Mikio SEKINE
*Attorney at Law, Osaka Bar Association
Defective Automobile/
driver's “misuse" or “other causes"
Mikio SEKINE*
INTRODUCTION According to the statistics from “immergency call" which was exercised by Japan Bar Association and/or consumers organizations, the highest complaints from consumers were related to cars and electric home appliances. Especially many cases of injury due to the wildcat car beyond control during the driving were reported.
But it is tremendously difficult to identify the defectiveness of cars and to make enough compensation for the injury occured. It is no exaggeration to say that it is impossible to testify the manufacturer's negligence and the defective car, because of the difficulty of the proof for causality between the accident and the defectiveness. Year by year, the car structure became a complicated mechanism and the driver should make evidence for the defectiveness by himself despite it's possibility of foreseeing. So, the real situation related to the defective car is that the driver may give up a lawsuit, or that even in a case the plaintiff may not win his suit.
Japan's Product Liability Law was passed in June 1994 in the Parliament so that the plaintiff do request only to point out the defectiveness without testifying evidence of the negligence. Nevertheless, the case related to the cars may be running against a thick wall due to the following reasons.
MISUSE(1) The constant debate in car accident is whether the accident was caused by the defective car or by the misuse or operational mistake (**) of the driver.
**The concept of the “misuse" and “operational mistake" may be different. “Mosuse" shall be difined as the use that manujfacturer should not rationally expected, while “operational mistake" the reckless operation, thinking nothing of the consequences. Therefore, the case that the driver step on the aceelerator instead of the brake does not signify the “misuse" but the “operatiopnal mistake".
Taking an example of the car accident: a car was suddenly beyond driver's control and a pedestrian was hit by the wildcat car. In this case, the driver insist that despite stepping on the brake hard, the car run away suddenly because of the defectiveness, while the car manufacturer insist that the driver did step on the accelerator pedal instead of the brake by mistake.
Taking another example, even if the plaintiff can foresee the defectiveness of spare parts of the car, the car manufacturer insist that the damage of the spare parts concerned was caused by the driver's inappropriate use.
(2) How can we think about this insistence made by car manufacturers about the misuse, with referring to the Product Liability Law?
According to the sub-section 2, section 2 under the Product Liability Law, the defectiveness is defined as follows:
As used in this Law, “defect" means a lack of safety which ordinarily the product should provide, in consideration of the characteristics of the product, the use of the product which could ordinarily be expected, the time that the manufacturer or the like delivered the product, and other circumstances relating to the product.
According to the definition, if the driver stepped on the accelerator instead of the brake, he made a driving mistake. And the driver shall make evidence that he did not step on the accelerator but on the brake through the traces on the road or the site situation. Because the plaintiff has the responsibility to testify the defectiveness. If he can not testify it, the plaintiff can not win the suit. If he can testify it, he can testify the existence of the defectiveness, and moreover he must identify the reason of “beyond control" that may be tremendously difficult because of the “black box".
In the recent case of the defective TV, the court judged that the plaintiff did not need to testify the cause of defectiveness. And if the plaintiff proves that he does not do the misuse, one can deduce that the cause of defectiveness is existing somewhere, even though he can not identify the cause, and that the defectiveness is existing because of the sudden runaway of the car beyond “the use of the product which could ordinarily be expected".
As against the demonstration from the plaintiff, the car manufacturer with to try arguing against presumption of cause of the defectiveness through non-existence of the cause of defectiveness and to try testifying the non-existence of defectiveness. And then, concerning the damage of the spare parts comcerned, car manufaturer with to argue that the damage was caused by driver's inappropriety of use.
According to the existing law, the demonstration that the plaintif used the car appropriately is not enough to prove, but the law request that the plaintiff should testify that the damage was caused by the defective car.
And according to the new Product Liability Law, we suppose that the plaintiff shall testify only that he was driving the car with “the use of the product which could ordinarily be expected". If this demonstration will be successful, the damage of the spare parts shall be caused by the defectiveness, in other words, he need not to prove the cause of the damage of the spare parts.
OTHER CAUSES(1) We can not neglect the other causes in the case of the defective cars.
Taking an example, we have had a case of the car which was exploded suddenly. Or in the past judicical precedent, there was an accident in which two children were burnt to death, while their father left the car 3 to 5 minutes. In this case, the plaintiff demonstrated that there was the defectiveness in electric wiring. But the car manufacturer, denying the defectiveness, demonstrated that the children might light the match in the car. And the court gave a decision that the judge could not deny both possibilities, in other words, the plaintiff could not win the suit due to the dubious causality. This case may be controversial, but this case shows that the plaintiff must demonstrate the non-existence of other causes in the defective cars.
(2) Who shall take responsibility for demostration of the other causes under the Product Liability Law among plaintiff and defendant?
In the same way as the combution of TV, we can presume that the ignition of the car means the defective car. So, we can presume also that the manufaturer shall demonstrate the existence of other causes as non-existence of the defectiveness.
CONCLUSION We can not deny the difficult judicial technical problems in terms of the demonstration of the defective car, due to the factors such as complocated mechanism, misuse and other causes.
Therefore we shall look after a fair and independent institute to clear up the cause together with the information disclosure (magnitude of the order to submit the neccessajry documents as well as legislation of the Information Disclosure Law and so forth).
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