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Country:

Germany

Court:

Düsseldorf Court of Appeal, 20/12/2002 - 14 U 99/02 ("Mars Bar")

Topics:

1. Causation.

2. Concept of defect.

3. Design defect; compliance with food law, compliance with standards and regulations; socially accepted risk.

4. Instruction/warning defect; socially accepted risk; knowledge of the typical consumer.

Facts:

In 1998 the claimant was diagnosed with diabetes mellitus type II b. He subsequently sued Masterfood and, in a different action, Coca-Cola, claiming that consumption of their products, in particular "Mars" and "Snickers" chocolate bars, had caused his disease. The claimant alleged that he had regularly consumed the defendant's chocolate bars and soft drinks since childhood. In the last four years before the diabetes was diagnosed, he consumed at least two chocolate bars and one litre of Coca Cola on every working day, to release the stress his job as a judge had caused him. The action was brought under negligence and on the basis of the German Product Liability Act (PLA).

Decision:

The Düsseldorf Court of Appeal confirmed the first instance decision and dismissed the claim. There was insufficient evidence, the Court said, that the chocolate bars had caused the claimant's diabetes, nor were the chocolate bars defective.

1. Causation. The Court of Appeal stated that causation, both in negligence and under the PLA, was a matter of national law. The first test for causation under German law was the principle of condition sine qua non (which conforms to the "but-for-test" under English law). Under the German rules of civil procedure, this normally required the claimant to prove, with high possibility, that the damage would not have occurred but for the negligence of the defendant, or the defective product, respectively. Only where certain events typically led to a particular form of injury or damage could the claimant rely on a prima facie evidence. The principle of prima facie did not, however, apply in the present case, as it was exactly the question whether there is, in general, a causal link between excessive consumption of sugar and diabetes mellitus type II b.

The Court went on to say that causation is, on a first step, a matter of science. The claimant had initially conceded that the relevant scientific opinion in this field, until he filed his action, had been that there was no concrete evidence of a causal link between high levels of sugar and diabetes mellitus type II b. Only in his appeal did he allege that the accepted scientific opinion was now that there was such a link. The Court stated that any change in scientific knowledge after 1998 was irrelevant as it concerned the time after the damage had occurred. Yet whether there was indeed any such causal link could be left open as the chocolate bars were not defective.

2. Concept of defect. The Düsseldorf Court of Appeal confirmed the prevailing view amongst German courts that it is to be distinguished between manufacturing, design and instruction defects. It impliedly extends this view to the application of the notion of defect as included in the Product Liability Directive. The present case, the Court concluded, only raised the questions whether the chocolate bars were defectively designed, or whether the defendant had failed to warn consumers of the dangers of excessive consumption of sugar.

3. Design defect. The chocolate bars were not defective in design, the Court held. The applicable food legislation and regulations did not prohibit or limit the use of sugar and cocoa. The Court made clear that compliance with product safety legislation and regulations did not in itself preclude the finding of a design defect. However, compliance with all relevant product safety legislation and standards was indicative of the fact that the product was as safe as could be legitimately expected.

The claimant could not establish that one was entitled to expect more than is already included in the relevant legislation, i.e. that one would be entitled to expect that sugar and cocoa were not, or only to a lesser extent, used in chocolate bars. The risks of the consumption of sugar and cocoa were widely known and generally accepted. A typical consumer knew that excessive consumption of sugary products could lead to severe health problems, in particular obesity. The Court stressed that it falls within the responsibility of each consumer to decide whether he or she wants to follow a balanced diet, or to choose a diet with a focus on the "pleasure of eating". Manufacturers on the other hand were under no obligation to design food products so as to maximise their health benefits. For example, they were not bound to reduce the level of fat in sausages, use whole wheat instead of white flour, or preserve the level of vitamins during the food processing process.

4. Instruction defect. As to the alleged instruction defect, the Court of Appeal decided that the defendant was under no obligation to include warning notices on the product packaging. Considering the case law of the Bundesgerichtshof in negligence, the Court confirmed that the producer not only needs to warn of dangers present in the ordinary use of the product but also of dangers related to any foreseeable misuse. The extent of the duty to warn, the Court added, generally depends on the level and nature of the risk, and the probability of its manifestation. However, a duty to warn only existed in so far as consumers needed to be warned. There was no need to warn of risks that are generally known to its possible users. It compared the present case with the well-known Toddler Tea cases (See, for example, BGHZ 116, 60 ff), in which high levels of sugar in children's tea had caused a serious form of caries if the tea was given in bottles that were left with the toddlers ("baby bottle syndrome"). The present case was different, said the Court, for the typical consumer was well aware of the possible consequences of excessive consumption of sugar. Given the sweet taste of the chocolate bars, their caramel texture and the list of ingredients, the typical consumer could not help but realise that "Mars" and "Snickers" bars contained high levels of sugar.

Comment:

The decision of the Court of Appeal seems sensible. Its remarks as to causation are, however, to be read with care. As far as liability under the Product Liability Directive is concerned, it could be said that causation is a matter of Community law, which requires application of the general principles of causation common to the laws of the Member States. This is particularly so as the question of causation and the question of defect are often intertwined. Yet the result, i.e. lack of causation, would most probably have been the same.

The handling of the issue of defective product design confirms the line of the German courts. The courts here invariably revert to any relevant product safety legislation. Compliance with product safety legislation and standards will indicate that a product is safe. [LINK] Establishing that one is entitled to expect a higher level of safety practically requires proof of a reasonable alternative design. [LINK] There is, however, no reasonable alternative design for chocolate bars as consumers are aware of the risks of sugar and therefore responsible for their own diet.

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