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European Product Liability a Comparative Study Of European Product Liability A Comparative Study of "Development Risks" in English and German Law A thesis submitted to the University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities. 2019 Marcus J. Pilgerstorfer School of Law Faculty of Humanities 1 Abstract This thesis focuses upon one of the major areas of controversy in the European Product Liability Directive: the so-called ‘development risks defence’ (article 7(e)). That defence exculpates a producer from liability where he can prove “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”. Most member states have implemented the defence and it is regularly identified as being part of the balance between consumer and producer interests forming the ‘fair apportionment of risk’ which the PLD has set. The wording of the defence, whilst at first seductively simple, upon examination gives rise to many questions of interpretation. The answers to these will not only determine the true scope of the defence, but in many ways the strictness of the liability imposed by the PLD itself. This study explores these questions using a comparative law lens and by examining how two particular jurisdictions – (i) England and Wales, and (ii) Germany – have implemented and applied the defence and the related concept of defect. Following a brief introduction (chapter 1), and outline of the methods employed (chapter 2), I examine the concepts of defect and DRD as a matter of EU law (chapter 3). After considering the justifications for strict product liability (chapter 4), I then examine the implementation in England (chapter 5) and Germany (chapter 6). In chapter 7, I explore the similarities and divergences in the regimes and conclude that whilst there are significant differences in methodological approach, as a matter of substance a strict application of the defence is achieved in both. I also offer my own observations as to the true scope of the harmonising EU norms, arguing that the DRD is properly regarded as a narrow escape route from liability imposed by the directive and that considerations of reasonableness ought not to affect the assessment of discoverability. Further, the characterisation of ‘defect’ for the purpose of the DRD is rightly identified by the German courts as the underlying risk of harm, rather than the approach apparent from the most recent English case of Gee v DePuy. The law is stated as at 1 August 2018, but where possible subsequent developments have been included. 2 Declaration and Copyright Notice Declaration No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning. Copyright Notice (i) The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and s/he has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. (ii) Copies of this thesis, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patents Act 1988 (as amended) and regulations issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page must form part of any such copies made. (iii) The ownership of certain Copyright, patents, designs, trademarks and other intellectual property (“the Intellectual Property”) and any reproductions of copyright works in the thesis, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property and/or Reproductions. (iv) Further information on the conditions under which disclosure, publication and commercialisation of this thesis, the Copyright and any Intellectual Property and/or Reproductions described in it may take place is available in the University IP Policy (see http://documents.manchester.ac.uk/DocuInfo.aspx?DocID=24420), in any relevant Thesis restriction declarations deposited in the University Library, The University Library’s regulations (see http://www.library.manchester.ac.uk/ about/regulations/) and in The University’s policy on Presentation of Theses. 3 Acknowledgements There are many people to whom I am grateful and without whose influence, help and assistance I could not have completed this work. First, and principally, I must thank my supervisors. Over the lifetime of this project I have been very pleased to have had input and unwavering support and encouragement from Annette Nordhausen-Scholes, Dimitrios Doukas and Geraint Howells. I am also grateful to the examiners of this work – Ken Oliphant, Peter Rott and Eleanor Aspey – for their helpful comments and discussion. All errors remain, of course, my own. I would also like to record my appreciation to Simon Whittaker (who first sparked my interest in this field as an undergraduate), and to the many distinguished barristers and solicitors with whom I have enjoyed working on product cases. Special thanks go to the following who have helped develop my thinking in this area over the years: Barry Cotter, Charles Pugh, Christopher Makey, Robin Oppenheim, Hugh Preston and Duncan Fairgrieve. Combining this study with practice as a barrister has presented its challenges and I am grateful to colleagues and particularly my clerks at Chambers for assisting with making it happen. I am also very grateful to Barnaby Moore for his proof-reading assistance. Finally, but importantly, I must thank my wife Alex and children Joshua and Liesl for their support and understanding whilst I have been engaged in this endeavour. Marcus Pilgerstorfer 10 June 2019 4 Table of Contents ABSTRACT ........................................................................................................................................................ 2 DECLARATION AND COPYRIGHT NOTICE .......................................................................................................... 3 ACKNOWLEDGEMENTS .................................................................................................................................... 4 TABLE OF CONTENTS ........................................................................................................................................ 5 BIBLIOGRAPHY ............................................................................................................................................... 10 TABLE OF STATUTORY MATERIAL .............................................................................................................................. 10 TABLE OF CASES .................................................................................................................................................... 12 TABLE OF OTHER REFERENCES ................................................................................................................................. 17 LIST OF ABBREVIATIONS ................................................................................................................................ 29 1 INTRODUCTION ..................................................................................................................................... 30 1.1 THE PLD AND THE DEVELOPMENT RISKS DEFENCE.......................................................................................... 30 1.2 A TALE OF TWO JURISDICTIONS................................................................................................................... 32 1.3 AIMS OF THIS STUDY ................................................................................................................................. 34 1.4 OVERVIEW OF CHAPTERS ........................................................................................................................... 35 1.5 BREXIT ................................................................................................................................................... 35 2 COMPARATIVE LAW IN THE PRESENT WORK ......................................................................................... 38 2.1 THEORETICAL APPROACHES TO COMPARATIVE LAW ........................................................................................ 39 2.2 PRACTICAL COMPARATIVE LAW................................................................................................................... 42 2.3 REFINING A METHOD FOR THE PRESENT STUDY .............................................................................................. 49 2.4 CONCLUSIONS ......................................................................................................................................... 50 3 THE PRODUCT LIABILITY DIRECTIVE ....................................................................................................... 51 3.1 INTRODUCTION ....................................................................................................................................... 51 3.2 BACKGROUND AND HISTORY .....................................................................................................................
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