Country:

France

Court:

Cour d'appel de Toulouse, 7 november 2000

Topics:

Notion of Defect

Proof of Defect

Tyre

Car accident

Facts:

The defendant company, which owned a garage and service-station based at a Toulouse supermarket, replaced the rear tyres of the claimant's car with new tyres made by Firestone. 12 days later, during which the car had covered 180 kilometres, the left rear tyre exploded, the claimant's car became uncontrollable, left the road and ended up in a ditch.

The claimant sued the defendant for the loss caused. At first instance, the Tribunal d'Instance de Toulouse held the defendant liable for the accident. The defendant brought an appeal against that judgment and requested that the court order a supplementary expert report (expertise) to examine the causes of the accident.

Legal questions:

Were the elements of an action under Article 1386 et al of the Civil Code (Product Liability) made out in the instant case? Was the defect proven to the requisite standard or was it necessary to undertake a supplementary expert report to examine the causes of the accident?

Decision:

The Court of Appeal initially referred to a number of expert reports undertaken to determine the causes of the accident. The Court referred to the expert report of a Monsieur Enjalbert undertaken on behalf of the claimant's insurer which indicated that the accident was caused by low pressure in the left rear tyre, but that the causes of the reduction in tyre pressure were not clear. Monsieur Debris, a specialist in cars, who undertook a report on behalf of the defendant's insurer stated that the tyre did not have traces of an impact with an object on the road and that it would seem that the cause of the bursting of the rear tyre and thus the accident was a "vice caché" (latent defect) in the tyre. He concluded that the defendant was liable but that a recourse claim could possibly be made against Firestone. In a subsequent second report, Monsieur Debris concluded that a lack of airtightness in the tyre, invisible to the naked eye, was the cause of the progressive reduction in the tyre pressure. He referred to a possible defect in the structure of the tyre or a slow puncture. He thus reiterated in the report that the cause of the accident was the low tyre pressure, but that the reasons for the loss of pressure were at that stage still uncertain. A closer analysis of the tyre by a specialised technical laboratory was necessary to determine the exact cause of the lack of airtightness.

The Court concluded that the defendant was liable on the basis of the product liability provisions under Article 1386 et al of the Civil Code, as the necessary conditions were made out: the occurrence of the accident was accepted by all parties, the lack of airtightness of the tyre was established, as was its role in the occurrence of the accident, and the defendant was a professional supplier who had sold the tyre.

The Court also rejected the request for a supplementary expert report (expertise) to examine the causes of the accident. It held that the blow-out of the tyre was the cause of the accident, and that this bursting was caused by low tyre pressure and /or lack of airtightness. The Court held that "the finding of liability of a professional who has supplied a defective product is not subject to the establishment of the exact origin of the defectiveness of the product nor subject to the proof, which is almost impossible for the client to prove in the instant case, that no other external cause had played a role in the defectiveness of the product, since three successive examinations by two different experts had not been able to explain the explosion of the tyre in such a way as to exculpate the distributor nor establish the sole fault of the client."

Comments:

This decision has been remarked upon by many commentators. It has been approved by Professor Geraint Howells, who has argued in favour of the courts adopting an "abstract" interpretation of the notion of defect: "the concept of defect should be read as a more abstract one taking into account factors other than the product's condition. The fact a product does not provide the standard of safety legitimately expected should not merely be evidence of possible defectiveness, but should be considered as being a defect in its own right." Professor Howells thus approves of the instant decision, making the broader observation that "Continental courts have been prepared to accept that the mere fact that a product causes harm in an unexpected way can be the basis of liability." (Howells, "Defect in English Law - Lessons for the Harmonisation of European Product Liability" in D.Fairgrieve (ed) Product Liability in Comparative Perspective (CUP, forthcoming).