2021-07-19 19:03:15
Directive 85/374/EEC – the Product Liability Directive – was designed to harmonise product liability laws across what is now the EU. In the UK, this gave rise to the Consumer Protection Act 1987. Under the Directive and the Act, liability for defective products is strict and a claimant does not have to prove negligence. The question of liability under the Directive in a healthcare context came before the Court of Justice of the European Union (ECJ) recently in VI v KRONE – Verlag Gesellschaft mbH & Co KG (C-65/20)
An advice column in a newspaper owned by KRONE was written by an expert in herbal medicine. According to the article, fresh, coarsely grated horseradish applied to the skin for two to five hours could help alleviate rheumatic pain. However, there was a misprint in the article and the length of time for applying the horseradish poultice should have been given as two to five minutes. An Austrian citizen who applied a horseradish poultice for two to five hours claimed to have experienced severe pain due to a toxic skin reaction. She sued the newspaper owner, claiming that the owners were liable under the Product Liability Directive. The Austrian court referred the case to the ECJ.
The ECJ held that, for the purposes of the Product Liability Directive, a “product” meant something “movable” that was industrially produced or which was used in the construction of something immovable. The Directive did not cover services. The ECJ drew a distinction between the newspaper – the physical item – and the advice it contained. Advice was not part of the inherent characteristics of the printed newspaper and inaccurate advice fell outside the scope of the Directive so that neither the publisher nor the printer nor the author could be held liable under the Directive. The ECJ observed that, depending on the applicable domestic law, liability could still arise if there were a contractual obligation such as a warranty, or there if was a relevant tort.