The Gazette 1986

APRIL 1986

GAZETTE

The EEC Directive on Products Liability P ART II by William Binchy, B.A., B.C.L., LL.M., Barrisler-at-Law

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". 25 The Commission considered that "normally, an article has been put into circulation when it has been started off on the chain of distribution". 26 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. 27 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 . . . 2S 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- 73

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. 24 Secondly, what is meant by "the casual relationship between defect and damage"? Obviously, if there is no 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 (c) that the product was neither manufactured by him 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