The area of products liability is experiencing a growing interest, partly because it is a strict liability and partly because there is an evolving awareness of the possibility to get economically compensated when a product suffers from a defect and has dangerous characteristics. The area of products liability is interesting as it lies between the contractual and the delictual liability which demands deep knowledge within both contractual relations and the regulation of delictual liability.
Within the Danish jurisdiction products liability is regulated by two sets of rules. Regarding the consumer area (damage to consumer goods and personal injury) the regulation consists of the Danish implementation of the Products Liability Directive from 1985, implemented in the Act of Products Liability, and in relation to damage to business goods the products liability is regulated by court decisions (det retspraksis udviklede produktansvar).
In Denmark businesses are not obligated to take out an insurance covering their potential products liability, but most companies have an insurance covering this risk or part of this risk.
This fact implies that most of the product liability matters that we deal with at Bergenser Law Firm also often involves coverage questions, especially in relation to the basic distinction between products liability and damage to the product itself, which distinction also gives rise to conflicts regarding the liability assessment.
An important competence at Bergenser Law Firm which oftentimes is in focus is an insight into and understanding for the terms of sales and delivery or byer’s terms for the producing company or the contractual parties in the chain of revenue, as there will oftentimes be some kind of limitation of liability which may influence on both the liability assessment and questions of insurance coverage.
It is also an important part of our knowledge base to evaluate whether the trading terms between contractual has been agreed between contractual parties and to be able to make the right interpretations of the terms, and not rarely the issue whether the terms in whole or clauses of limitations can be declared void.
Oftentimes the contractual parties within certain lines of businesses use different kinds of agreed documents such as Orgalime, NL01 etc. with which terms we have substantial experience at Bergenser Law Firm.
As a part of this competence Bergenser Law Firm has given advisory to a large number of companies with their risk management relations regarding their contractual relations, terms of sales and delivery and buyer’s terms which is a specialized competence area as it demands an ability to get a full insight in and understanding for both the company’s products and trading relations, and furthermore an understanding of the link there must be to the company’s insurance coverage which in all gives a full picture of the company’s risk-management-system.
Bergenser Law Firm has carried out a large number of products liability matters at the Danish courts and at national and international arbitrational forums. We also have a vast experience with large claims and large series of claims, involving a large number of claims against a producer of a trading company, including law suits carried out according to the group class actions according to the Danish Administration of Justice Act.
Furthermore Bergenser Law Firm has experience with the relations concerning the definition of being a producer, the understanding of the definition of a product according to the definitions in the Act on Products Liability. Furthermore Bergenser Law Firm is contributing to the development in the later years of the possibility for a party to aim a claim directly at a party to which the claimant does not have a contractual relation (direct claims).
Bergenser Law Firm has an extensive experience with claims relating to the different types of recall and/or contaminated products insurance terms and the certain problems that relate to these types of claims which most often are of an international nature as most companies distribute their products outside the Danish borders. Bergenser Law Firm has a vast experience with these oftentimes business critical situations and the challenges connected to assessing whether at all there is a recall situation, summing up the claim and controlling the very hectical and complex process of recalling a product from a world wide market, balancing the situation according to the insurance terms and the company’s business interests.