(B) Liability for products beyond the Directive’s defendants

In the introduction to this book, I explained why I have been concerned to place the liability of producers and others liable under the 1985 Directive in the context of the liabilities of others for harm caused by products.⁶⁶ My principal concern is with the extent to which these other liabilities affect the extent to which those potentially liable in law under the Directive are likely to bear the burden or part of the burden of liability in fact. This is a function of two features: the first is the extent to which a claimant harmed by a possibly defective product will wish to choose to sue one or more persons other than or as well as one or more of the Directive’s defendants; the second is, given this pattern of likely claims, the extent to which the Directive’s defendants are likely to bear the ultimate burden of liability for the harm which their defective product has caused, a matter of the availability and effect of recourse. In this section, I shall look at the first of these questions, leaving to the following section the question of recourse.

In order to depict the patterns of claims, I shall look first at the general private law frameworks; then at particular situations which cut across the public and private law categories which I have already looked at in terms of the law apart from liability under the Directive to illustrate how these private frameworks relate to the wider legal contexts as well as to liability under the loi of 1998. Finally, I shall note the potential role of liability in the administration for any failures in the exercise of their powers of supervision of the safety of products.

(P.539) (I) The general frameworks of private and administrative law

As a matter of French private law, there is broad division as to the person whom someone injured by a product (the ‘claimant’) may wish to sue instead of or as well as the Directive’s defendants: gardiens within the meaning of article 1384 aliéna 1 of the Civil Code and a person with whom the claimant has a contract. Apart from this division, such a person can always claim under the droit commun of liability for fault under articles 1382 and 1383 where it can be established.

Liability for the ‘deeds of things’ under article 1384 alinéa 1 of the Civil Code has a very prominent role in French law in attracting claims for damage caused by products. As I have explained, this liability rests on a thing’s gardien, defined as the person who possesses its ‘use, direction and control’ and presumed to be its owner, though this presumption may be rebutted, for example, in the case of a person who hires the thing.⁶⁷ The prominence of its role lies in the overlap between a ‘thing’ and a ‘product’, for almost all ‘products’ count as ‘things’ for this purpose,⁶⁸ and ‘things’ also include immovable property and therefore ‘products’ incorporated into immovable property.⁶⁹ This means that a person injured by a ‘product’ (whether defective or not) is almost always injured by a ‘thing’. Furthermore, liability under article 1384 aliéna 1 possesses a number of features which make it much more attractive to a claimant than liability under the loi of 1998. For in principle a person injured by a ‘thing’ does not have to prove either fault in its gardien or any defect in the thing itself⁷⁰ which looks strikingly easier to establish than liability under the loi of 1998 or even liability under the garantie légale in sale, both of which are tied to defect. On the other hand, under the requirement that the thing must play a role in causing a claimant’s harm, French courts have given expression to their overall sense of the proper attribution of responsibility,⁷¹ and in practice distinguish between cases where the thing was in motion and impacted on the person injured, when causation is presumed; where the thing was in motion but did not impact on the person injured, when causation must be proved either by establishing a defect in the thing itself or some ‘anomaly in its position or behaviourd’; and where it was stationary, when the thing’s ‘active role’ must be sought in its ‘abnormality’, notably by its defect or bad positioning.⁷² In the complex case law to which the causal role of the thing has given rise under article 1384 alinéa 1, defectiveness can therefore become relevant, but it is neither defined nor strictly necessary given that it forms merely one possible example of the thing’s ‘abnormality’.⁷³

A further reason why liability under article 1384 alinéa 1 is attractive from a claimant’s point of view is its treatment of defences. So, while a gardien may escape liability by proving force majeure, this will not be found in any internal characteristic or defect in the thing itself, even though its presence was ‘irresistible and unforeseeable’.⁷⁴ On the other hand, after a turbulent period in the mid-1980s, the law has now become settled in allowing a gardien’s liability to be reduced on the ground of a claimant’s (p.540) contributory fault,⁷⁵ as it can under the loi of 1998. On the other hand, a defendant to a claim under the loi of 1998 has the benefit of six further, special defences,⁷⁶ none of which apply to the gardien’s liability.

A final point of advantage of liability for the ‘deeds of things’ compared to liability under the loi of 1998 relates to their relative prescription periods, for any claim under article 1384 alinéa 1 must be brought within ten years of the damage being ‘manifested or aggravated’,⁷⁷ whereas any claim under the loi of 1998 must be brought within three years of the time when the claimant knew or ought to have known of the damage, defect and identity of the producer and within ten years of the actual product’s having been put into circulation.⁷⁸

In all, therefore, a person who has suffered physical harm caused by a product is unlikely to wish to claim under the loi of 1998 given the basis of liability, the narrower range of defences and the more generous prescription periods, but is likely to claim damages from its gardien instead. While this is little noticed in la doctrine,⁷⁹ in my view this is only because it is so obvious to a French lawyer as not to need stating.

But what of the position where the person who has suffered damage is himself its gardien? Putting aside the court’s occasional recourse to the doctrine of split garde to enable such a person nevertheless to take advantage of article 1384 aliéna 1,⁸⁰ such a person must look to other bases of recovery. In many cases, such a person will have a contractual claim, since in many situations a person becomes its gardien by means of a contract, notably of sale. Where this is the case, the gardien/buyer can claim not merely against his own seller but against any other person in its chain of distribution,⁸¹ though these rights rest on proof of a ‘defect’ or failure in information and may suffer from the two-year prescription period which replaced the bref délai.⁸² In this situation, therefore, a claimant may have more reason to claim damages under the loi of 1998 rather than under the law of sale.⁸³ A similar position obtains where a person acquires la garde from its owner under a contract of hire,⁸⁴ where the bases of liability are close to those of the seller.⁸⁵

