Country:

Poland

Court:

The Supreme Court, the Judgement of 4 December 1981, OSPiKA 1983, item 55, IV CR 433/81.

Topics:

Liability of the manufacturer for damage caused by self-ignition of a television set (manufacturing fault) - Liability for failure to warn the users of television sets of the danger of the ignition known to the manufacturer from reported accidents (observation fault) - Insufficient defence in claiming compliance with the existing safety norms - Anonymous fault concept.

Articles:

N/a - before the implementation of the Directive.

Facts:

The television set belonging to the claimant, switched off and disconnected from the mains supply, ignited. The furniture and the carpet in the claimant's apartment were destroyed. It was confirmed that the materials used for isolating purposes inside the set were poor quality replacement materials and they lost their isolating qualities after 2 or 3 years of using the set. The manufacturer was aware that such accidents were taking place, but did not warn the users of the television sets of the danger; neither did he withdraw the sets from the market or stopped producing them.

Legal questions:

1. Is a television set which ignites after a few years' use defective?

2. Should the manufacturer be liable for fault in manufacture, the fault in observation, or both?

3. Can it be a valid defence for the manufacturer to claim that he complied with the safety requirements set by the Polish Norm, and that the distribution of the TV sets was authorised by the proper authorities?

Decision:

The court very carefully considered the reasons for ignition, and, after hearing the expert report, concluded that it could not have been caused by dust or any other external factors. The expert concluded that the isolating material used in the set was of a very poor quality and it was not uncommon for such TV sets to ignite after 2 - 3 years of use. The isolating material simply evaporated during this time. Such TV sets were held to be defective.

The manufacturer was held liable for a fault in manufacture and also for an observation fault (Article 415 of the Civil Code - general tortuous liability provision based on fault - was the legal basis of the decision). The Court held that the introduction into circulation of a television set capable of igniting after a few years of use was not only a tort, but also an offence. Another aspect of the fault of the producer was his knowledge of the danger of ignition (reported accidents) and failure to warn the users or to stop producing the television sets using similar materials.

Although the court expressed doubts whether producing a TV set capable of igniting after some time did comply with the Polish Norm, compliance with the existing safety norms and authorisation by the authorities was held insufficient defence for the producer nevertheless, especially in the light of the producer's knowledge of many previous accidents and his failure to react.

Comments:

In this judgement the concept of the anonymous fault of the producer was used. Thus, according to the concept which was widely considered as aiming at the objectivisation of liability, the victim did not have to show a particular person within the defendant company who caused the damage. It was sufficient to demonstrate some inconsistencies within the defendant's activity.

Some commentators expressed doubts as to adequacy of this judgement which implied fault from failure to inform the users of the danger. The question arose whether in case of a warning being issued the defendant would be exonerated from liability. Żuławska who wrote the commentary of the judgement claimed that such warnings could only then exonerate the producer from liability if: 1. the danger was inherent in the product (knives for instance), and 2. the consumer was actually able to avert the danger thanks to the warning. (On this issue see also the inflating airbag case, the chemical spray case, and the chemical mousse case).