Country:

Poland

Court:

District Court in Rzeszów (Sąd Okręgowy). The judgement of 18 April 2001, Rzeczpospolita 19 April 2001

Topics:

Joint and several liability of the importer and the seller for fault in failing to warn of a risk related to use of a product.

Articles:

N/a - before the implementation of the Directive.

Facts:

The claimant, a girl of six, suffered serious injury as a result of an unexpected opening of an airbag in her parents' Ford Mondeo. The car was parked and the keys were taken out of the ignition. The girl moved onto the front seat of the car and touched the lighter. The opening airbag hit her head and she was unconscious for 11 days following the accident. After a number of operations she still requires medical attention and psychotherapy (she is hemiplegic and has suffered mental injuries). The girl's parents sued the importer of Ford into Poland - Ford Distribution, and the Ford dealer. The claim was for pecuniary damages and monthly payments, as well as for non-pecuniary damages (the latter € 138900). The true cause of the accident was not established during the proceedings.

Legal questions:

1. Are the defendants (the seller and the importer) liable if the defect was due to the conduct of the manufacturer?

2. Are they liable for their own fault or for the fault of the manufacturer? Should they inform the buyer of the risk if the manufacturer had informed them of it beforehand?

3. Should there be liability in the light of the fact that, as the defendant importer pointed out, the cause of the injury was purely incidental?

Decision:

The court stressed that there should be no accidents involving exploding airbags - which belong to the safety equipment of a car. It was clear that Ford Motor Co (manufacturer) knew of the danger of explosion, as it had warned the dealers and service stations of the possibility of explosion in certain circumstances (for instance a strong electromagnetic field). The buyers were not warned of this possibility. The liability of both the seller and the importer of the car was based upon Article 415 of the Civil Code. This provision requires the existence of fault as a requisite of liability. It reads: "He who by his fault caused damage to another shall be bound to repair it." The court found the fault of the defendants in their failure to inform the buyer of the danger they were aware of. They were held jointly and severally liable. The damages to be paid to the victim for the injuries and any future harm that may occur in connection with the accident amounted to PLN 200,000 (€ 55,555). The incidental character of the cause of injury was held not to have any impact upon the issue of liability.

Comments:

Some commentators (Ewa Bagińska) see this judgement as being in line with the new strict liability regime, although not based upon it directly. The main reasons for such a contention are the facts that, first of all, the outcome of the case would probably be the same under the strict liability regime, and further, the importer is held liable (in Poland the liability of importers was established in the judgement of the Supreme Court of 26 March 1984 [1982] OSPiKA (Decisions of the Polish Courts and Arbitration Panels) 7/8)). It is difficult to agree with such a statement, as the obligation to show the fault of the defendants, not existing in the strict liability system, has caused significant inconvenience to the claimant. While it may be acknowledged that liability of importers usually has certain characteristic features of strict liability (the importer not being liable for his own actions, but rather for the negligence of the manufacturer, although the Polish doctrine of law (Łętowska) rather is of the opinion that the importer is liable for the own action of introduction into the Polish market of a dangerously defective product, and further the importer may not be able to invoke certain defences available to the producer, such as the development risk defence) in this judgement the liability was undoubtedly based on fault. A further criticism of the judgement can be put forward - it is remarkable indeed that the court found the fault of the defendants in their failure to warn of the danger. Is it then possible to draw the conclusion that, had they warned the buyers of the possibility of explosion of the airbag - the girl would remain without a remedy? The question on the limitation of liability by warnings arose after the judgement in the self-igniting television sets case. Looking at the English case of A v National Blood Authority it must be noticed that this problem is not only peculiar to Poland.