The Patterns of Liability simon whittaker

DOI:10.1093/acprof:oso/9780198256137.003.0018

Abstract and Keywords

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.

Keywords:   Product Liability, liability law, French law, English law

In this chapter I shall attempt to explain how implementation of the Product Liability Directive has affected the patterns of liability within French and within English law. I shall do so under three main headings within each legal system.¹

First, I shall look 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’). Nearly 20 years after the enactment of the Product Liability Directive it remains difficult to state this with complete certainty as regards either French or English law, partly owing to unsettled issues of interpretation of the Directive itself, but partly for other reasons which differ between the two systems.

Secondly, I shall look at how these liabilities relate to the liabilities of other categories of potential defendant within the two systems, being concerned to identify 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. In order to do so, I shall set out the general position or positions if they exist (whether in public or in private law) drawing on the earlier chapters of this work and then look at some important contexts in which these general frameworks are exemplified, are qualified, or where different patterns are found.

Thirdly, I am concerned to see 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. If someone other than a Directive defendant is held liable for the harm, where will the burden ultimately lie (putting aside for this purpose the role of liability insurers)? This requires a closer look at the rules governing ‘solidarity’ or joint liability in the two systems, the legal bases of claims for contribution and the apportionment of liability between ‘co-authors’ of the same harm. Again, I shall look at these questions in both systems, explaining any differences between the public and private laws. In this way, I hope to see (at least in part) whether or not liability is indeed channelled towards the producer of a defective product or whether instead the liabilities of other persons have a magnetic effect, both attracting liability and then at least partly retaining it.