1. It was Twenty Years Ago Today
How has the Product Liability Directive fared?
Alison McAdams

2. Issues for review Has the Directive succeeded in its objectives?
What has been its impact?
What issues under the Directive still require clarification?

3. Allocation of risk State, consumer or producer?
Producer alone can distribute the burden of the risk.
How does the Directive protect both product innovation and consumer choice?

4. Directive’s purpose Preamble, clause 2
Liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of risks inherent in modern technological production.

5. Directive’s purpose Preamble, clause 7
A fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances.

6. UK cases examining defect
Abouzaid v Mothercare (UK) Ltd 2000
Foster v Biosil 2000
Richardson v LRC Products Ltd 2000
Worsley v Tambrands Limited 2000
A et al v National Blood Authority 2001
Bogle v McDonald’s Restaurants Limited 2002

7. Article 6
1. A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:
(a) the presentation of the product;
(b) the use to which it could reasonably be expected that the product would be put;
(c) the time when the product was put into circulation.

8. Article 6 issues How safe must a product be?
Does the Directive help in the assessment of legitimate expectation?
In order to ascertain the level of safety, take all circumstances into account.

9. Article 6 circumstances
Exclude circumstances such as
- avoidability;
- feasibility;
- knowledge of learned intermediary;
- utility.
Is so narrow an interpretation justified by the wording of the Directive?

10. Minimising risk
A product is not defective if the risk is fully known and socially acceptable.
What must the public understand?
How much detail and why?
Whose knowledge is relevant?
Can a warning enable a risk to be fully known?
What makes a risk socially acceptable?

11. Defining the defect Standard and non-standard products
What is the criteria of comparison?
How and why are we making the comparison?
Impossibility of identifying the standard product.

12. Article 7(e)
The producer shall not be liable as a result of this Directive if he proves:
(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.

13. Article 7(e) issues
A defence for limited circumstances – the producer supplies at own risk once defect is known.
When is a mere suspicion elevated into knowledge?
Does an AER constitute knowledge?
Is any knowledge inaccessible?

14. Is the Directive working?
Scarcity of cases
The role of other remedies
Impact and efficacy – not measured by numbers alone
Further judicial consideration needed for clarity
Emphasis on product safety brings benefits for consumers and manufacturers