Lawyers also understand that certain risks are technically and structurally unavoidable. The user must be able to protect himself by behaving correctly, but at the same time he must be aware of the residual risk. For this reason, case law has given producers a duty to warn: The duty in this case is to further minimize the residual risk with the aid of operating instructions, warnings, symbols, training specifications etc. The principle here is that, wherever possible, a product should be designed to be safe and free from defects. The producer cannot therefore be content to overlook these options and simply refer to the hazards. The duty to warn refers to the residual risks that remain on a product even when every possibility has been exploited in its design and manufacture.
Definition of the producer’s duty to inform should always be based on the least informed group. The greater the extent of the potential consequential loss and the more concealed the danger, the more explicit the warnings must be. If the product harbors a health risk, warnings must be so explicit that the user deems the danger plausible. In such cases, general guidelines regarding correct behavior are not enough; the threatened consequences and health risks in the event of non-compliance must be described.
Indicating that the safety gap must be set correctly before using the machine and that this setting must be checked, is not enough. Appropriate warnings must make it clear that there is the threat of a serious hand injury if the safety gap is not set correctly.
There is no duty to inform where such information is evident to the general public or to specific user groups.
For example, it is evident and recognizable that a knife can cut.
The duty to warn also extends to obvious misuse of the product. However, the producer does not have to account for unreasonable, unforeseeable and improper use of his product.
Operating instructions should not only show the correct way to install or assemble the product, but must also provide separate warnings against incorrect hand movements that may be obvious and occur frequently.
By contrast, case law highlights that the producer can rely on a technically trained operator keeping to the dedicated specifications provided in the operating instructions. Thus, should a kneading machine operator attempt to open the lid seal by heating the modelling clay until excess pressure inside the machine removes the lid, this would be deemed “gross misuse”.
The warning against potential hazards arising from the product should be issued without embellishment at the point at which the user will expect to find it. It would not be right, therefore, to position information about potential product hazards in some hidden location within the operating manual.
The producer must also take care to ensure that the user of the product understands the operating instructions. So a significant factor initially is whether the user can actually read and which languages he understands. This immediately implies the question about the languages into which a manual’s safety guidelines should be translated. It goes without saying that the safety guidelines in an operating manual should always be translated into the language of the country in which the product will be sold. The producer cannot assume that the company responsible for international sales of a product in a particular country will also provide an adequate translation, including that of the relevant warnings, into the respective local language.
Definition of the producer’s duty to inform should always be based on the least informed group. The greater the extent of the potential consequential loss and the more concealed the danger, the more explicit the warnings must be. If the product harbors a health risk, warnings must be so explicit that the user deems the danger plausible. In such cases, general guidelines regarding correct behavior are not enough; the threatened consequences and health risks in the event of non-compliance must be described.
Indicating that the safety gap must be set correctly before using the machine and that this setting must be checked, is not enough. Appropriate warnings must make it clear that there is the threat of a serious hand injury if the safety gap is not set correctly.
There is no duty to inform where such information is evident to the general public or to specific user groups.
For example, it is evident and recognizable that a knife can cut.
The duty to warn also extends to obvious misuse of the product. However, the producer does not have to account for unreasonable, unforeseeable and improper use of his product.
Operating instructions should not only show the correct way to install or assemble the product, but must also provide separate warnings against incorrect hand movements that may be obvious and occur frequently.
By contrast, case law highlights that the producer can rely on a technically trained operator keeping to the dedicated specifications provided in the operating instructions. Thus, should a kneading machine operator attempt to open the lid seal by heating the modelling clay until excess pressure inside the machine removes the lid, this would be deemed “gross misuse”.
The warning against potential hazards arising from the product should be issued without embellishment at the point at which the user will expect to find it. It would not be right, therefore, to position information about potential product hazards in some hidden location within the operating manual.
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