Comment on ‘Development Risks: Unanswered Questions’
approach of the Directive and equates it with little more than negligence liability.30 The Court of Justice has not resolved the problems with the defence itself. Indeed, the Court has increased confusion whilst trying to be helpful: the importation of an accessibility test for scientific and technical knowledge must be associated with a reasonableness test and the 'most advanced level of knowledge' test raises more questions than it answers. These attempts at clarification merely serve to illustrate the difficulties which are inherent in the defence itself. There are several ways in which the meaning of the defence remains elusive. Only further litigation will help to clarify its meaning and who is to bear the risk of unknown defects. The continuation of such arguments will do nothing to achieve acceptance of a fair balance of the apportionment of risks, but will merely destabilise the Community by failing to provide both consumers and producers with a defence whose meaning is sufficiently clear to avoid extensive litigation.