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Negligence and the rise of product liability |
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of the concept |
89 by introducing a maximum period within which the infor- |
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mation must be provided. Consideration was given to whether the liability of |
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suppliers should be extended to include defects for which they are responsible, |
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such as defects caused by improper storage or transport. Such an amendment |
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would bring suppliers’ product liability into line with the corresponding crim- |
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inal liability in product safety where suppliers are liable to the extent that their |
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activities affect the safety of the product. However, doing this would effect- |
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ively introduce fault liability into the Directive and conflict with its underlying |
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strict liability rationale. Consequently, this approach has been rejected.90 In |
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practice, such fault-based liability on suppliers already exists under the law of |
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negligence. |
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As regards types of recoverable damage, the Report recommended that no |
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changes be made to the existing Directive. This has ruled out introducing rem- |
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edies for non-material damage, damage to the defective item itself and compen- |
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sation for damages to business property, which, in practice, can be recovered by |
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other means and is likely to be covered by business insurance.91 |
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One final policy issue considered by the European Commission was whether |
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liability should be extended from products as they are currently defined in |
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Article 2 of the Directive to include real estate property. This idea was rejected.92 |
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While the 2001 Report did not support any amendments to the Directive, |
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it did propose some follow-up measures, including the setting up of an expert |
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group on product liability to gather information on various aspects of the work- |
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ings of the Directive.93 It also proposed the launch of a study into whether add- |
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itional steps can and should be taken to further harmonise product liability law |
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by reviewing the continued existence and impact of other national legislation |
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on claims under the Directive94 and to assess whether the medium term aim |
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should be to introduce a common and sole EU-wide system of product liability. |
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Q9 Given that the 2001 Report suggested that the EC Directive is working |
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effectively, consider the advantages and disadvantages of using it throughout |
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the European Union to replace all national legislation dealing with product- |
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related claims. |
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7â Recommended reading
Brahms, M. ‘No fault in Finland: paying patients and drug victims’ (1988) 138 New Law Journal 678
Clark, A.M. ‘The conceptual basis of product liability’ (1985) 48 Modern Law Review 325 European Commission Report from the Commission on the Application of Directive
85/374 on Liability for Defective Products, COM(2000)893 final
89European Commission, Report on Directive 85/374, above n. 68, para. 3.2.7.
90Ibid.â 91â Ibid. para. 3.2.9.
92 |
Ibid. para. 3.2.8.â 93â Ibid. para. 4.1.1. |
94 |
Ibid. para. 4.1.2. |
297 |
7â Recommended reading |
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Griffiths, M. ‘Defectiveness in EEC product liability’ (1987) Journal of Business Law 222 Howells, G. and Weatherill, S. Consumer Protection Law (2nd edn, Ashgate Publishing
Ltd, Aldershot, 2005)
Kirkpatrick, J. ‘Product Liability Law: from negligence to strict liability in the US’ (2009) 30 Business Law Review 48
Law Commission and Scottish Law Commission Liability for Defective Products Law Com. No. 82, Scot Law Com. No. 45 (Cmnd. 6831, 1977)
Miller, C.J. and Goldberg, R.S. Product Liability (2nd edn, Oxford University Press, Oxford, 2004)
Royal Commission on Civil Liability and Compensation for Personal Injury (Cmnd. 7054, 1978)
Schulze, R., Schulte-Nölke, H. and Jones, J. (eds) A Casebook on European Consumer Law (Hart Publishing, Oxford, 2002)
Shears, P. ‘The EU Product Liability Directive: twenty years on’ (2007) Journal of Business Law 884
The law of negligence is discussed at length in any of the standard works on the law of tort. In respect of the development of strict product liability via the EC Directive and its adoption in the Consumer Protection Act 1987, readers are directed to the excellent text Product Liability by Miller and Goldberg. In addition, readers may benefit from reading the text by Howells and Weatherill and the articles by Griffiths, Kirkpatrick and Shears. For current thinking in the EU, readers are recommended to read the Commission’s Report on the workings of the Directive.
Part 4 Chapter 2
Product Liability under the Consumer Protection Act 1987
Contents
1â |
Introduction |
298 |
2â |
Personnel |
299 |
3â |
Meaning of ‘product’ |
305 |
4â |
Defectiveness |
307 |
5â |
Defences |
319 |
6â |
Contributory negligence |
327 |
7â |
Recoverable damage |
328 |
8â |
Limitations on liability |
330 |
9â |
Recommended reading |
332 |
1â Introduction
The Product Liability Directive1 was given effect in the United Kingdom via Part I of the Consumer Protection Act 1987. In passing the Act, Parliament took the opportunity to legislate for both product liability and product safety, reinforcing the indisputable link between the civil law consequences and criminal law liability for defective products. Criminal product safety controls prohibit producers from placing unsafe goods on the market, while compensation under product liability occurs where defective goods have caused injuries to product users. However, this chapter only deals with civil liability under Part I of the 1987 Act, criminal law controls being beyond the remit of this text.
Section 1(1) of the 1987 Act makes clear that Part I of the Act is to be construed so as to comply with the Product Liability Directive. This approach was confirmed in the decision in EC Commission v. United Kingdom2 when it was held that the development risk defence in section 4(1)(e) of the Act must be
1Council Directive 85/374/EC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.
2C-300/95 [1997] ECR I-2649.