2. English Law

I shall again look first at the impact of the 1985 Directive on the liabilities of producers, importers and suppliers before assessing more generally how these fit into the wider pattern of liabilities in English law and how these are ‘shared’ under the law of contribution or indemnity.

(A) The impact of implementation of the 1985 Directive on producers, importers and suppliers

In common with French law, English law also faces a degree of uncertainty as to the impact of the 1985 Directive, but this rests almost entirely on the proper interpretation to be given to ‘defect’ for its purposes, and, to a lesser extent, the development risks defence.¹⁸⁶ If the court in A v National Blood Authority was right to rule out from assessment of the defectiveness of a product consideration of the avoidability of a harmful aspect of a product and other factors familiar from the ‘cost/benefit’ analysis (p.554) of the tort of negligence, then its impact on manufacturers may be considerable.¹⁸⁷ If, on the other hand, the opposing view (for which I have earlier argued) is ultimately adopted, then assessment of a person’s ‘legitimate expectations’ as to safety will lead to very similar results as assessment of a defendant’s negligence as this is understood and applied by English courts.¹⁸⁸

On the other hand, even if the assessment of ‘defect’ does allow consideration of the sorts of considerations relevant to assessment of negligence in a product’s manufacturer, implementation of the 1985 Directive in English law has changed the basis of liability of ‘Community importers’ and ‘own-branders’ significantly. For, in assessing their negligence at common law, the courts would take into account their very limited abilities to foresee and to take action to prevent any harm caused by the products which they supply; whereas assessment of a product’s ‘defect’ looks at the ‘legitimate expectations’ as to the safety of the product of people generally and (on the assumption which I have just made) their expectations would focus on the ability of a manufacturer to foresee and prevent harmful aspects of the product which relate to its manufacture or design.¹⁸⁹ Once a product is held ‘defective’ according to this test, under the Directive’s scheme it is for the defendant (here, an importer or own-brander) to establish one of the defences allowed by article 7 in order to escape liability.

The position of ‘suppliers’ has also changed in English law after implementation of the 1985 Directive, but here the picture is much more complex.

First, if a person injured by a product was supplied with the product under a contract of sale or of supply (as defined by English law)¹⁹⁰, then he is likely to prefer to claim under the strict terms implied into these types of contract by statute: the liability is certainly as strict, there are fewer defences and, in particular, the supplier cannot escape the national contractual liability by identifying his own supplier or the producer within a reasonable time as he can escape his liability under the 1987 Act.

Secondly, if a person injured by a product was either supplied it in circumstances where English law does not recognise a contract (as in the case of statutory supplies of water or medicines and other health products under the NHS¹⁹¹) or was not himself party to the contract under which it was supplied in this sense, then under the general law he will have to prove the supplier’s negligence in order to be able to recover.¹⁹² Here, therefore, the special liability of ‘suppliers’ under the 1987 Act may be significant, for, as with importers and distributors, the supplier’s liability for a ‘defective’ product would not need the injured party to establish the sorts of elements which would be needed for negligence in the supplier.¹⁹³ On the other hand, again, under the 1987 Act the supplier could escape liability by identifying his own supplier or the producer of the product.

Thirdly, exceptionally, a person injured by a product may sue its supplier on the basis of a tort which imposes liability which is stricter than negligence and where this is the case it may be more attractive than claiming against that person under the 1987 Act. This may be the case where a person supplies a product under a statutory duty whose breach is held to give rise to civil liability, for example, where a person supplies (p.555) a consumer product in breach of a statutory regulation governing its safety or where an employer breaks a regulation under the Health and Safety at Work Act.¹⁹⁴

Fourthly, if the interpretation of ‘supplier’ as a person in the chain of distribution who uses the product is accepted,¹⁹⁵ the significance of the supplier’s liability becomes much more significant, applying to a host of people whose liability is generally based on negligence, whether under the tort of negligence or in contract. So, for example, if an occupier of premises or a carrier of persons ‘supplies’ the products which he uses in his business, then he would be liable for the personal injury, death and damage to consumer property which their defects cause unless these ‘suppliers’ identify their own supplier or the producer of the product within a reasonable time. The practical effect of such a liability would be to impose a duty of record keeping for all those who buy or hire and then use products in the course of their business, sanctionable by liability without proof of negligence.

Fifthly, and related to this, under the Employer’s Liability (Defective Equipment) Act 1969 employers are liable without proof of negligence in themselves where they provide their employees with defective ‘equipment’ which causes personal injury or death in the course of their employment, as long as the defect is attributable to the ‘fault’ of a third party (typically the manufacturer);¹⁹⁶ for this purpose, fault is defined as meaning ‘negligence, breach of statutory duty or other act or omission which gives rise to liability in England and Wales’.¹⁹⁷ But can liability in a ‘producer’ in respect of defective equipment (the ‘product’) under the 1987 Act constitute ‘fault’ with the result that an employer is liable to any employee injured by it under the 1969 Act? This seems to follow as a matter of English statutory interpretation, but it may fall foul of the ‘completely harmonised’ nature of the 1985 Directive’s scheme of liability as set out by the European Court in its decisions of 2002.¹⁹⁸ For employers often ‘supply’ equipment (the product) to their employees in the more narrow sense of transferring possession of it or ‘providing’ it (for example, an employer handing an employee a tool for use at work¹⁹⁹ or a car for use on the employer’s business²⁰⁰) even though a contract of employment is not a contract of supply.²⁰¹ And if ‘supplier’ is interpreted to mean a person in the chain of distribution who uses the product, employers will even more frequently count as ‘suppliers’ within the meaning of the 1985 Directive.²⁰² This being so, it could be argued that as a matter of EC law the Employers’ Liability (Defective Equipment) Act 1969 should be interpreted so as not to impose on ‘suppliers’ within the meaning of the 1985 Directive a liability more extensive than is provided for by the Directive itself. For liability under the 1969 Act imposes liability on employers (‘suppliers’) for defective products (‘equipment’) without the possibility of the employer being able to escape liability by identifying his own supplier or the producer of the product within the scheme of article 3(3).

Finally, apart from these differences based on the way in which the standard of liability of the 1987 Act in the product’s ‘defect’ applies as compared to the standards (p.556) set by the torts of negligence and breach of statutory duty or by the law of contract, there may be particular differences generated by their different incidental effects. In English law, though, these operate very much at the margin, so, for example, any attempted exclusion of liability imposed by the 1987 Act is ineffective,²⁰³ whereas exclusion of business liability for damage to property caused by negligence is subject to a reasonableness test.²⁰⁴ Moreover, while there are minor differences between the operation of the limitation periods applicable to claims for personal injury, death and damage to property generally in English law and under the Directives scheme (though the periods themselves and their starting points are remarkably similar²⁰⁵), the former are not subject to the foreclosure period of ten years from the time of the putting into circulation of the product which caused the harm.²⁰⁶