Introduction to Private and Public Liability in English Law

SIMON WHITTAKER

DOI:10.1093/acprof:oso/9780198256137.003.0008

Abstract and Keywords

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.

Keywords:   English law, liability law, product liability, French law, torts, contract

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. Thus, a French jurist first looking at the English law of liability would fail to see familiar distinctions, but would see instead many others, cutting here and there across the law in a really rather bewildering fashion. In all this, there is apparently little which would be recognisable as a special law of ‘liability for things’, but there has long been a distinct treatment of product liability, by which is typically meant the law governing the liability of manufacturers and possibly other suppliers for physical damage caused by their products.

It is the purpose of this chapter and the following chapters to go beyond this somewhat opaque series of propositions and explain how English law has treated the practical issues of liability for products which I have already discussed in relation to French law, and to compare and contrast them. I shall start in this chapter by explaining the general framework of analysis of the English law of liability; in the following chapters I shall look at the torts which are significant in relation to the imposition of liability for products and notably the tort of negligence, liability arising from the contract of sale, and liability for products in the context of the supply of private or public services (whether contractual or tortious). As can be seen, this treatment reflects in a very general way the structure of my arrangement of the French material. I shall start by explaining English law’s framework for the law of torts and breach of contract and then look at how English law deals with questions of liability in the administration.