Module 17 2024

04/12/2024

Recoverable Losses

Any injured person can sue

No recovery for damage to commercial property, but no min for prop damage

No recovery for pure economic loss (but see 2015 CJEU cases & revised EU PLD)

Claimant must have suffered damage (Art.9) • Death / personal injuries (incl cost of treatment etc) • Damage to / destruction of physical property (excluding the defective product itself) provided the item of property: • Is of a type ordinarily intended for private use or consumption, and

• Was used by the injured person mainly for his own private use or consumption • Revised EU PLD: compensates loss, or corruption, of non-professional use data

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Defences to strict liability claims

In practice, companies aim to take defective products out of circulation to mitigate the risk. Most contested claims involve denial of any ‘defect’, reliance on warnings or disputing the causal effect of any defect that existed.

True legal defences

Exclusion Clauses

Defect attributable to compliance with mandatory law

Liability to an injured person cannot be limited or excluded by contact term or notices

Defendant not a supplier

Defect not present when put into circulation

State of scientific and technical knowledge not such that producers might be expected to discover defect

Component product incorporated in a subsequent defective product

Ten-year, long-stop limitation period (new EU PLD extends to 25 years for latent injuries)

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