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posted 8 years ago
By: Savvas Savvides,
Partner of Michael Kyprianou & Co LLC
If you have been injured or suffered damage
due to a product that you have used you may be entitled to a defective product
liability claim. In evaluating as to whether
you have a valid defective products liability claim and in preparation of your
Case, it is helpful to be familiar with the requirements of the law so that you
are successful in your application.
A consumer has a prima facie claim
under the Defective Products Law if it can be proven that the product was
defective on purchase and caused the stated damages. The full definitions of ‘damage’ and of a
‘defective product’ are provided in the Defective Products Law.
The Safety Law obliges producers to
only place products on the market which under normal conditions of use do not
contain any danger for the health and safety of consumers. Breach of this
obligation is a criminal offence. A producer or a distributor/supplier
who is found guilty for breach of his statutory obligations under this Law may
be imprisoned for a period of upto two years or be fined not exceeding the sum
of €8,543.94 (euros), or both.
The burden of proof in a product
liability claim rests with the person claiming to be injured. It has to be
proved that the damage suffered based on a balance of probabilities was caused
by the defendant’s defective product.
In
claims for Breach of Contract, the injured party must prove, (centred on a
balance of probabilities), that the alleged breach (i.e. the supply of a
defective product in violation of the express or implied terms of the Contract)
caused the damage suffered.
In
negligence cases, causation is generally proven by the claimant on a balance of
probabilities that the damage suffered would not have occurred if not caused by
the defendant’s negligence. The damage
suffered must be reasonably foreseeable and not a remote incident.
Under
the Defective Products Law, it is sufficient to show that the damage suffered
was caused entirely or partly by the defective product.
It is a defense for a manufacturer to prove:
·
that he did not manufacture the product for sale or distribution for
economic purposes nor was the product distributed in the course of the
manufacturers business.
·
that the product was not put into circulation by the manufacturer.
·
that the component manufactured by a producer of part of a design was
not the cause of the defect, which was in fact caused by the overall design.
·
that the defect is caused by compliance with regulatory provisions.
·
that the defect came into existence after being put into circulation.
·
that according to the state of scientific and technical knowledge at the
time of circulation of the product no defect would have been discovered.
The burden of proof in these kinds of defenses rests with the
manufacturer.
Class actions/group actions
are common in product liability claims when there is more than one person
affected by the defective products. The Civil Procedure Rules in Cyprus permits,
with the Court’s assent, a group action to be held. Before the Court grants the relevant authorisation, a Power
of Attorney is signed by the persons to be represented and certified by the
Registrar or Certifying Officer empowering the person or persons who are to sue
or be sued on their behalf to represent them in the cause or matter specified
must also be lodged alongside the main action.
The Defective Product Caused Your Injury
It is not
enough to argue that you were injured while using the defective product. You
must explicitly demonstrate that your injury was caused by the defective
product. You need to be aware however
that you must have been using the product in a manner that the manufacturer
intended consumers to have it used.
For
example, if you use your new microwave to dry your cat (as happened in the
United States in which the consumer was suing the microwave manufacturer with
the reason that the instruction manual did not make a reference to animals not
being allowed in the microwave) and it explodes, you may not be entitled to a
claim. If an ordinary consumer would not
use the product for this type of purpose then the manufacturer is not obligated
to make special reference of this in the instruction manual.
However,
this does not signify that the manner in which you were using the product at
the time of injury must conform exactly to the manufacturer’s specifications.
If a manufacturer could reasonably expect an ordinary consumer to use the
product in the manner in which you had used it, you could probably meet the
requirement.
For
example, if you purchased a chainsaw that is marketed by the manufacturer as ‘the
ultimate tool for cutting hedges’ and while using it in your garden the chain
snaps off and hits your eye and blinds you, you are likely to have a valid
claim even if you had not been actually cutting the hedge when you were
injured.
A claim must be brought within 3 years of the date that the claimant was
aware (or ought to have reasonably known) that the damage had occurred.
The content of this article is intended to provide a general guide to
the subject matter. Specialist advice should be sought on your specific
circumstances. For further information, please contact Mr Savvas Savvides
at savvides@kyprianou.com.cy
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