However, contract law has a second significance for the ambit of liability for the ‘deeds of things’, as the rule of non-cumul prevents a claimant from relying on it where otherwise his contractual partner would count as its gardien.⁸⁶ For example, if a person is injured at a fairground when the ride which he is taking malfunctions, he cannot claim damages against the fairground operator as gardien of the ride but only on the contract.⁸⁷ In this way, contractual obligations de sécurité again become relevant to the pattern of liability, for in many types of contract where liability for the safety of the other party to the contract is set neither by its terms nor by legislation, the courts have set it by finding such an obligation.⁸⁸ Where a party to a contract suffers physical (p.541) harm (whether personal injury or damage to property), is he likely to claim damages from his contractual partner under an obligation de sécurité rather than (or as well as) from one or more of the defendants under the loi of 1998? This question is difficult to answer in the abstract, as the courts have varied the content of obligations de sécurité from the original strict model (obligation de résultat) applied to contracts of carriage to one which requires proof of lack of care (obligation de moyens), with a number of gradations in between, such as obligation de résultat atténuée and the obsolescent obligation de sécurité modelled on the Product Liability Directive in the 1990s which required proof of a defect of safety.⁸⁹ However, it can generally be said that where an injured person enjoys the benefit of an obligation de sécurité de résultat, he will have little incentive to claim under the loi of 1998: for his injury demonstrates that the ‘result’ of the safety obligation is not achieved, and so liability ensues subject to the defendant establishing force majeure or contributory fault in the claimant.⁹⁰ And contractual claims of this sort enjoy a prescription period of ten years.⁹¹

In all, though, the possibility of an obligation de sécurité being less strict than liability for the ‘deeds of things’ and the relatively short time period governing liability under the garantie légale in sale means that an injured person may be in a better position if not party to a contract, either in terms of the basis of liability or the prescription period or both. In sum, where an injured person is able to claim under article 1384 alinéa 1, under the garantie légale in sale or under an obligation de sécurité de résultat, these are very likely to be more attractive bases of liability than the loi of 1998; but where an injured person’s claim lies against a person liable only under an obligation de moyens or on the basis of proven delictual fault (for example, against the product’s designer or repairer),⁹² a claim under the loi of 1998 becomes more attractive.

The general patterns of French administrative law governing liability for products are more difficult to discern. While French administrative law, like its private law, distinguishes between liability for faute and liability sans faute, the treatments and distinctions underneath these headings look very different and are much more contextually sensitive.⁹³ Certainly, two of the key features of the private law treatment of liability for products are missing: first, there is no liability for the ‘deeds of things’ in French administrative law and its superficial counterpart in liability sans faute for dangerous things and activities on examination has only a very minor role to play in the modern law;⁹⁴ and, secondly, the distinctive law of administrative contracts has little to say about liability for products.⁹⁵ Nevertheless, two broad observations can be made at this stage.

First, the law of ‘public works’ can sometimes impose liability for a product. So, a person who builds and installs a product in a building which then causes damage (either to the building itself or to a person) can be liable under the law of ‘public works’ subject to satisfaction of the necessary public element.⁹⁶ Of much more significance, however, is that contractors working in a travail public often use products in their work, and when the products cause harm liability may arise in either the contractor or the public body on whose behalf the work is undertaken.⁹⁷ If there is evidence to suggest that the (p.542) product was defective, is a person injured in these circumstances likely to wish to claim under the law of ‘public works’ or the loi of 1998? The answer to this depends on the particular circumstances, as these will determine both the basis of liability (fault, presumption of fault or no fault) and the range of persons who can be held liable. So, for example, if a machine which forms part of a ‘public works’ malfunctions and causes a fire, injuring the claimant or his property, where the claimant is a ‘third party’, he may well wish to claim under the law of ‘public works’ as he will neither have to prove fault in those responsible under this law nor any defect in the machine in question.⁹⁸ Or if a person’s garden is sprayed as part of a public programme to eradicate mosquitoes with a chemical which destroys his plants, that person (again a ‘third party’) may prefer to sue the contractor or public body under the law of ‘public works’ rather than the producer of the chemical alleging that it was defective within the meaning of the loi of 1998.⁹⁹ But if, as sometimes, an injured person has to prove fault in a works contractor in order to recover under the law of ‘public works’, he may well prefer to claim instead that a product which was used in the course of the works and which caused his injuring was ‘defective’ under the loi of 1998(see above, pp. 125–6).

Secondly, claiming under the loi of 1998 is relatively more attractive than claiming under the general law of administrative liability which rests on proof of fault and in particular as regards cases alleging a failure in the administration properly to supervise the safety of a product manufactured or distributed by a person whose own liability is governed by private law. For while the Conseil d’Etat has provided a relatively liberal basis of liability in these circumstances—moving from faute lourde to (or at least towards) faute simple—a person injured in these circumstances is likely to wish to sue the private law person instead, both as a matter of the basis of liability and owing to other features of the two types of liability in their jurisdictional settings.¹⁰⁰ Liability in the administration for failure in product supervision will not, therefore, attract liability away from the Directive’s defendants liability under the loi of 1998, except in cases where there is a problem with the ability of the Directive’s defendants to pay the sums required to discharge their liability (when a public defendant’s deep pockets come into their own) or where there is a symbolic or even political significance for wishing to achieve a court ruling imposing “responsabilité” on the administration for its actions, as in the affaire du sang contaminé.¹⁰¹ On the other hand, in those special cases where the Conseil d’Etat imposes liability sans faute in respect of the use or supply of products, a person may still prefer to sue the administration rather than the Directive’s defendants. However, the clearest example of this was found in the law governing the use and supply of medical products in public health care, an area of liability reworked in 2002 both for administrative and private law and generally returning liability to a basis of fault.¹⁰²