Product Liability

Convenor: Simon Whittaker, Oxford
The focus of this study has been the development of the liability of manufacturers, and others in the supply chain, for damage caused by defective goods. The core of the work is liability for personal injury and death; property damage, including damage to the product itself, is also within the scope of the study, but purely qualitative defects fall outside it. As well as the law of tort, the group has looked at the use of contractual mechanisms and of regulations touching on quality. An important question is the extent to which the Products Liability Directive and national legislation passed in its wake brought about real changes within the law towards the end of the period under examination. Given changes in the production and distribution of products, the field is one which developed significantly in the 1930s and particularly since the 1960s. An important aspect of the study has been the influence of models from other legal systems on developments in particular countries.

Outcome

The development of “product liability” as a distinct area of legal regulation is the result of the development of the economy and the desire of the legislator to respond to high profile social events. (It is mainly dated to the early 1960s.) The key change is the development of industrial production, resulting in items being sold through distribution chains in which the skill and judgement of the seller and the buyer are severely restricted. The traditional legal techniques were the warranty against latent defects in contract, and fault in tort. The former became problematic when the purchaser could not really be expected to inspect the goods and judge whether there was a defect, and where the ultimate victim was someone other than the purchaser (either a member of the family or a sub-purchaser). Assuming the professional seller was expected to know the quality of his goods helped to ground a stricter liability, and wider rules of privity helped to extend the scope. But the contractual route was typically limited in time, because the purchaser was supposed to repudiate the contract within a short time. Delict offered a more promising route. The control over quality and marketing exercised by the manufacturer make this level in the process the focus of attention. Three responses emerge: (a) Regulation of product safety as a major legislative response (principally to high profile “scares” and “incidents”). This starts in the US (1905), France (1907), England (1909), but expanded particularly after Thalidomide (1960) and Colza Oil (1980). (b) Reversal of the burden of proof of fault became a way of making it easier for the victim to recover (France 1954, Italy 1964, Germany 1970, Netherlands 1973). (c) Strict liability (though this was relatively limited outside France before the European Directive). The European Directive 1985 has provided a more uniform solution, but reduces the protection in some countries.