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Published online by Cambridge University Press: 06 March 2019
The Product Liability Directive of 1985 (85/374/EEC) (“the Directive”), which sought to harmonise a strict liability regime for defective products across the European Union, has now been implemented into domestic law by all EU member states. In some countries the implementing legislation has been in force for more than 10 years. Nevertheless, until recently, there were few decided cases, both in the United Kingdom and across Europe generally, considering in detail the often critical provisions of articles 6 (definition of defectiveness) and 7(e) (the development risks defence).
* Solicitor (England and Wales); Barrister and Solicitor (New Zealand); Ashurst Morris Crisp, Frankfurt; email: richard.best@ashursts.com. The author thanks those colleagues in the firm's London, Frankfurt and Munich offices who commented on earlier drafts of or issues addressed in this article. Equally, responsibility for errors lies with the author alone. Views expressed in this article are not necessarily those of the firm. Reliance should not be placed on this article without seeking advice relating to one's individual circumstances. Further information on the firm's product liability practice is available on request or via the firm's website: www.ashurst.com/practice/product/index.htmGoogle Scholar
(1) Austria in July 1988, Belgium in November 1991, Denmark in June 1989, Finland in September 1991, France in May 1998, Germany in January 1990, Greece in July 1988, Ireland in December 1991, Italy in June 1988, Luxembourg in May 1989, The Netherlands in November 1990, Portugal in November 1989, Sweden in February 1992, Spain in July 1994 and the United Kingdom in March 1988.Google Scholar
(2) [2001] 3 All ER 289; available in full text on-line via: http://www.bailii.org.Google Scholar
(3) Previously there was limited case law in the UK on the civil liability provisions of the CPA and in none of those cases did the courts undertake the kind of jurisprudential analysis one sees in the Blood Transfusion case: Abouzaid v Mothercare (UK) Ltd (unreported, 21 December 2000, Court of Appeal) (successful claim for damage to eye following flicking back of elasticated buckle/strap used to attach a fleece-lined sleeping bag to a pushchair); Richardson v LRC Products Ltd (2001) 59 BMLR 185 (unsuccessful claim for alleged injury following the splitting of a condom in use after which the claimant became pregnant); Worsley v Tambrands Ltd (unreported, 3 December 1999, High Court) (unsuccessful claim arising from alleged toxic shock syndrome following the use of a tampon).Google Scholar
(4) BGH judgment of 9 May 1995, ZIP 1995, p. 1094; an English translation can be found at www.iuscomp.org/gla/judgments/tgcm/z950509.htm.Google Scholar
(5) Translation per paragraph 44(ii) of the Blood Transfusion judgment: above n 2.Google Scholar
(6) Business Transactions in Germany, 2000, Vol. 4, §38.03[3][ii].Google Scholar
(7) Entwurf eines Zweiten Gesetzes zur Änderung schadensersatzrechtlicher Vorschriften, Drucksache 14/7752, available via www.bundestag.de.Google Scholar
(8) Translation cited at n 4 above, p. 3, para 2(a).Google Scholar
(9) BGH judgment of 2 February 1999; NJW 1999 p. 1028.Google Scholar
(10) Business Transactions in Germany, above n 6, §38.03[1][C], citing OLG Düsseldorf judgment of 10 February 1992, 1U 218/90.Google Scholar
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