UK: Car Trouble – Vehicle Manufacturers and Pedestrian Safety

The recent ENCAP results indicated that five vehicles obtained a maximum of five stars for occupant safety.

However, those same tests indicated that most car manufacturers performed poorly when it came to pedestrian safety. Indeed, only two cars received three out of a possible four stars for pedestrian safety.

To date, there have been no reported product liability cases of injured pedestrians taking vehicle manufacturers to Court, attempting to obtain damages on the basis that the vehicle which caused their injuries was inherently defective in design, in that it did not afford an appropriate level of pedestrian protection in the event of a collision. Current statistics show that approximately 8,000 pedestrians and cyclists are killed in accidents with motor vehicles, with a further 300,000 injured in the EU each year. As a result of these statistics, the European Commission has tabled a draft Directive, which aims to reduce deaths and injuries in road traffic through changes to the construction of the front of vehicles, mainly affecting the bonnet and the bumper. Vehicle manufacturers will have to demonstrate that their vehicles satisfy a series of safety tests. It is proposed that the new draft Directive will amend the EEC whole vehicle typeapproval system set up by Directive 70/156/EEC.

In brief, in order to comply with the proposed provisions of the draft Directive, all motor vehicles (passenger cars and light vans) will have to pass certain fundamental crash worthiness tests, with the emphasis placed squarely on pedestrian safety. In the first phase, starting in 2005, new types of vehicles must comply with two tests concerning protection against pedestrian head injuries and leg injuries. In the second phase, starting in 2010, four tests of increased severity will be required for new types of vehicles, two tests concerning pedestrian head injuries and two concerning leg injuries. Within five years all new vehicles will have to comply with these test requirements.

As with any innovative safety design feature incorporated into new vehicles, the potential for product liability claims arising as a result increases. For example, insofar as those vehicles which will remain on the open road, but which do not incorporate these new safety design features, one question which may be asked is whether those vehicles could be considered "defective", in the event that they are involved in a collision with a pedestrian, with that pedestrian suffering injuries which might not have occurred if the vehicle concerned had the benefit of these new safety features.

In brief, the answer to this question is ‘No’. Article 6(2) of the product liability Directive (85/374/EEC) states that a product is not to be considered defective for the sole reason that a better product is subsequently put into circulation. Indeed, Article 6(1) of the Directive, wherein is set out the "safety expectation" test, makes it quite clear that in determining whether a product is defective or not, the Court is to take into account the time when the product was put into circulation.

Accordingly, insofar as those vehicles which do not incorporate the pedestrian safety design features (for the simple reason that they were manufactured some time before this mandatory requirement came into being) any argument that such products are "defective" within the meaning of Article 6 is likely to founder.

That being said, the introduction of the draft Directive acts as a timely reminder, not only to the motor vehicle industry, but also to those manufacturing sectors where safety features within a product provides them with a competitive edge, that it is imperative – particularly if that same manufacturer ever has to avail itself of the so-called development risks defence as set out under Article 7(e) of the product liability Directive – that it monitors the relevant scientific and other literature detailing new safety innovations insofar as the use of similar product types are concerned. Further, a prudent manufacturer should also carry out proper testing on his products and, once again, monitor their use and the use of similar products.

The automotive industry is, for obvious reasons, extremely safety conscious. Indeed, the draft Directive was formulated out of negotiations with the associations representing the European, Japanese and Korean automobile manufacturers. The prudent manufacturer (of any consumer product), however, will always be endeavouring to improve the safety features of its product, not only to ensure compliance with Article 6 of the Product Liability Directive, but also to ensure that – if necessary – it can mount a viable development risks defence.