Consumer Affairs Act (Cap. 378), Part IX, Liability for Defective Products (Directive 85/374/EEC)

Article 56 defines a product as any movable, and includes any movable incorporated into another product or into an immovable, electricity, gas and primary agricultural products. Article 56 defines the producer to include the manufacturer of a finished or processed product, the manufacturer of a component part and the producer of any raw material.

Article 56 also treats as the producer any person who presents himself as the producer by putting his name, trade mark or other distinguishing feature on the product. Article 56 also treats as the producer any person who imports into an EEA State, for sale, hire, leasing or any other form of distribution, a product manufactured or produced outside a Member State. Article 57 makes the producer liable for the damage caused wholly or partly by a defect in his product.

Article 58 gives the injured party the onus of proving the damage, the defect and the causal relationship between the defect and the damage, and not the onus of proving the fault of the producer.

Article 59(1) treats the supplier of a product as the producer if the producer, or for an imported product the importer, cannot be identified and the supplier fails, within thirty days of the injured party's request, to give the identity and full address of that person or of the person who supplied the supplier. Article 59(2) requires the supplier's request to be in writing and sent by registered mail or official letter to the supplier's place of trade or business.

Article 59(3) puts on the supplier the burden of proving that it gave the injured party the information required. Article 60(1) makes a product defective if it fails to provide the safety which a person is entitled to expect, taking all circumstances into account, including its presentation and marketing, the use it could reasonably be expected to be put to, and the time when it was put into circulation.

Article 60(2) provides that a product is not considered defective only because a better product is subsequently put into circulation. Article 60(3) makes a product defective if it does not provide for the safety which is usually provided for by other models of the same type.

Article 61(a) and (b) allow damages for death or personal injury, and for loss of, damage to or destruction of property other than the defective product itself, having a value of at least five hundred euro or such other value as the Minister may prescribe. Article 61 limits the property to an item of a type ordinarily intended for private use or consumption that the injured party used mainly for his own private use or consumption.

Article 62(a) frees the producer who proves that he did not put the product into circulation. Article 62(b) frees the producer who proves that, having regard to the circumstances, it is probable that the defect did not exist when he put the product into circulation or came into being afterwards.

Article 62(c) frees the producer who proves that the product was neither manufactured by him for sale or for any form of distribution for an economic purpose nor manufactured or distributed by him in the course of his business or trade. Article 62(d) frees the producer who proves that the defect is due to compliance with a mandatory requirement imposed by law or by a public authority.

Article 62(e) frees the producer who proves that the state of scientific and technical knowledge when he put the product into circulation was not such as to enable the existence of the defect to be discovered. Article 62(f) frees the manufacturer of a component or the producer of a raw material who proves that the defect is attributable to the design of the product in which it was fitted or to the instruction given by the manufacturer of that product.

Article 63 lets the court order that a referee's fees be provisionally paid or deposited by the producer if there is prima facie evidence that the damage was caused by a defect in the product. Article 64 makes two or more persons liable for the same damage jointly and severally. Article 65 applies article 1051 of the Civil Code where the damage is caused by a defect in the product and by the fault of the injured person or of a person for whom he is responsible.

Article 66 provides that the liability of the producer is not reduced when the damage is caused both by a defect in the product and by the act or omission of a third party. Article 67(1) bars the action for damages three years from the day the injured party became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.

Article 67(2) extinguishes the action ten years after the producer put the actual product into circulation, unless the injured party has meanwhile instituted legal proceedings against the producer. Article 67(4) puts on the producer the burden of proving when the actual product was put into circulation. Article 68 provides that the liability of a producer may not be limited or excluded by any term of contract, by any notice or in any other manner.

Article 69 provides that Part IX does not exclude or limit any rights or remedies available to the injured person under the Civil Code or any other law. Article 70 excludes injury or damage arising from nuclear accidents which are governed by an international agreement to which Malta is a party. Article 71 applies Part IX to products which are put into circulation in any Member State as from 1 May 2004.

Article 71A states that the purpose of Part IX is to implement Council Directive 85/374/EEC of 25 July 1985. Article 71A also provides that Part IX is to be applied and interpreted accordingly. Legal Notice 46 of 2003 brought articles 56 to 71 of the Consumer Affairs Act into force on 28 January 2003.