forceps, produced and marketed by Ethicon Endo Surgery Inc.) while performing an operation on 22 January 1999.

The Milan Court of first instance, in a judgment delivered on 22 December 2006, rejected the surgeon's claims for damages, highlighting in particular the uncertainty about the defectiveness of the ultrasonic forceps, as well as the lack of convincing evidence with regard to the causal link between the damages claimed by the plaintiff (paraesthesia in two fingers of his right hand) and the alleged defect in the product.

Dr. S.P. appealed the decision, reiterating his right to damages amounting to € 403,274.40. On 15 January 2009, the Milan Court of Appeal overturned the lower court's decision and entered a money judgment in favour of the plaintiff (€ 56,000.00 plus interests at the statutory default rate, as of 22 January 1999).

The Appellate Court held that the defect in the product could be deduced by way of a "chain of presumptions", specified as follows:

(1) - (a) the plaintiff is "an experienced surgeon"; (b) based on this, "an inappropriate use of the device is unlikely to have occurred"; (c) it follows that "a failure in the functioning of the device" is more probable than not;

(2) - (a) the symptoms of the disease materialised immediately after the use of the ultrasonic forceps; (b) such symptoms were located in the part of the body which had come in contact with the surgical instrument (the first two fingers of the right hand); (c) it follows that "a failure in the functioning of the device" is more probable than not, thus proving the causal link between that defect and the plaintiff's harm.

Legal questions:

Are damages suffered by non-consumers included in the scope of the PL Directive?

Can a product's defect be inferred from a "chain of presumptions"?

Decision:

- On the actual scope of application of the PL Directive (§ 4.2 of the judgment)

Protection of "experienced consumers" does not fall outside the scope of application of Directive 85/374/EEC on liability for defective products (implemented in Italy by D.P.R. 24 May 1988, n. 224, now merged into the Consumer Code - Legislative Decree 6 September 2005, n. 206, articles 114-127).

The Supreme Court noted that the Directive only deals with the manufacturer's liability - regardless of his/her fault - for damage derived from the "use" of "defective products". The kind of protection afforded by the Directive to "users" should be interpreted very broadly: of course, a user is a "natural person" (as is clearly demonstrated by the definition of damage provided by article 123 of the Consumer Code as the one 'caused by death or by personal injuries' [...]), but this does not entail that it must be a "consumer" or a non-professional user. Entitled to redress under the product liability regime are, therefore, all those who in any way have been exposed, albeit occasionally, to the risk posed by the defective product.

The fact that the product liability regulations now resides within the Consumer Code does not mean that the notion of "injured person" should be interpreted in a narrow sense, so as to exclude all natural persons acting or using the product for purposes related to their professional or business activity. Such a conclusion - in the Supreme Court's reasoning - is backed by the wording of the national law (articles 144—127 of the Italian Consumer Code), which never makes explicit reference to the "consumer", but only generally to the "injured person" (danneggiato).

- On the admissibility of "chain of presumptions" (§ 8.4. of the judgment)

Proof of a product's defectiveness can be based on rebuttable presumptions. However, in order for a secondary (known) fact to make full proof of a principal (unknown) fact - in our case, the product's defectiveness -, three requirements have to be met:

(1) seriousness (the existence of the unknown fact must be inferred with reasonable certainty from the known fact, even on probabilistic grounds)

(2) accuracy (requiring that the known fact, from which the probabilistic reasoning originates, and the logic path actually followed be not vague, but well defined in their historical reality),

(3) consistency (which implies that the evidence is based on a plurality of known facts all converging in unveiling the unknown fact).

The Court concluded that proof of defectiveness cannot be based on "double presumptions".

Comment:

- On the actual scope of application of the PL Directive: bringing it beyond consumers:

As regards the point raised concerning the application of the PL Directive to "users" and not only to "consumers", the Court does not seem to mean that the reach of the Directive should be expanded so as to grant protection to the so-called bystanders (as instead at first sight it might appear). Actually, as the following specifications show, the Supreme Court is setting the stage to affirm that the PL Directive liability regime may be applied to redress damages suffered by non-consumers.

The Court adds that even though the product liability regime is part of the Consumer Code, its scope should not be interpreted as restricted to consumers, all the more as it only makes reference to the "injured person", and not to consumers. This part of the judgment (§ 4) is far from having reached the ideal of a reliable disquisition on EU consumers law. The alleged ad litteram interpretation of the PL Directive (and related national legislation) is not flawless. The Court overlooked the fundamental requirements put forth by article 9(b) of the PL Directive (transplanted into article 123(b) of the domestic Consumer Code) in order for a damage to be relevant for the purpose of a finding of liability upon the producer of a defective good. The item of property must be: (i) ordinary destined to "private use or consumption" and (ii) actually "used by the injured person for his own private use or consumption". Such a wording in the law does not seem to warrant any space for dissonant readings.

Probably, the lack of accuracy in arguing this part of the judgment is due to the fact that the Court did not deem it decisive for the final adjudication of the case.

At any rate, one could always argue that human beings should be protected from the harm stemming from defective products regardless of the professional or personal use that they make of such products. Undoubtedly this is what the law states in other parts of the world. But this is not what the Community legislature intended by issuing the PL Directive.

The Directive's goal is not to protect human beings "as such" from damages caused by defective products; rather, it provides a "special" redress mechanism (presumption of the producer's fault?), alternative to the general rules of civil liability available under state law, only if "the item of property is of a type ordinarily intended for private use or consumption, and was used by the injured person for his own private use or consumption" (article 9(b)). The word "consumer" (as noted by the defendant's counsel in the case before the Italian Supreme Court) is repeatedly used in the preamble of Directive 85/374/EEC (e.g., in the very first line of the preamble it is clearly stated that the Directive aims to advance a uniform "degree of protection of the consumer against damage caused by a defective product to his health or property" - emphasis added). Unless stroke down as unconstitutional (for unduly and irrationally restricting the protection of human beings), such limitations will continue to be binding for national courts.

- On the limits to the inferential nature of the proof of the product's defectiveness.

According to the ordinary rules of evidence, presumptions must fulfil the requisites of seriousness, accuracy and consistency.

It follows that the so-called "praesumptio de praesumpto" (presumption from another presumption) is surely inadmissible. Trier of facts are not allowed to assume a presumption as a known fact, and from it derive another presumption (principle stated by, amongst other, Cass., 9 April 2002, n. 5045).

The Court of Appeal's decision was vacated exactly on such grounds.