DENMARK Law and Practice Contributed by: Heidi Bloch, Rasmus Tommerup and Rasmus Estrup, Kennedys
queries posed by the parties. Pre-proceeding state - ments acquired by the parties are generally admis - sible, with the opposing party granted similar access post-commencement. Parties may also, with court approval and mutual agreement, secure their own expert statements (party-appointed experts) after proceedings have begun. 2.9 Burden of Proof in Product Liability Cases Under the Danish Product Liability Act, producers bear a strict liability for damage resulting from defects in their products. To obtain compensation for incurred damage, claimants must establish the existence of the inflicted damage, a defect and a causal link between the defect and the damage. Consequently, there is no requirement for the claimant to prove negligence or fault on the part of the producer. Under product liability principles established through case law, a presumption of negligence applies. Upon the claimant proving the existence of a defect, the burden of proof shifts to the producer to prove that the defect is not a result of their negligence. Both the Product Liability Act and case law-derived product liability principles impose a presumption of negligence on intermediaries. Consequently, the inter - mediary may be held liable for injury or damage result - ing from a defective product unless it can demonstrate lack of intentionality or negligence. Danish law does not have formal rules concerning the assessment of evidence by courts and the requisite level of proof. Therefore, in each instance, the court must assess the evidence presented and determine whether the claimant has met the burden of proof. Additionally, the court is not obligated to adhere to expert evidence. 2.10 Courts in Which Product Liability Claims Are Brought Product liability cases, irrespective of the disputed claim’s value, are adjudicated in Danish civil courts, including district courts, the Maritime and Commercial Court, High Courts, the Supreme Court and, if the par - ties have mutually agreed, in arbitration.
Generally, there are no specific procedural require - ments for such cases nor an upper threshold of dam - ages, and jury hearings are not available for product liability cases, as juries are exclusively involved in spe - cific criminal cases. 2.11 Appeal Mechanisms for Product Liability Claims With some exceptions, the two-tier principle enables all civil cases, including product liability cases, to be adjudicated by at least two courts in Denmark. If a district court or the Maritime and Commercial Court serves as the initial instance, its verdict can be appealed to the High Court without requiring special permission. Conversely, if the High Court acts as the first instance, its decision can be appealed to the Supreme Court. However, if a dispute is heard by the High Court as the second instance, an appeal to the Supreme Court requires third-instance leave of appeal from the Appeals Permission Board. 2.12 Defences to Product Liability Claims Various defences are available to producers in product liability cases. For instance, a producer may demon - strate that the product is not defective; in this con - text, a frequently used defence is expert evidence, including expert opinions on the producer’s safety and quality control of the product. The producer is exempt from liability if it can prove that the defect arises from the product’s compliance with mandatory public regulations. Additionally, a producer cannot be held liable if it can prove that, based on scientific and technical knowledge available at the time of circula - tion, the defect was undetectable. Furthermore, a pro - ducer is not liable if the defect arises after the product has been put into circulation. Lastly, evidence of the claimant’s contributory negligence or assumption of risk may absolve the producer of liability. 2.13 The Impact of Regulatory Compliance on Product Liability Claims If a product fails to meet the safety regulations or authorisation requirements specifically set for it, it may be deemed defective, as consumers are entitled to expect a certain level of safety – as mandated by rele - vant product legislation. Some products are, however, inherently associated with known adverse effects; for instance, tobacco is widely recognised for its harm -
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