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The adoption of the strict liability scheme for defective products by the European Union Product Liability Directive, and its subsequent transposition through Pt 1 of the Consumer Protection Act 1987, changed the basis on which actions for compensation for damage caused by defective products had been brought for over fifty years. In essence, the change was from a system which required proof of negligence to one in which liability was dependent on proving that a defective product had caused damage. While we shall see that many academics and commentators had originally assumed a critical view of the strict liability regime, considering that in practice liability would be no wider than under negligence, it is now clearly established that, in respect of products supplied on or after 1 March 1988, strict liability under the 1987 Act is the primary cause of action in product liability litigation in the United Kingdom. In many Member States, the effects of the new regime have been very significant indeed.

Before liability is incurred under the Consumer Protection Act 1987, a product containing a defect must cause damage. Section 1(2) of the Act provides a definition of ‘product’. It states that ‘product’ means ‘any goods or electricity and … includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise’. Notwithstanding the short title of the Act, the definition of product is sufficiently broad to have a wider application than merely to consumer goods. For example, disasters resulting from chemicals or aircraft could be litigated under the Act, as could asbestos and other toxic substances which have given rise to much litigation in the United States.

Section 4 of the Consumer Protection Act 1987 provides a number of defences to liability which mirror those provided by Article 7 of Council Directive 85/374/EEC (the Product Liability Directive). By s 1(1), the Act and hence the defences must be construed so as to give effect to Article 7 and consistently with it. The defences cover such matters as:

It has long since been recognized that liability in negligence may be incurred where there has been a failure to warn of a product’s dangerous characteristics and there is no shortage of modern examples to illustrate the point. The lack of a warning or directions for use may also render an otherwise acceptably safe product defective for the purposes of strict liability.

This chapter surveys the development of the products liability law in the United States and in Europe. In particular, it describes the history of products liability law in America, starting from the nineteenth century, and discusses the debates that followed the adoption by the American Law Institute in 1998 of the Restatement Third on Torts—Products Liability. The chapter then charts parallel developments in Europe, and explores how England, France, Italy, and Germany have dealt with products liability claims before and after the enactment of the European Union of the Product Liability Directive in 1985. The chapter tells more than a simple binary story of comparison; it rather tells a story of convergence and divergence on multiple points, taking products liability as one of the most valuable standpoints to understand the dynamics of historical and contemporary tort law developments.

There are generally few difficulties in applying the consumer expectation test of s 3(1) of the 1987 Act to manufacturing or production defects. Thus it can be said that: ‘persons generally are clearly entitled to expect that a product conform with the standard of safety common to the items of a same line of products marketed by a particular manufacturer: an individual product which fails to comply with such a standard because it was not produced and marketed as intended will no doubt be considered defective’. Or to put it another way, in the form of an example, ‘no reasonable or “ordinary” consumer expects to find a snail in a bottle of ginger beer’, or, for that matter, carbolic acid in a bottle of lemonade. Accordingly, when the defect is a manufacturing one the consumer expectation test may be straightforward in its application and advantageous.

There may be major difficulties in determining the types of damage or loss which will be compensated in product liability litigation and this is so whether the claim is based on the strict liability provisions of Pt 1 of the Consumer Protection Act 1987 or the general law of negligence. In some cases it will be clear that the 1987 Act is inapplicable and hence that the standard requirements of the law of negligence must be met or the existence of a contractual claim established. For example, the defendant may not be a person who is potentially subject to liability under s 2 of the Act or the damage may be of a type which the Act does not compensate. Alternatively, a claim under the Act may be barred by virtue of the expiry of a limitation period or, and this is increasingly less likely with the passage of time, because the relevant product was supplied before the Act came into force on 1 March 1988.

The expression ‘product liability’ is usually understood to refer to the civil liability of manufacturers and others where damage or loss is caused by products which fail to meet the standards claimed expressly or impliedly for them or which are dangerous or otherwise defective. Such liability may arise either in contract or in tort and both aspects are covered in some detail in the course of this work. A further aspect which is discussed in less detail involves the use of the criminal law. Relevant provisions may apply either to particular types of product or be of more general application. The former are referred to only in passing whilst examples of the latter include Pt II of the Consumer Protection Act 1987 and other measures concerned with general product safety.