European Product Liability A Comparative Study of "Development Risks" in English and German Law

UoM administered thesis: Phd

  • Authors:
  • Marcus Pilgerstorfer


This thesis focuses upon one of the major areas of controversy in the European Product Liability Directive: the so-called ‘development risks defence’ (article 7(e)). That defence exculpates a producer from liability where he can prove “that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered”. Most member states have implemented the defence and it is regularly identified as being part of the balance between consumer and producer interests forming the ‘fair apportionment of risk’ which the PLD has set. The wording of the defence, whilst at first seductively simple, upon examination gives rise to many questions of interpretation. The answers to these will not only determine the true scope of the defence, but in many ways the strictness of the liability imposed by the PLD itself. This study explores these questions using a comparative law lens and by examining how two particular jurisdictions – (i) England and Wales, and (ii) Germany – have implemented and applied the defence and the related concept of defect. Following a brief introduction (chapter 1), and outline of the methods employed (chapter 2), I examine the concepts of defect and DRD as a matter of EU law (chapter 3). After considering the justifications for strict product liability (chapter 4), I then examine the implementation in England (chapter 5) and Germany (chapter 6). In chapter 7, I explore the similarities and divergences in the regimes and conclude that whilst there are significant differences in methodological approach, as a matter of substance a strict application of the defence is achieved in both. I also offer my own observations as to the true scope of the harmonising EU norms, arguing that the DRD is properly regarded as a narrow escape route from liability imposed by the directive and that considerations of reasonableness ought not to affect the assessment of discoverability. Further, the characterisation of ‘defect’ for the purpose of the DRD is rightly identified by the German courts as the underlying risk of harm, rather than the approach apparent from the most recent English case of Gee v DePuy. The law is stated as at 1 August 2018, but where possible subsequent developments have been included.


Original languageEnglish
Awarding Institution
Award date1 Aug 2019