UK: An Uncertain Future

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.

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 that there was no necessity to prove the precise cause of the accident in order to succeed in establishing that the product was defective.

That decision was consistent with the approach taken by a Belgian court in an earlier case involving an exploding soft- drink bottle. Like the Tribunal in Aix, the Belgian court held that the claimant did not have to prove the precise cause of the accident to enable the court to find that the bottle was defective.

The decisions of those jurisdictions contrast with the approach taken by the English courts in two later decisions: Richardson v LRC Products Ltd [2000] and Foster v Biosil [2000]. In Richardson the court was faced with the delicate question of whether a condom that broke during use was defective. In Foster a silicone breast implant failed. In neither case could the claimant prove the precise mechanism causing the failure. The courts held that the claims must fail on the basis that it was not sufficient to prove a mere ‘failure’ of the product; it was necessary to go further and to prove the nature of the defect resulting in the failure.

The English courts reasoned that unless the claimant made clear to the manufacturer (and the court) the nature of the defect, the manufacturer would be put in a position of never being able to invoke the state of the art defence. In other words, unless the manufacturer understood in precise terms what the defect was, it could not say whether at the time it put the product into circulation that it could (based on the scientific and technical knowledge at that time) have detected the defect.

The state of the art/ development risks defence has itself been the subject of inconsistent decisions throughout the EU.

In the Netherlands (Scholten v Sanguin Supply of Blood [1999]) it has been held that suppliers of blood products who were, at the time of supply, unable to screen for HIV, were entitled to rely on the defence where recipients of the blood became infected by the virus. By contrast, Burton J, in A and others v The National Blood Authority and others [2001], found that the defence was not available to the National Blood Association (NBA). The NBA was sued in a group action by claimants who had contracted the Hepatitis C virus as a result of blood transfusions administered by the NBA. The claimants accepted that, at the time they received their transfusions, the state of scientific and technical knowledge was such that it was impossible to detect the Hepatitis C virus in any batch of blood that was to be administered. Notwithstanding that fact, Burton J held that the defence failed in particular because while the NBA could not possibly have detected the virus, it was aware of the existence of Hepatitis C and that there was a risk to those receiving transfusions that they might contract the virus.

This unequal application of the provisions of the Directive has lead to uncertainty for manufacturers as to how their products will hold up to judicial scrutiny. The outcome of litigation would appear to depend on which jurisdiction the case is brought in. This is so, notwithstanding the objective of those who drafted the Directive that the law in relation to defective products should be uniform in its application across the EU.

The Commission believes that, over time, a sufficient body of case law will build up in the various jurisdictions of the EU such that the courts of one jurisdiction will take notice of decisions of other EU jurisdictions and seek to apply a uniform approach. So far, this has not happened in practice. For example, in the National Blood Authority case Burton J extensively reviewed decisions of other jurisdictions, including the decisions of the court in the Netherlands that had decided on HIV but came to an opposing conclusion.

This lack of uniformity in relation to what the consumer must prove to establish a defect, or whether the state of the art defence can be relied upon, may in future be reflected in the way in which courts of different EU jurisdictions approach other aspects of the Directive’s provisions.

For example, while there is a consensus that the ‘scientific and technical knowledge’ referred to in the state of the art defence must have been ‘accessible’ at the time the product was first put into circulation, there must be real doubt as to the approach that different national courts will take as to when the knowledge can be described as being ‘accessible’. Will, for example, accessibility take into account the cost of obtaining such knowledge compared with the benefits and costs of the product? How extensively does a manufacturer have to research potential problems before he can safely say that he’s done enough to discover latent defects? These questions may well be answered differently by courts in different EU countries.

Until the next review of the Directive, EU producers are in a position of significant uncertainty as to where they stand in relation to liability for their products. This will affect the need for manufacturers to plan and develop their risk strategies in a consistent legal environment.

A and others v The National Blood Authority and others [2001] 3 All ER 289 Foster v Biosil (2000) 59 BMLR 178 Richardson v LRC Products Ltd [2000] PIQR P95 

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