Infected Blood: Defect and Discoverability A First Exposition of the EC Product Liability Directive

DOIhttp://doi.org/10.1111/1468-2230.00369
AuthorGeraint Howells,Mark Mildred
Publication Date01 January 2002
Date01 January 2002
matter.
50
On the very particular (and distressing) facts before it, the Court had no
difficulty in finding a breach of the State’s obligations under Article 3 of the
Convention in relation to permitting the applicants to continue in an inhuman and
degrading situation. But there is no doubt that the reversal of Osman is
controversial in Strasbourg, just as was the original decision in the United
Kingdom. In her excellent note on the case, Rosalind English draws attention to the
composition of the Court in both cases, with there being just two judges common
to both decisions, one of whom is a dissenter in Z and others.
51
The fact that the
European Court of Human Rights sits in various panels and that even its largest
gathering contains fewer than half the judges makes its role as a final court of
appeal on Convention matters seem at times somewhat arbitrary, a matter not of
what the law is but of who happens to be on the bench. It is difficult to know in
such circumstances whether it is right or even possible to say that the European
Court of Human Rights has ‘changed its mind’. The Head Boy in charge of
Elizabeth’s school had no such philosophical difficulty when he publicly
congratulated her on her change of heart: ‘Elizabeth! we are very pleased with
you. You’ve made a lot of silly mistakes, but you have made up for them all and
we admire you for being able to change your mind, admit you were wrong, and say
so to us all!’
52
Infected Blood: Defect and Discoverability
A First Exposition of the EC Product Liability Directive
Geraint Howells* and Mark Mildred**
Introduction
The extent to which the provisions of the Consumer Protection Act 1987 Part I
(‘‘the CPA’’) implementing the Product Liability Directive (‘the Directive’)
1
impose strict liability for defective products has been more discussed in academic
and practitioner comment than litigated.
2
In the 13 years the statute has been in
50 n 2 above, paras 102–103; 105–111. But note that Article 13 does not necessarily guarantee a judicial
remedy: see para 110.
51 ‘The Decline and Fall of Osman’ (2001) 151 NLJ 973.
52 n 1 above, p 199.
*Department of Law, University of Sheffield. ** Nottingham Law School, Nottingham Trent University.
1 Council Directive 85/374/EEC 25 July 1985 on the approximation of the laws, regulations and
administrative provisions of the member states concerning liability for defective products. References
in this note to ‘‘Articles’’ are references to Articles of that Directive.
2 See for example S. Whittaker, (1985) 5 Yearbook of European Law 233; C. Newdick, ‘The Future of
Negligence in Product Liability’ (1987) 104 LQR 288; J. Stapleton, ‘Products Liability Reform Real
or Illusory?’ 6 Oxford Journal of Legal Studies 392 (1986); R. Nelson-Jones and P. Stewart, Product
Liability (London: Fourmat Publishing, 1998); A.M. Clark, Product Liability (London: Sweet &
Maxwell, 1989); J. Stapleton, Product Liability (London: Butterworths, 1994); G. Howells (ed), The
Law of Product Liability (London: Butterworths, 2000); M. Mildred (ed), Product Liability: Law and
Insurance (London: LLP Press 2001).
January 2002] AvNational Blood Authority
ßThe Modern Law Review Limited 2002 95

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