the development risks defence only applies to the fact whether the risk could be known, not whether it could be avoided. The latter view can be considered to be the right one. This means that the Amsterdam District Court wrongly dismissed the claim of the patient.

Presentation of the product and expected use

Art. 6 holds that a product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including the presentation of the product and the use to which it could reasonably be expected that the product would be put.

This provision had to be applied in a case concerning a sixteen-year- old girl, who inserted a mini tampon in a wrong way: she inserted it in the urethra and not in the vagina. She only succeeded in doing so after, following advice from her mother, she had put vaseline on the tampon. After the insertion she could not get the tampon out and surgery was necessary. The girl suffered damage and held the producer of the mini tampon liable.

The court dismissed her claim. Firstly, it decided that the instructions for use were clear enough, even for those using the product for the first time. Secondly, it deemed the design of the tampon not to be defective, because it was only possible to insert it incorrectly with a lot of effort and pain (and vaseline).18

Proof of the defect

The peculiar feature in the Dutch product liability case about a lemonade bottle was not that it exploded but that the top of the bottle broke off.19 This happened when the barman in the canteen of a football club tried to

18Rb. Zwolle 24 April 2002, Praktijkgids 2002, 5921 (X v Johnson and Johnson).

19HR 24 December 1993, NJ 1994, 214 (Leebeek v Vrumona), about which also Dommeringvan Rongen, Product-aansprakelijkheid, p. 14. See also Hof Leeuwarden 21 December 1994, TvC 1995, p. 122: a cyclist suffered damage when the fork of his bike broke. After investigation of the fork, the producer destroyed or mislaid it. The court considered that this fact had to be taken into account to the detriment of the producer as regards the burden of proof of the defect. The court accepted the statement of the cyclist with regard to the place of the crack and with that the cause of the defect. An opposite decision can be found in Hof Amsterdam 27 August 1998, VR 1999, 67 (deskchair): soon after a deskchair broke it was welded by the employer of the victim; for that reason the court put the burden of proof of the defect on the victim.

open it. The barman was injured and held the producer of the lemonade bottle liable.

The accident took place in the autumn of 1988, a few months after the EC Directive had to be implemented in Dutch law. As has been mentioned, the implementation Act entered into force more than two years later. This implied that the Dutch court was obliged to interpret Dutch law in accordance with the Directive. If the Dutch Hoge Raad did so, then it did so by implication only.

The key issue in this case was the burden of proof of the defect, because the producer denied that the bottle was defective and argued that it was likely that the bottle had broken owing to another cause, probably that of using too much force.

Article 4 of the Directive holds that the injured person has to prove the defect. It is clear that he could not prove the defect by simply showing the broken bottle, since the bottle could also have been broken because of wrongful conduct of the barman. On the other hand it would be too burdensome to oblige the barman to prove the defect of the bottle itself, since this is in practice hardly possible. The Dutch Hoge Raad took an intermediate view and decided that if the barman could prove that he had opened the bottle in a normal fashion, this would lead to the factual presumption that the damage had been caused by a defect of the bottle. It was then up to the producer to rebut this presumption and to prove that the bottle was nevertheless not defective.20 This decision can be seen as an application of the res ipsa loquitur rule, a rule which is also applied in other European legal systems.

Proof of causal relationship between defect and damage

The injured person has to prove the causal relationship between the defect and the damage (art. 4). This can be illustrated by the following decision.21 Ms Boerman bought an ice-cream at Alberto’s Snackcounter. It was a Jive ice-cream, produced and pre-packed by Motta. After eating the ice-cream Ms Boerman was thought to have contracted paratyphus. She suffered damage for which she held Alberto liable. Alberto was not the producer

20In accordance with the regime of the PL Directive, the Hoge Raad furthermore decided that the producer had to prove that the defect did not exist when it was put into circulation (cp. art. 7 sub b), that the defect could not have been discovered at an earlier date (cp. art. 7 sub e) and that the product was not used in accordance with its intended use (art. 6 al. 1 sub b).

21Ktg. Zwolle 4 July and 5 December 2000, Praktijkgids 2001, 5699 (Boerman v Alberto).

of the ice-cream, so this is not a genuine product liability case but, as I will point out, the causation issue that was raised could also have arisen in a claim against the producer.

