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Court:

Trib. Roma 4 december 2003, in Danno e Responsabilità, 2004, 527.

Topics:

Defect

Reasonably foreseeable use of product

Non-material damage

Articles:

Art. 6 al. 1 sub. b

Art. 9.

Facts:

The consumer lost control of his Nissan Primera 2000 on a bend. Because of the accident his younger son died and the driver, his wife and his other son were injured. The consumer claimed compensation from the car manufacturer arguing that the brake system was defective. As a presumptive proof of this defect the consumer showed a letter from the manufacturer, received some months before the accident, calling all customers to check the brake system of their Nissans. The manufacturer responded that the letter had been written to improve the quality of a product which was not defective.

Legal Questions:

Was the product defective? Did the claimant use the product in a reasonably foreseeable way?

Decision:

The Tribunal held the manufacturer liable basing its decision on the expert's opinion which asserted that the product was presumably defective considering the circumstances of the accident. Therefore the Tribunal ordered the manufacturer to pay 100,000 EUR to each parent and 40,000 EUR to the surviving son for the non-material damage due to the death of the younger son and to compensate for their own physical damages.

Comments:

The recoverability of non-material damage is no longer discussed following a recent decision of the Corte di Cassazione which held that non-material damage also has to be compensated for in strict liability cases because there is a legal presumption of fault, even if not investigated by the Court (C. Cass. 12 may 2003 n. 7282, in Resp. Civ. e prev., 2003, pag. 676).

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