Country:

Germany

Court:

OLG Frankfurt a.M., Decision of 16 February 1995, 1 U 31/94

Topics:

Proof of defect, development risks defence.

Articles:

Articles 6, 7 PLD

§§ 1 II Nr. 5, 3 PLA

Facts:

The claimant consumed a cranberry cake at the defendant's restaurant and shortly after that visit realised that he contracted Hepatitis-A. The chef of the restaurant had prior to the claimant's visit also contracted Hepatitis-A. The defendant was at the time not aware of the fact that its chef had contracted the virus.

Legal questions:

1. What are the requirements for proof defect under §3 PLA (Article 6 PLD)?

2. Does the development risks defence in § 1 II Nr 5 PLA (Art. 7 (e) PLD) apply to manufacturing defects?

Decision:

1. The Court said that the claimant could in the present case rely on a prima facie evidence in order to establish the existence of a defect in the cake. The short period of time between the consumption of the cake and contracting Hepatitis-A, as well as the fact that other guests had also contracted Hepatitis-A after eating in the Restaurant, would indicate that the cake must have been infected with the virus.

2. The defence included in § 1 II Nr 5 PLA (Article 7 (e) PLD) did not, the Court held, apply to manufacturing defects. This defence only intended to exclude liability for so-called development risks, i.e. defects which were not discoverable by use of the scientific and technical knowledge at the time when the product was put into circulation. The Infection of the cake, however, could have been discovered if only the required tests had been exercised.

Comments:

1. The Frankfurt Court of Appeal apparently assumes that the claimant need in general prove the exact nature of the defect in question, i.e. the actual infection of the cake. In accordance with the general rules of civil procedure, the Court allows a prima facie prove of the defective condition. This approach overlooks that Article 6 of the PLD does not as such require proof of the exact nature of the defect. It suffices that claimant show that the product did not provide the safety one is entitled to expect. That in itself can be seen as including a European-wide rule of circumstantial evidence (For extensive discussion of the subject see S. Lenze, Strict Liability for Manufacturing Defects - What Proof is Needed, 11 (2003) European Product Liability Review 37 ff; Lenze, Zum Beweis des Produktfehlers, Produkthaftpflicht International 2003, 242).

2. The fact that the development risks defence does not apply in this case is simply a consequence of a literal reading of § 1 II Nr 5 PLA (Article 7 (e) PLD). The defendant could certainly have discovered the infection if only he had tried to. However, the Bundesgerichtshof goes further and has held that the development risks defence never applied to manufacturing defects, that is, even if the manufacturing defect was not discoverable with proper testing.