The Gazette 1986

GAZETTE

APRIL 1986

The EEC Directive on Products Liability

P ART II

William Binchy, B.A., B.C.L., LL.M., Barrisler-at-Law

Other Key Provisions in the Directive

We must now examine some other key provisions in

the Directive, such as questions of proof and causation,

the defences available to producers, limitation periods,

contributory negligence and "contracting out" of liability.

Questions of Proof and Causation

Article 4 provides tersely that:

"The injured person shall be required to prove the

damage, the defect and the casual relationship between

the defect and damage."

The onus of proof is thus clearly on the injured person,

but what must be proved is, of course, less conceptually

encumbered than what is necessary to establish in a

negligence action. There is no need to establish any

breach of duty of care on the part of the defendant: all

that need be shown is that the product was defective,

that the plaintiff suffered damage and that "the casual

relationship between the defect and the damage" existed.

One or two questions arise about this approach. To

what extent, if at all, may the

res ipsa loquitur

doctrine,

or some analogue, apply? This is a formidable issue

since, under present law, it is far from clear what precisely

the doctrine means and what are its effects on the onus

of proof.

Secondly, what is meant by "the casual relationship

between defect and damage"? Obviously, if there is

casual relationship, the plaintiff cannot succeed, but the

converse is not necessarily the case, as the doctrine of

"proximate cause" or remoteness of damage makes

clear. In tort law, not every case involving a casual

relationship will be sufficient to impose liability on the

defendant, and this limitation applies even in cases of

strict liability. Article 4 specifies no similar limitations.

Perhaps it should be interpreted as implicitly imposing

liability, however indirect and distant the casual relation-

ship may be. Alternatively, it should be read subject to

implicit limitations to be filled in by the courts.

Defences

The Directive, in Article 7, provides five defences to

the strict liability principle. A producer will not be liable

if he proves:

(a) that he did not put the product into circulation; or

(b) that, having regard to the circumstances, it is

probable that the defect which caused the damage

did not exist at the time when the product was put

into circulation by him or that this defect came

into being afterwards; or

for sale or any form of distribution for economic

purpose nor manufactured or distributed by him

in the course of his business; or

(d) that the defect is due to compliance of the product

with mandatory regulations issued by the public

authorities; or

(e) that the state of scientific and technical knowledge

at the time when he put the product into circulation

was not such as to enable the existence of the defect

to be discovered; or

(0 in the case of a manufacturer of a component that

the defect is attributable to the design of the

product in which the component has been fitted

or to the instructions given by the manufacturer

of the product.

Regarding the first defence, that the producer did not

"put the product into circulation", the Commission

were of the view that it was not necessary to define this

term further since it was "self-explanatory in the

ordinary meaning of the words".

The Commission

considered that "normally, an article has been put into

circulation when it has been started off on the chain of

distribution".

Thus, if a product is released onto the

market as a result of theft, the producer would not be

strictly liable. Of course, if the theft were foreseeable,

the producer could in some circumstances be liable in

negligence for reasonably foreseeable injuries resulting

from this.

But it would appear that strict liability

would not attach to the producer in such circumstances,

unless (which seems unlikely) a.very broad, and strained,

interpretation were given to the words "put . . . into

circulation".

The defence contained in ground (b) in Article 7 is

designed to protect the producer from defects coming

into being some time after the product was put into

circulation by him. As the Commission noted, "One of

the conditions for the liability of the producer is that the

defect in the article should arise in the producer's prod-

uction process . . . Liability is therefore excluded where

the defect arose only after the time it was put into

circulation . . .

But although the difference may

be easy enough to state in the abstract, it does raise

some troublesome conceptual - indeed philosophical -

issues. If a defect appears in a product two years after

the product was put into circulation, by what criteria

can it be judged to have "come into being" at any par-

ticular time? And when should that time be? Are we not

here attempting to resolve the problem of "actualisation

of potential", which has troubled philosophers since the

time of Aristotle? If a car develops a weakness in its

brakes after two years, and the technical evidence is to

the effect that the car is so manufactured as for the

brakes generally to start weakening dangerously at this

time, is that a defect "coming into being" at this time, of

manufacture or two years later? Would the answer be

the same if the relevant period were two weeks? Or

twenty years?

The defence contained in ground (c) of Article 7 pro-