How is a ‘product defect’ defined in your jurisdiction?
Pursuant to Article 4 of the Product Liability Act (SR 221.112.944), a product is deemed to be defective if it does not meet safety expectations taking into account all circumstances, particularly:
- how the product is presented;
- its reasonable foreseeable use; and
- the timing of its market placement.
However, a product is not deemed defective only because an improved product was placed on the market at a later date. The undefined term ‘justified safety expectations’ is determined in view of the product knowledge of the average user in Switzerland. According to legal doctrine, Article 3 of the Product Safety Act (SR 930.111), which defines the regulatory requirements for the safety of a product, further clarifies Article 4 of the Product Liability Act. Pursuant to Paragraphs 3 and 4 of the article, the following should be considered:
- the product's lifespan;
- the product’s foreseeable interaction with other products;
- the user;
- the labelling and get-up;
- the packaging and instructions for the assembly, installation and maintenance of the product;
- warning and safety notices;
- the user manual;
- information about disposal; and
- all other information ensuring the safety of the product.
Therefore, a product can be defective if it does not meet the safety expectations pursuant to Article 3 of the Product Safety Act.
Causation and burden of proof
How is causation of loss or damage established in relation to product liability claims and where does the burden of proof lie? Can this burden be shifted in any way?
Causation requires that there is a natural and adequate causal relation between the product defect and the damage. Natural causation is given if the defectiveness of the product is a necessary condition for the damage. However, a producer is liable only for adequately caused damage by a defective product. In other words, a producer is liable only if the product defect is deemed capable of causing the damage which occurs in the ordinary course of events and according to the general use of the product. Generally, the injured party must establish that the requirements for liability are met in a detailed manner. However, the injured party may face considerable difficulty in adducing evidence in cases where the defective product has been destroyed or disposed of. In such cases, Swiss courts apply a less strict standard of evidence.
Legal bases for claims
On what legal bases can a product liability claim be brought?
In Switzerland, product liability claims can be brought under the following legal bases:
- An injured party may invoke Article 1 of the Product Liability Act (SR 221.112.944) which holds that the producer is liable for damage if a defective product causes the death or injury of a person or damage or destruction of an object which was normally intended for private use and which was used for private purposes by the injured party. Under the act, the producer is not liable for the defects of the product in question.
- An injured party may bring forward product liability claims based on general bases of liability such as contract or tort law. If there is a contractual relationship between the producer and the injured party (eg, a sales or rental contract), the producer is liable for any damage arising from the defective contractual object when they are at fault for the defect. If there is no contractual relationship between the producer and the injured party, the latter may bring forward product liability claims based on the producer's general fault-based liability pursuant to Article 41 of the Swiss Code of Obligations (SR 220) or based on the liability of the principal (Article 55 of the code).
- Product liability claims may also be brought forward under federal or cantonal law (eg, Article 27 of the Act on Explosive Substances).
Can a defendant be held criminally liable for defective products?
A defendant can be held criminally liable for defective products particularly if the product defect constitutes a safety or health risk. The pertinent criminal liability provisions are regulated by sector. For example, Article 86 of the Therapeutic Act (812.21) states that any person who wilfully endangers human health by placing on the market medicinal products that do not comply with the requirements of the act will be penalised with imprisonment or a fine.
At a subsidiary, overall product level, the Product Safety Act (SR 930.111) states that any person who deliberately places a product on the market that more than slightly endangers the safety and health of the user and third parties during normal or reasonable foreseeable use and which does not meet the fundamental safety and health requirements set forth by legislation or, if no such requirements are established, that do not correspond to the state of the science and technology, will be liable to imprisonment of up to one year or a fine (the maximum fine is Sfr1.08 million, Article 34 of the Swiss Criminal Code (CC, SR 311.0)). In case of negligence, only a fine is imposed.
Which parties can be held liable for defective products?
Pursuant to Article 1 of the Product Liability Act (SR 221.112.944), the producer is liable for damage arising from a defective product. Pursuant to Article 2 of the act, the person who made the final product, a basic substance or a partial product, or who imports a product for the purpose of selling, leasing, hire-purchase or any other form of distribution in the course of its business, or who is claiming to be a manufacturer by putting its name, trademark or other identifying mark on the product is deemed to be a ‘producer’ and can be held liable.
Under civil liability, any person providing another person with a defective product can be held liable for damage arising from such a product provided that there is causation between the defect and the damage and provided that fault is established. Further, the person who is responsible for the product defect can be subject to criminal liability. This is either the responsible natural person within the producer's organisation or the producer's company itself if the offence is not attributable to any particular natural person within the company.
Limitation of liability
Can liability be excluded or mitigated in any way?
For claims brought under the Product Liability Act (SR 221.112.944) a producer cannot validly exclude or mitigate its liability for damage arising from a defective product towards the injured party. Article 8 of the act states that agreements restricting or excluding liability towards the injured party are deemed void.
However, liability disclaimers outside the scope of the Product Liability Act are permitted. Thus, a producer can validly exclude its liability for damage to commercially used objects arising from a defective product, as the act does not cover damage to objects in commercial use. The producer of a component of the final product can also exclude its liability towards the producer of the final product because the act can be invoked only by the injured party.
Under contract or tort law, a producer can validly exclude or mitigate its liability for damage arising from a defective product, except for wilfulness or gross negligence (Article 100, Paragraph 1 of the Swiss Code of Obligations (SR 220)).
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