Experts had concluded that a number of ice-creams which were sold by Alberto were contaminated with salmonella. The court deemed it beyond reasonable doubt that Ms Boerman had bought one of these contaminated ice-creams. This was sufficient to conclude that there was a breach of contract by Alberto. But was there also a causal connection between this breach of contract and the damage to Ms Boerman? Paratyphus can be caused by the salmonella microbe, more specifically by the salmonella paratyphi. In this case there is an incubation period of seven to twenty days and Ms Boerman got ill only two days after eating the ice-cream. The salmonella enteritidis has a shorter incubation period and can cause the same symptoms. This microbe was also found in the contaminated ice-creams. However, the hospital had diagnosed that Ms Boerman was infected by a salmonella microbe but it had not made a more specific diagnosis. So, although it was likely that Ms Boerman had got ill as a consequence of eating the ice-cream from Alberto, this was not beyond doubt. Who had to bear the risk of this uncertainty? In accordance with the case law of the Dutch Hoge Raad, the Court decided that it was up to Alberto to prove that Ms Boerman would have suffered the same damage if she had not eaten the ice-cream.

The judge referred to the so-called ‘reversal rule’ of the Hoge Raad. This rule determines under which circumstances the burden of proof regarding causation can be reversed.22 The plaintiff has to prove which risk has been created by the defendant and that specifically that risk has materialised.23 If these requirements are met, the burden of proof with regard to causation will be reversed. This means that the defendant has to prove that there is no causal connection between the breach of duty and the damage. This reversal rule does not apply if the facts of the case are unclear or if it is not plausible or likely that the claimed damage has been caused by the breach of duty.24 With these decisions the Hoge Raad has narrowed the scope of the reversal rule substantially.

22See about this so-called ‘omkeringsregel’: HR 26 January 1996, NJ 1996, 607, note WMK (Dicky Trading II); HR 16 June 2000, NJ 2000, 584, note CJHB (Sint Willibrord); C.C. van Dam, Aansprakelijkheidsrecht (DenHaag: Boom, 2000), nr. 810; I. Giesen, Bewijs en aansprakelijkheid (2001), p. 116 ff.

23HR 19 January 2001, NJ 2001, 524, note JBMV (Ter Hofte v Oude Monnik Motors).

24HR 29 November 2002, RvdW 2002, 190 (TFS/NS); HR 29 November 2002, RvdW 2002, 191 (Kastelijn v Achtkarspelen).

Up till now, the rule has not been applied in (genuine) product liability cases.

This reversal of the burden of proof resembles the so-called McGhee- test of Lord Wilberforce. He said: ‘It is a sound principle that where a person has, by breach of duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause.’25 As a general rule this statement has been rejected as demonstrated in Wilsher,26 although in the Fairchild case the rule was applied with regard to liability for indivisible diseases.27

A comparable rule applies in German law with regard to the so-called Verkehrspflichten (duties of care). The rule holds that if the damage falls within the scope of protection of the duty of care, there is a rebuttable presumption that there is causation between the breach of duty and the damage (Anscheinsbeweis).

So, although the concept of rebuttable presumption is well known, the question is whether (and if so, how) this concept will be applied in cases of product liability to which the Directive is applicable. In most legal systems the courts are also entitled to shift the burden of proof from the plaintiff to the defendant. This is not a rule but an option open to the courts to use in the established circumstances of the case. In Dutch law this follows from art. 150 Civil Procedure Act (Wetboek van Burgerlijke Rechtsvordering).

Information about the identity of producer or importer

Mohammed Al Kholali bought an electric cooker in an ‘It’s’ shop. When he used this cooker at home a fire broke out. It was assumed that this fire had been caused by a defect in the electric parts of the cooker. The plaintiff, who did not have fire insurance, held ‘It’s’ liable for the damage. Initially ‘It’s’ acknowledged liability but three weeks later denied it and referred the plaintiff to the importer of the cooker.

The decision of the President of the District Court of Breda28 focused on the application of art. 3(3) of the Directive (art. 6:187 al. 4). This provision holds: ‘Where the producer of the product cannot be identified, each supplier of the product shall be treated as its producer unless he

25Lord Wilberforce in McGhee v National Coal Board [1973] 1 WLR 1 (HL).

26Wilsher v Essex Area Health Authority [1988] AC 1074 (HL).

27Fairchild v Glenhaven Funeral Services Ltd [2002] 3 All ER 305.

28Pres. Rb. Breda 8 December 2000, KG 2001, 28 (Al Kholali v It’s Electronic).