An Uncertain Future

Inconsistent application†of product liability laws†in courts across the EU†is causing headaches for†product manufacturers.†Giles Kavanagh of†Barlow Lyde &Gilbert†outlines the issues.

The European Commission instructed the law firm Lovells to†report into the operation of EC Council Directive 85/374 (the†Directive) in December 2001. England was the first country†to implement the Directive into domestic law in the form of†the Consumer Protection Act 1987. The remaining EU†member countries followed suit.

The purpose of the Directive was to create uniformity across†the EU with respect to liability for defective products. Under†the Directive manufacturers are liable for death, personal†injury or damage to property (other than the product itself)†that arises from a defect in one of their products. There is a†defect in a product if its safety is not such as persons generally†are entitled to expect. The burden of proof regarding a†defective product lies with the claimant/consumer.

Those who drafted the Directive wanted to strike a balance†between ensuring the advantages of the single market and†facilitating a wide range of products from all corners of the†EU, while at the same time providing a framework promoting†safe products by enabling consumers to make claims for†damage caused by defective products. Thus liability is strict†but not absolute. There are a limited number of defences†provided to the manufacturer of a defective product, most†notably the 'state of the art'/'development risks' defence. In†essence, that defence provides that if the state of scientific and†technical knowledge at the time when the product was put†into circulation was not such that the producer could have†discovered the defect then the producer is not liable.

WHAT'S HAPPENING IN THE EU?

In its report, published in June 2003, Lovells recommended†no substantial change to the Directive, and the Commission†manufacturers, whose products find their way into the various†different jurisdictions within the EU.

Importantly, there is a lack of uniformity among the courts of†different EU jurisdictions in terms of what a claimant must†prove in order to establish that a product is defective.†In France, for example, the Tribunal de Grande Instance of†Aix en Provence gave judgment in October 2001 in a case†where a claimant had been injured when a glass window in a†fireplace exploded. The precise mechanism or cause of failure†was unknown. In finding for the claimant, the Tribunal†found...