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This product liability case brought against a company that produced a ship cleaning product centered on the warning label for the cleaning product, which had caused a worker's brain damage. Comparison was made between the industry safety standards for the precautionary labeling of industrial chemicals and the text on the cleaning product's container. The wording of the warning section on the container was not prominent to the potential danger of the product. The communication of the dangers that users might encounter were unclear, and the advice about what to do if users got into trouble using it were not conveyed explicitly. The discourse sequencing within the warnings placed the least crucial information before the most crucial and provided no information about what to do to avoid the hazards that the product contained. The plaintiff also rewrote the text of the container to show how it could have been user-friendly and to communicate useful information and prevent further harm.

This chapter looks in turn at the background to the Product Liability Directive and the key decisions of the European Court of Justice in 2002, which declared that its purpose was to effect ‘complete harmonisation’ of the law within those matters that it governs; at the different processes of its implementation in the UK and France; and then at the review and reform of the directive at the EU level. This Directive is a key example of the problems facing legal systems in implementing directives in an area already broadly governed by national law. While some of these problems are shared by English and French law, some are significantly different, stemming in particular from the different roles of legislation in a codified and non-codified system and from the different way in which the central distinctions between public and private law, and between civil and criminal liability, are treated.

This chapter explores the Product Liability Directive’s provisions in more detail, looking at how they have been implemented and interpreted by French and English lawyers. In the case of French law, we still have to rely on la doctrine, given that there are only one or two decisions applying the loi of 1998 itself: the jurisprudence of the 1990s which ‘implemented’ the Directive can be only an approximate guide given its formal basis in other provisions of the Civil Code and its doubtful present status. In the case of English law, there are a handful of decisions applying the 1987 Act, including the important decision in A v The National Blood Authority. There are also two important decisions of the European Court itself in Commission v United Kingdom and Veedfald v Århus Amtskommune.

This chapter attempts to explain how implementation of the Product Liability Directive has affected the patterns of liability within French and English law. It does so under three main headings within each legal system. Firstly, it looks at the impact of the implementation of the 1985 Directive on the legal position of those whose liability for physical harm is governed by the Directive, whether death, personal injury, or damage to property: manufacturers of different types, importers, and ‘suppliers’ (the ‘Directive’s defendants’). Secondly, it looks at how these liabilities relate to the liabilities of other categories of potential defendant within the two systems, being concerned with identifying whom a person who has suffered physical harm (‘the primary victim’ or ‘primary claimant’) is likely to wish to sue when harmed by a product, either as between the Directive’s defendants and other categories of defendant or as well as other categories of defendant. Thirdly, it is concerned with seeing what effect these liabilities in defendants other than those governed by the 1985 Directive have on the practical impact of liability on the Directive’s defendants themselves.

This chapter argues that product liability law does not result in safer products. Because new products pose novel risks, the court's task of assessing innovative products entails more problematic judgments than with assessments of existing technologies. There is no evidence that higher liability awards result in safer products. It is just the opposite because product liability law punishes manufacturers when they innovate and introduce new, safer products.

This chapter discusses Japanese tort law. Topics covered include the development of tort law, general rules of tort law, scope of losses, special provisions on tort liability, joint liability, remedies, and product liability.

This chapter offers more general conclusions to the work as a whole in terms of the relationships between the broad bodies of law under consideration and any lessons to be drawn for the harmonisation of laws in Europe. It discusses the differences between the Product Liability Directive and the Consumer Guarantees Directive; the meaning of fault under English and French laws; the relationship between the interpretation of substantive legal rules, the legal procedure by which they are applied to facts, and the judicial institutions which decide the outcome; the impact of the French and English laws of liability for products from the perspective of administrative law as well as of private law; the connections between legal institutions, legal processes, and substantive laws within Member States; and the European harmonising effect of the two directives.

This introductory chapter first sets out the purpose of the book, which is to investigate how the law implementing two EC directives–the Product Liability Directive of 1985 and the Consumer Guarantees Directive of 1999–relates to and reacts with the surrounding laws of two domestic legal systems, those of England and France, and how these compare. It discusses the category of ‘liability for products’, covering the relative attractiveness of claiming against different defendants and recourse between potential defendants. The chapter then presents the limits of the study and an overview of the subsequent chapters.

This chapter considers forms of liability, which are not labelled ‘strict’, but which can be regarded as ‘stricter than normal’ — instances in which a presumption operates in favour of the pursuer and the onus of proof is reversed, or in which a heightened duty is imposed upon the defendant. Thus, it examines the enhanced fault regimes, which, in both Scotland and South Africa, govern instances of damage to land in place of the strict liability rule of Rylands v. Fletcher in English law. Included, too, is a discussion of product liability in Scotland and Africa — an area where the rules of the two systems do not coincide.

This chapter explores further the involvement of public elements in French law’s approach to liability for products. It starts by explaining how French law distinguishes between different categories of services publics, how this affects the legal position of their recipients, and how this in turn affects the substantive law governing liability in respect of the provision of the public service and its impact on liability for products. The chapter then examines three major examples of public services which have cut across the public and private law divide in French law: the supply of public utilities, transport, and health care.

This chapter departs from the structure of the preceding chapters. Instead of trying to unpack product liability law in search of its underlying commitments, it seeks to provide a strategy of reform consistent with the arguments presented in Parts II and III of the book. It argues that tort allows for significant departures from its corrective justice core, and, more importantly, in doing so is defensible. Tort law is a mixture of markets and morals.

