Dutch case law on the EU Product Liability Directive

this provision implies that the producer can invoke the development risk defence (see also para. 2).

The previous Dutch case law with regard to product liability did not differ much from the PL Directive. In the Halcion decision the Hoge Raad held that it is unlawful (onrechtmatig) to put a defective product into circulation, using the same definition of defect as in art. 6 of the PL Directive.6 However, next to the unlawfulness requirement, it had to be established that the producer knew or ought to have known of the defect and that he was able or should have been able to prevent the defect (toerekening). Sometimes the courts laid the burden of proof of the opposite on the producer.7

In cases of pure economic loss and of damage to commercial goods caused by a product (thus cases to which the Directive does not apply, see art. 9), the Hoge Raad follows a comparable path. The rule is that it is unlawful (onrechtmatig) to put a product into circulation that causes damage when it is used in a normal way and in accordance with its purpose.8 In principle this implies that the producer is not liable if the damage is caused by a wrongful use of the product. This would differ from the defectiveness requirement of the Directive, which requires the producer to take into account wrongful conduct of the user of the product, at least to a certain extent. The criterion of the Hoge Raad has been criticised because it would easily establish the unlawfulness of putting cigarettes into circulation.9 The general approach of the Hoge Raad is that it applies a kind of expectation test in order to establish unlawfulness and not a kind of risk–utility test.10

This implies that the main difference between the regime of the directive and that of general tort law is that the latter regime additionally requires

6HR 30 June 1989, NJ 1990, 652, note CJHB (Halcion); see also HR 2 February 1973, NJ 1983, 315, note HB (Leaking Hot Water Bottle) and HR 15 March 1996, NJ 1996, 435 (Ateliers Belges R´eunis v Kuijt).

7Hof Amsterdam 27 June 1957, NJ 1958, 104 (Ford v Den Ouden); Hof Den Bosch 18 January 1995, TvC 1995, 207 (W. v Hero); Hof Amsterdam 27 August 1998, VR 1999, 67 (Steifensand v Vos). See however also Rb. Breda 11 November 1969, NJ 1971, 427 (Hendriks v Weco).

8HR 6 December 1996, NJ 1997, 219 (Du Pont v Hermans); HR 22 October 1999, NJ 2000, 159, note ARB (Koolhaas v Rockwool); HR 22 September 2000, NJ 2000, 644 (Vladeko v VSCI); HR 29 November 2002, NJ 2003, 50 (Helm v Aerts). This rule is connected with the issue of the burden of proof: see HR 24 December 1993, NJ 1994, 214 (Leebeek v Vrumona), about which para. 4.

9A. R. Bloembergen, note under HR 22 October 1999, NJ 2000, 159 (Koolhaas v Rockwool).

10Giesen and Loos, ‘Liability for Defective Products and Services’, para. 2.2; Dommering-van Rongen, Product-aansprakelijkheid, p. 32.

that the unlawful act can be attributed to the producer (toerekening). This is the case if the producer knew or ought to have known about the defect and if he had been able or ought to have been able to prevent it. The courts have interpreted this requirement in a restricted way. Generally, the establishment of unlawfulness leads to the factual presumption of toerekening and it is up to the producer to prove that he could not have known or prevented the defect.11

In cases in which the damage occurs many years after the product has been put on the market, the claim of the victim can be extinguished according to art. 11 of the Directive. This provision holds that the rights of the injured person shall be extinguished upon the expiry of a period of ten years from the date on which the producer put into circulation the actual product which caused the damage. In these kinds of cases the victim has to take refuge in general tort law, which provides longer limitation periods. According to art. 3:310 al. 1 BW a claim for damages expires five years after the victim became aware of both the damage and the person responsible. In any case the claim expires twenty years after the event that gave rise to liability. If the damage is caused by a dangerous substance (for instance a poisonous fluid leaking from a defective tank) this term is extended to thirty years (art. 3:310 al. 2).

By the end of 2002 not more than six cases which were directly or indirectly related to the Directive were published. In the following paragraphs these decisions will be briefly analysed.

Defect and development risk defence

This case, which has been quoted in the English NBA case,12 was about a claimant who, during heart surgery, received HIV-infected blood.13 It was assumed that the blood had been given by a donor who had only just contracted HIV, such that his infection could not be detected by a test during what has been called ‘the window period’. The first question to be

11See the case law mentioned in note 8 and furthermore I. Giesen, Bewijs en aansprakelijkheid (2001), pp. 232–3, who points out that it is not clear whether the courts in these cases decide that there is a reversal of the burden of proof, a factual presumption of toerekening or an obligation for the producer to provide the victim with information in order to enable him to prove his claim.

12A v National Blood Authority [2001] 3 All ER 289.

13Rb. Amsterdam 3 February 1999, NJ 1999, 621 (HIV-Contaminated Blood). See also the critical comments of Dommering-van Rongen, Product-aansprakelijkheid, p. 40 and pp. 114–15.

answered was what the claimant was entitled to expect with regard to the safety of the donor blood as provided in art. 6. The District Court agreed with the claimant that, ‘. . . taking into account the vital importance of blood products and that in principle there is no alternative, the general public expects and is entitled to expect that blood products in the Netherlands have been 100 per cent HIV-free for some time. The fact that there is a small chance that HIV could be transmitted via a blood transfusion, which the Foundation (defendant) estimates at one in a million, is in the opinion of the Court not general knowledge. It cannot therefore be said that the public does not or cannot be expected to have this expectation.’14

This decision in which the Court considered the blood product to be defective is in accordance with the English decision in the NBA case15 and the decision of the German Bundesgerichtshof in the Exploding Mineral Water Bottle case. The expectation of the public is not to be related to the statistical expectations (which would imply that safety expectation lies under 100 per cent) but to the legitimate individual expectation (which implies that safety expectation is 100 per cent).

As has been stated by Rogers: ‘the public had been generally aware of the risk of untraced infected samples of blood, the individual user was entitled to expect that his bag of blood was infection-free and was not to be taken to be participating in a form of Russian roulette’.16 This implies that an announcement to the general public about the small risk caused by blood products would not alter the fact that the individual user is entitled to expect 100 per cent safety. Therefore, it might be concluded that the courts, when establishing the defect of a product, are only allowed to take into consideration safety information which is communicated to the individual user.

The second decision of the court concerned the interpretation of art. 7(e) of the Directive (regarding the development risk defence). The court decided that this defence does not apply only to the knowledge of the risk but also to the avoidability of it. Since in this case it was scientifically impossible to detect the HIV contamination during the so-called window period, the court rejected the claim of the patient. In the English NBA case17 and the German Mineral Water Bottle case it was held that

14Translation derived from A v National Blood Authority [2001] 3 All ER 289, nr. 44 iii.

15A v National Blood Authority [2001] 3 All ER 289.

16Winfield and Jolowicz on Tort (London: Sweet and Maxwell, 2002) 358, with reference to Richardson v LRC [2000] PIQR P164 (at [65]).

17A v National Blood Authority [2001] 3 All ER 289.