Country:

Germany

Court:

Bundesgerichtsgof, 9/5/1995 - VI ZR 158/94 (Sparkling Water Bottle)

BGHZ 129, 353; NJW 1995, 2162

Facts:

On 27 June 1990 the claimant, a nine year-old girl, went in the basement of her parents' house to get two bottles of sparkling mineral water. When she came back upstairs, she put the bottles on the floor to close the door behind her. Picking the bottles up again, one of the bottles exploded, and the claimant suffered severe eye injuries. She sued the bottler of the mineral water for her medical expensed and compensation of her pain and suffering.

The water was distributed in reusable glass bottles. On their return from customers, the bottles were inspected visually by the defendant's employees while they were still in the plastic cases, to detect any damaged or foreign bottles. The bottles were then cleaned and again inspected by other employees while they were passing by on a conveyor belt. After this, the bottles came into an electronic "bottle inspector" which checked the top and the bottom of the bottles using a special light technique. This procedure was followed by two further manual checks. The bottles were then tested under a pressure of 5 bar, which is 1.7 bar more than the pressure in an ordinary bottle of sparkling water. The bottles are then filled with water, before two further visual inspections take place.

The court of first instance dismissed the claim; the court of appeal rejected the appeal. The Bundesgerichtshof reversed the decisions and remitted the case back for further consideration.

Decision:

The Bundesgerichtshof recapitulated that the taking of evidence had shown that the bottle had exploded either because of a sizable chip at the higher end of the bottle, or because of a hairline crack at an unspecified point of the bottle. Both alternatives, the Court concluded, made the bottle defective.

Liability under the Product Liability Act

1.Manufacturing defect. A visible chip in the glass of the bottle, which led to its explosion, would obviously constitute a defect under § 3 PLA, the Supreme Court said. The defendant could only escape liability if it had shown that the chip had not been present at the time when it put the bottle into circulation (§ 1 II no. 2 PLA, Art 7 (b) PLD). Yet the defendant did not adduce any such evidence.

Even if the bottle had cracked due to an invisible hairline crack, this would constitute a defect under § 3 PLA, the Court went on: "Consumers expect that a bottle of sparkling water has not got any cracks, not even hairline cracks, which cause a bottle to explode. Even if such cracks could technically not be discovered, and thus avoided, consumers would still expect the bottles to be free of such defects. Where a bottle has such a crack, it suffers from a manufacturing defect, even if it was an Ausreißer (the "odd unit" that slips through the best quality control net)."

2.Development risks defense. Even if such an Ausreißer cannot be avoided by application of all reasonable care, the Bundesgerichtshof held, they did not qualify as defects in the sense of Article 7 (e) of the Product Liability Directive and § 1 II no. 5 PLA, i.e. as defects that cannot be discovered by means of the scientific and technical knowledge at the time when he put the product into circulation. "It is the purpose of those provisions to exclude liability only for development risks," the Court reasoned. The Court made clear that:

"Development risks were only present in those cases in which the harmful characteristics that caused the damage could not be discovered by scientific and technological means at the time of circulation of the product ... Development risks are only dangers that emanate from the design of a product, but not defects which cannot be avoided during the manufacturing process. There was agreement at during the works on the EC-Directive on Product Liability that only design defects but not manufacturing defects would qualify for consideration under Art. 7 (e)."

3. Preliminary reference to the ECJ: The Bundesgerichtshof refused to refer the case to the ECJ for a preliminary reference. The present case, the Court reasoned, was not about the interpretation of the term "state of the scientific and technological knowledge". The present case concerned the question if and to what extent the German legislator had made use of the option in Article 15 (1) (b) of the Product Liability Directive to hold manufacturers liable in exemption to Article 7 (e). This, the Court concluded, was a matter for the national courts. Referring to the acte clair doctrine of the ECJ, the Bundesgerichtshof added that the finding that Article 7 (e) did not apply to manufacturing defects was not controversial.

Liability in negligence

The Bundesgerichtshof also reversed the judgment of the Court of Appeal as far it denied compensation for pain and suffering in negligence. According to the Court of Appeal, the claimant had not proven that the defect had already been present at time of circulation, which was a necessary condition in negligence. The Bundesgerichtshof, however, said the Court of Appeal had not fully considered under which conditions it was for the defendant to prove that the defect hat not been present at the time when the product came into circulation. This was the case where the manufacturer, due to intrinsic, particular risks in the manufacturing process, has a duty to ensure the safe state of the product before it leaves the premises, and breaches that duty. The Bundesgerichtshof criticised the Court of Appeal in this context for failing to take evidence on the claimant's allegation that the pressure test which the bottles underwent before being refilled was insufficient. For a reversal of the burden of proof regarding the time of the defect it was sufficient, that adequate control measures would have reduced the risk of a manufacturing defect.

The Bundesgerichtshof further questioned whether the other quality control measures of the defendant were sufficient. The electronic bottle inspector did only test the neck of the bottle and the bottom. That meant that a significant part of the bottle could only be inspected visually by defendant's employees. The Bundesgerichtshof acknowledged that the bottles underwent several visual tests, prior to and after refilling, before they left the factory. However, if visual inspection was the only way of testing the bottles, then, said the Court, every single bottle had to be inspected individually. Yet, given the fact that about 15.000 bottles were refilled every hour, it was quite unlikely that every single bottle had been checked individually, for this meant that each employee had to check four bottles per second.

Comments:

The Bundesgerichtshof in this case lays the ground for the trifurcation of the concept of defect under the Product Liability Directive. The fact that the development risks defence in Article 7 (e) only applies to design (and instruction) defects means that only manufacturing defects are governed by a real strict liability system. Design and instruction defects on the other hand describe a depersonalised form of enterprise negligence with a reversal of the burden of proving the foreseeability of the danger.

Even if there are good reasons for the line of the Bundesgerichtshof, it is regrettable that the Court did not refer the case to the European Court of Justice for a preliminary decision. It is quite implausible to maintain that the question whether or not Article 7 (e) applies to manufacturing defects does not concern the interpretation of Article 7 (e) but the question if and to what extent the German legislator had made use of the option in Article 15(1) (b). But the argument that Art 15 also allows Member States to decide to what extent the legislator had made use of the option to exclude the development risks defence is simply wrong. The European Court of Justice has recently made clear that although member states can chose whether or not to implement the development risks defence, they cannot determine the conditions under which it applies (Case 52/00 Commission v France).