The Gazette 1986

GAZETTE

APRIL 1986

tects the non-commercial producer. Ground (d) ensures

that a commercial producer will not be faced with the

dilemma of having to comply either with mandatory

regulations issued by the public authorities or with the

terms of the Directive: if such a potential clash arises,

the producer will have a good defence under the Directive

if he complies with the mandatory regulations.

Ground (e) of Article 7 contains an important modi-

fication to the strict liability principle. A producer will

be relieved of liability that would otherwise attach if he

can prove that the state of scientific and technical know-

ledge at the time when he put the product into circul-

ation was not such as to enable the existence of the

defect to be discovered. In other words, if the product

was as safe as the "state of the a r t" would allow at the

time of production, subsequent improvements in safety

in the production process with respect to this product

may not be carried on by an injured plaintiff as setting

the standard of safety. To some degree this specific

defence is contained, in general terms, in Article 6: for

why should a person be "entitled to expect" a standard

of safety which,

ex hypothesi,

was

impossible

to attain

at the time the product was put into circulation? More-

over, Article 6, as we have seen, specifies "the time

when the product was put into circulation" as a circum-

stance to be taken into account in determining whether a

product is defective. This would appear to give some

scope to the "state of the a r t" defence to operate, even

without the express ground to this effect contained in

Article 7.

In the United States conformity with the "state of the

a r t" will generally result in the producer escaping liabil-

ity, either as an affirmative defence or on the basis that

the product should not be regarded as being defective in

such a manner as to be "unreasonably dangerous" - the

core concept in products liability law there. Prosser &

Keeton,

observe that:

"If inability to discover a risk or hazard related to

product design is regarded as a defence, then it is true

that the only practical difference between strict liability

for design hazards using a danger-utility test and

negligence is a change in the burden of p r oo f ."

It is perhaps worth raising the question whether the

"state of the a r t" defence contained in Article 7 of the

Directive would be more effective in exempting a

producer from strict liability under the Directive than

from liability in negligence at common law. Mere proof

that the state of scientific and technical knowledge at

the time the product was put into circulation "was not

such as to enable the existence of the defect to be discov-

ered" will relieve the producer of strict liability; but in a

negligence action the matter would not be so easily

decided in his favour. A separate question could arise in

some cases as to whether, in view of the limited level of

scientific knowledge and relatively undeveloped "state

of the a r t ", it was negligent to have put the product into

circulation. The risk to the consumer could well out-

weigh the benefits, especially where the desire to make

profits encouraged a premature release of a product

onto the market.

It should be noted that any Member State may, by

way of derogation from Article 7(e), provide that the

producer is to be liable even where he proves that the

state of scientific knowledge at the time when he put the

product into circulation was not such as to enable the

existence of a defect to be discovered.

Ground (f) of Article 7 allows the manufacturer of a

component to escape liability under the Directive where,

in effect, the responsibility lies with the manufacturer of

the product in which the component is fitted. That

responsibility can arise where the affect is attributable

(i) to the

design

of the product in which the component

is fitted, or (ii) to the

instructions

given by the manufac-

turer of the product. It is possible to imagine cases

where the defect is attributable to a

combination

causes, including the act of the manufacturer of the

component and the instructions given by the manu-

facturer of the product. In such instances joint and

several liability under Article 5, rather than liability

being imposed solely on the manufacturer of the

product would appear appropriate. In other words it

seems that, "attributable" in ground (0 should be inter-

preted as meaning "attributable exclusively" to the

matters specified in the ground. In view especially of the

terms of Article 8, para. 1, it might indeed have been

better if ground (0 had determined this issue more clearly.

In the United States a somewhat similar defence has

been recognised. Prosser & Keeton,

explain that if an

assembled product was unreasonably dangerous because

the component part was unfit for the particular use that

the assembler was making of it, "then arguably the defect

is in the design of the assembled product rather than in

the design of the component pa r t ." This does not mean,

however, that the manufacturer of the component part

will always be able to escape liability:

"If the maker of the component part. . . knows or has

reason to know that the part will be used in a way that

will make the assembled product unreasonably dan-

gerous then such a seller may well be subjected to

liability on a warranty of fitness theory if the purchaser

was relying on the seller, or a negligent entrustment

theory or perhaps strict liability in tort without regard

to reliance."

Limitation Period and Extinction of Liability

The idea of a limitation period is based on two policies:

first that a defendant should be protected from stale,

possibly fraudulent, claims, where accessibility to evid-

ence has been diminished; and secondly that a plaintiff

who sleeps on his rights is not entitled to an indefinite

period within which to take the action. As one com-

mentator has pointed out:

"The conflict generated by these two often contradict-

ory currents of thoughts is responsible for much of

the discord in this area. One school of thought

emphasises the security of the defendant, while the

other emphasises the lack of diligence on the part of

the plaintiff."

The thrust of the Directive seems, on balance, to

favour the first school of thought. Though Article 10 is

framed in terms generous to plaintiffs, the benefit of

this is largely, if somewhat arbitrarily, subverted by

Article 11.

Article 10 requires Member States to provide in their

legislation that a limitation period of three years is to

apply to proceedings for the recovery of damages as