Comment on ‘Development Risks: Unanswered Questions’
| Date | 01 July 1998 |
| DOI | http://doi.org/10.1111/1468-2230.00164 |
| Published date | 01 July 1998 |
approach of the Directive and equates it with little more than negligence liability.30
The Court of Justice has not resolved the problems with the defence itself. Indeed,
the Court has increased confusion whilst trying to be helpful: the importation of an
accessibility test for scientific and technical knowledge must be associated with a
reasonableness test and the ‘most advanced level of knowledge’ test raises more
questions than it answers. These attempts at clarification merely serve to illustrate
the difficulties which are inherent in the defence itself. There are several ways in
which the meaning of the defence remains elusive. Only further litigation will help
to clarify its meaning and who is to bear the risk of unknown defects. The
continuation of such arguments will do nothing to achieve acceptance of a fair
balance of the apportionment of risks, but will merely destabilise the Community
by failing to provide both consumers and producers with a defence whose meaning
is sufficiently clear to avoid extensive litigation.
Comment on ‘Development Risks: Unanswered
Questions’
Mark Mildred* and Geraint Howells**
In his comment on Commission vUnited Kingdom1Christopher Hodges argues
that the development risks defence in Article 7(e) of the Product Liability Direc-
tive2should be interpreted in a way that strikes a fair balance between producers
and consumers given a context in which the former are encouraged to innovate and
where the latter wish to enjoy the benefits of innovation. Put in these terms, it is
tempting to prioritise the interest of innovative producers over those of consumers,
and to move away from the originating concerns underlying the Directive.3
However, even if the protection of innovation leading to industrial success and
wealth generation for all is a desirable millenial goal, it should not be substituted
for the original purpose of the Directive. In this light, we wish to express some
reservations about Hodges’s argument.
First, consider Hodges’s position on insurance. Whilst it is true to say that
insurance can provide a pooling method to offset liability, the fact that insurance
may be unavailable or prohibitively expensive for innovative products, where risks
are by definition unknown for a considerable period of time after entry onto the
market, is not a reason to interpret the development risks defence one way or
another. It is, if anything, a factor which the producer must bear in mind when
deciding whether to launch a product and, if so, what information should be
30 G. Howells, Comparative Product Liability (Aldershot: Dartmouth, 1993).
* Nottingham Law School, Nottingham Trent University and Co-Agent for the European Commission in
the Infringement Proceedings Case C 300/95.
** Law Department, University of Sheffield.
1 [1997] All ER (EC) 481.
2 Directive 85/374/EEC (hereinafter ‘the Directive’).
3 As set out in the Recitals to the Directive. They include avoidance of distortion of competition and the
fettering of free movement of goods but are primarily the protection of consumers and the fair
apportionment of risk by imposition of liability without fault.
The Modern Law Review [Vol. 61
570 The Modern Law Review Limited 1998
To continue reading
Request your trial