Archive for the ‘safety’ Tag

Jurisdiction in product liability cases in Europe

Kainz/Pantherwerke ECJ C-45/13 of 16 January 2014: interpretation of article 5 (3) of Brussel I in product liability cases 

According to article 2 and article 5 (3) of Regulation no. 44/2001 (Brussel 1) in product liability cases the defendant may be sued in the place where he is domiciled as well as in which the event giving rise to liability occurs. It is settled case law that in case the place where the event occurs and the place where that event results in damage are not identical article 5(3) must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it (see also ECJEU C-189 Zuid Chemie [2009]  and C-170/12 Pinckney [2013] ) This means that the defendant may be sued, at the option of the claimant in the court of those places.

Usually it is clear what the place is where the damage occurs. There can however be a discussion about the place of the event giving rise to the damage. Is that the place where the manufacturer is established, the place where the product is put into circulation or the place where the product was acquired.

In the case of Kainz vs Pantherwerke the European Court of Justice was asked to clarify the concept of place of the event giving rise to damage in relation to product liability.

Mr Kainz who lives in Salzburg (Austria ) had an accident in Germany while biking on a bike manufactured by Panterwerke AG in Germany but purchased by a retailer in Austria. Pantherwerke AG has a registered office in Austria. According to Kainz he fell from his bike because the fork end detached itself from the fork wheel. He claimed the Pantherwerke AG was liable as manufacturer in respect to a manufacturing defect. Kainz issued proceedings before the court in Austria,

Pantherwerke AG contested the international jurisdiction of the Austrian Courts. The place of the event giving rise to the damage, in their view was located in Germany. The bicycle was manufactured in Germany and was brought into circulation in that State when it was dispatched from that company’s place of business.

Both in first instance as well as on appeal the courts dismissed the action brought by Kainz on the grounds of lack of international jurisdiction. The Obester Gerichtshof (Supreme Court) considered it necessary to ask the European Court of Justice to clarify the concept of the event giving rise to damage in product liability cases.

The European Court ruled, in line with the Zuid Chemie case,  that this is the place where the event which damaged the product took place. This is in principle the place where the product is manufactured. The courts in that place will also be in best position to rule on the finding that a product is defective.

This means that in cases where a manufacturer faces a claim of liability the place of the event giving rise to damage is the place where the product in question was manufactured. A defendant in a product liability case may thus be sued in the court where the damage took place, the place where the product was manufactured and the place where he is domiciled.

The verdict can be found here

WHO global plan on road safety 2011-2020

The UN Road Safety Collaboration has developed a Global Plan for the Decade of Action for Road Safety 2011-2020. The Plan provides an overall framework for activities which may take place in the context of the Decade.
The categories of activities are:
1. building road safety management capacity;
2. improving the safety of road infrastructure and broader transport networks;
3. further developing the safety of vehicles;
5. enhancing the behaviour of road users; and
6. improving post-crash care.
Indicators have been developed to measure progress in each of these areas. Governments, international agencies, civil society organizations, the private sector and other stakeholders are invited to make use of the Plan as a guiding document for the events and activities they will support as part of the Decade.

EU-OSHA teams up with the UN’s Decade of Action on Road Safety to reduce risks to drivers

People working in the road transport sector face many more risks than just the danger of having a collision – that is the message of the European Agency for Safety and Health at Work (EU-OSHA), which has launched a new website to help keep drivers safe.
http://osha.europa.eu/en/sector/road_transport

Accident prevention information of OSHA

As well as the cost in terms of lost lives and suffering to workers and their families, accidents affect business and society as a whole. Fewer accidents means less sick leave, which results in lower costs and less disruption to the production process. It also saves employers the expense of recruiting and training new staff, and can cut the cost of early retirement and insurance pay-outs.

Slips, trips and falls are the largest cause of accidents in all sectors from heavy manufacturing to office work. Other hazards include falling objects, thermal and chemical burns, fires and explosions, dangerous substances and stress. To prevent accidents occurring in the workplace, employers should establish a safety management system that incorporates risk assessment and monitoring procedures.

Pain and suffering awards in the Netherlands

If you have had an accident in the Netherlands and suffered injuries and provided that there is a liable party from which you can claim damages  under Dutch law one of the questions you will ask yourself could be: Am I entitled to an award for pain and suffering?

According to Dutch law (article 6:95 in combination with article 6:106 BW)  there is a limited right to non-pecuniary damages.  The main source for these damages is article 6:106 Dutch Civil Code. According to article 6:97 Dutch Civil Code the judge is entitled to quantify the total amount of damages suffered .

Where an injured person suffers mentally from the consequences of physical injuries sustained, there are no specific requirements about the degree of seriousness of the mental suffering. If a victim has only suffered psychiatric injury, the threshold is that there is a recognizable psychiatric illness. Annoyance of greater or lesser mental discomfort will not suffice.
There is a wide margin of appreciation deciding on the amount of non-pecuniary damages.  The victim doesn’t need to specify to what extent he suffered non-pecuniary damages nor is he obliged to demand a specific amount. It is however wise to state all relevant facts and circumstances.
The Dutch Supreme Court has set out some basic rules. First of all a judge has to look at all circumstances of a particular case .  More specifically a judge should consider the injuries and the consequences of the injuries on the victims life. The injuries and disabilities are particularly relevant, as well as the age at which the accident occurred. As a rule the more severe the injuries and the younger the victim, the higher the damages awarded for pain and suffering.
Furthermore the judge  has to pay attention to case law in similar cases. This process is simplified by the collection of abstracts in a special edition in the review of traffic law ‘ Verkeersrecht ‘, the ‘ Smartengeldbundel ‘  which provides index-linked awards.  Judges can also refer to awards for non-pecuniary damages in other countries, albeit that the award can no be solely determined on that basis. A judge may also look at the nature of the liability.  There is no  absolute limit on the amount of non-pecuniary damages that can be awarded. There are no caps set by law or baremes. Awards are among the lowest in Europe.

An important thing to know is that a victim should explicitly claim an award for pain and suffering. If he or she fails to do so and dies the heirs can’t claim these damages.

If you need further information about Dutch law on negligence and damages you can contact Antoinette Collignon at antoinette.collignon@legaltree.nl

Amsterdam, 6 March 2011

copyright Antoinette Collignon

WHO | 10 facts on global road safety

About 1.3 million people die each year on the world’s roads and between 20 and 50 million sustain non-fatal injuries. Road traffic injuries are the leading cause of death among young people, aged between 15 and 44.

This fact file presents data from the Global status report on road safety. This is the first broad assessment of the road safety situation in 178 countries. The results show that road traffic injuries remain an important public health problem, particularly for low-income and middle-income countries, and that significantly more action is needed to make the world’s roads safer.