Country:

Poland

Court:

The Supreme Court, judgement of 28 June 1972, OSN (Judgements of the Supreme Court) 1972/228, II CR 218/72.

Topics:

Joint and several liability of the seller and the importer for damage caused by insufficient warnings of the danger related to using a product, as well as for a failure to supply the buyer with the protective equipment (lack of such equipment in the market).

Articles:

N/a - before the implementation of the Directive.

Facts:

The claimants were the wife and daughters of a professional farmer renting a farm from the state. The farmer bought a chemical spray for the purpose of preparation of chambers for the future storage of pickled cucumbers and cabbage. In the shop he and the sales assistant read the instructions on the packaging. They contained warnings of the possibility of poisoning and advice that in closed chambers the preparation ought to be conducted with the use of a gas mask protecting from benzol. While using the spray for the first time the claimant was poisoned and taken to the hospital. When he left the hospital he attempted using the spray again, this time using a gas mask, although not one protecting from benzol (the latter type of masks were unavailable on the market at the time), and his son was with him in case of another poisoning. Both of them died. The claimants demanded compensation.

Legal questions:

1. Should the seller be liable if the buyer worked for him previously and was trained in the field of poisonous qualities of some chemicals?

2. Should the seller and the producer be liable if the buyer was warned about the danger of poisoning as a result of using the spray and he did not follow the instructions - in particular did not use the proper gas mask?

3. Should the seller and the producer be obliged to supply the protective equipment to the buyer?

Decision:

The professional knowledge of the victim did not affect the outcome of the case, as the victim was unaware of the qualities of the particular chemical he was dealing with. The liability of the seller and the manufacturer was based on Article 415 of the Civil Code. The seller and the producer were jointly and severally liable to the buyer of the spray for insufficient warning of the danger following its use. They were also liable for not supplying the buyer with the proper protective equipment required if such equipment was not available on the market. The Supreme Court stressed that the obligation of the producer of a particularly dangerous product to inform the buyers of the danger following the use of this product was particularly stringent. Especially if the use of the product could lead to death the warnings ought to be very precise - referring to the danger of death and not merely to the danger of poisoning. Further, if the protective equipment needed for safe use of the product was unavailable on the market, the producer ought to manufacture it or in some other way supply it. The seller participated in this conduct of the manufacturer - hence his liability.

Comments:

In this judgement the Supreme Court provided a remedy to a professional farmer who probably would not be treated as a consumer in the traditional meaning of this term. Some professional experience of the buyer in the area of dangerous chemicals did not suffice to exempt the defendants from liability. The obligation to supply protective equipment is a very interesting phenomenon which accommodates the peculiar characteristics of Socialist markets, but also indicates the court's attempt to deal with those peculiar characteristics so as to assist the victims of defective products.