This chapter examines the impact of new health technologies on EU product liability law, with particular reference to risks, markets, and rights. It reveals a lack of uniformity at the Member State level in relation to victims' rights to claim compensation as a result of suffering harm through the use of certain products that are regulated under specific product liability regimes, such as pharmaceuticals and human tissue products. Notwithstanding such lack of uniformity, however, it is shown that the market for new health technologies has not been affected. In addition, reference is made to how risk has been interpreted in the context of the relationship between product safety and product liability legislation.

This chapter explains how administrative law may govern liability for products. It starts by looking briefly at how liability for fault may govern liability for products and explain why the specifically administrative law of contracts has had relatively little impact on it. The chapter then looks at administrative liability for dangerous things and activities and how liability for ‘public works’ relates to liability for products.

This chapter addresses the question of liability in the administration for failures in the organisation or control of product safety. Firstly, it is concerned with the possession by public bodies of powers relating to product safety which give rise to administrative liability. Secondly, the chapter is concerned with the imposition of liability in respect of failures in the exercise of powers of control by a public body over other persons, whether public or private, rather than over its own activities. Thirdly, it is concerned with questions of liability in the administration in respect of the safety of products, rather than their quality. Fourthly, the chapter discusses how the exercise of public powers of safety has influenced the development of criminal responsibility for death and personal injury more widely and, indirectly, the incidence of criminal responsibility of other private ‘decision makers’.

This chapter is concerned with liability in the administration for failures to regulate or control product safety in English law. Firstly, it explains how the sources of power in English administrative bodies relate to their potential liabilities. Secondly, the chapter sets out the recurrent themes which have been used by the courts in their overall decisions in finding or refusing to find a basis for liability in the tort of negligence in public authorities. Thirdly, it examines the types of situation which can arise in relation to the exercise of powers affecting the safety of products, and illustrates how an English court is likely to view issues both of the existence of a duty of care and of breach of duty. Fourthly, the chapter notes the possible impact of a special ‘public interest immunity’ against the disclosure of documents in these sorts of cases in the context of the English litigation brought by the haemophiliac recipients of blood products infected with HIV. Finally, it attempts to relate these approaches in the English law to the French position, which has already been described.

Even before implementation of the Consumer Guarantees Directive, French law possessed six distinct conceptual bases for finding a seller liable to his buyer in respect of failures of safety, quality, or usefulness in the property sold, four of which are contractual, one delictual, and one either contractual or delictual depending on its context. Each of the conceptual bases has a different or somewhat different focus: the quality of the consent of the buyer; the wrongful conduct of the seller; the defectiveness of the property or its implications for safety. Each of them possesses its own conditions of application and effects which make them sometimes more, sometimes less attractive to a buyer, but over the last 40 years or so French courts have been torn between allowing their development and relationship to become a function of these practical features (with particular emphasis on differences in the periods within which claims must be brought) and following juristic views of the conceptual correctness of one or other position. This is why much of the jurisprudence in this area has long looked unsettled, if not actually contradictory: judges apply the law, which yields the outcome that they consider ‘right’ for reasons which do not appear on the face of the legal reasoning which they use. While the position became somewhat more settled after 1993 when the Cour de cassation ruled that latent defects which render property unfit for its normal purpose give rise only to liability under the garantie légale, it became controversial again in the French debates on how properly to implement the Consumer Guarantees Directive. This chapter looks first at the obligations d’information and then at the garantie légale and its rivals.

This chapter reviews the decisions of American courts in resolving product liability conflicts over the last 25 years. It classifies cases into fact-law patterns depending on the parties’ contacts with the involved states and the content of their respective laws, and examines the results courts reached in each pattern, regardless of choice-of-law methodology. The chapter concludes that, unlike in other tort conflicts, decisional patterns in product-liability conflicts are not sufficiently uniform to be recast into predictive rules, and that a court’s choice is more likely to be based on the quantity of the involved states’ contacts rather than on other factors, including methodology.

At a formal level, the English law of liability is at once more unified and more fragmented than its French counterpart. It is more unified because English law does not traditionally distinguish an entirely discrete category of the administrative law of liability any more than the legal system itself recognises a distinct jurisdiction for the disposal of disputes involving public bodies or of a specially public nature. On the other hand, English law is more fragmented owing to the process of ‘individuation’ which has resulted from the steady accretion of ‘implied’ terms for particular contracts and from the disparate nature of its law of torts. This chapter explains how English law has treated the practical issues of liability for products which have already been discussed in relation to French law, and compares and contrasts them. It starts by explaining English law’s framework for the law of torts and breach of contract and then looks at how English law deals with questions of liability in the administration.

Americans file 30,000 product liability suits a year; Japanese file perhaps 100-300. The difference does not lie in legal doctrine: on the substantive law of products liability, the US and Japan are quite close. Neither does the reason lie in any “faults” or “defects” in the Japanese legal system. Instead, Japanese file few products liability claims because they buy mostly safe products. Americans do too, of course, but US procedure encourage meritless demands. Litigation rates are not lower in Japan because the law prevents victims from recovering their damages; Japanese law does not deter valid claims. Instead, rates are higher in the US because the law facilitates efforts by claimants to collect amounts to which they are not legally entitled—because the legal system lets non-victims manipulate the courts to extort payoffs from defendants who did little if anything wrong. Fundamentally, this contrast stems from the same phenomenon identified in Chapter 2: the American system aspires to particularized recovery, and the openness it offers to individualized claims also allows fraud. Japanese courts aim for just “good enough.” That much they provide, and the very simplicity also enables them to block the fraud that plagues the American system