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49 Managerial L. 6 (2007)

handle is hein.journals/ijlm49 and id is 1 raw text is: The current issue and full text archive of this journal is available at
www.emeraldinsight.com/0309-0558.htm

ML
49,1/2

Id
Managerial Law
Vol 49 No. 1/2, 2007
pp. 6-9
© Emerald Group Publishing Limited
0309-0558
DOI 10.1108/03090550710759621

VIEWPOINT
Is product liability still a global
problem?
Duncan Fairgrieve
British Institute of International and Comparative Law, London, UK, and
Geraint Howells
Law Lancaster Law School and Barrister Gough Square Chambers, UK
Abstract
Purpose - Almost 20 years ago one of the present authors wrote an article entitled Product liability:
a global problem. The brief paper seeks to provide a summation of what has happened in the
meantime.
Design/methodology/approach - The article is a brief discussion of the issues: the first section
comments on products liability outside Europe and the final part concludes with an overview of what
happened in the UK and Europe.
Findings - The article finds that the EU Directive's approach to strict liability has become the most
common influence on law reform around the globe and that there is still much uncertainty in Europe
and the USA as to what the law of product liability actually is.
Originality/value - The paper illustrates how, for the foreseeable future, businesses may continue
to be most concerned about product liability exposure in the USA.
Keywords European directives, European Union, Product liability
Paper type Viewpoint
Almost 20 years ago one of the present authors wrote an article for this journal entitled
Product Liability: A Global Problem[1]. That was at a time when the UK had just
implemented the Products Liability Directive[2] by providing for strict liability in Part
1 of the Consumer Protection Act 1987. This brief paper seeks to provide a summation
of what has happened in the meantime. The final part concludes with an overview of
what has happened in the UK and Europe, but the first section comments on products
liability outside Europe.
The first observation is that the Directive's approach to strict liability has become the
most common influence on law reform around the globe. It is of course mandatory now
in 27 European countries that comprise the enlarged European Union, but its influence
has been felt beyond that in South America and the Asia-Pacific region. This European
influence is perhaps surprising given that US products liability law is the most developed
products regime. One suspects that the headlines generated by some product liability
actions in the USA have given it a bad press and made legislators afraid of adopting
similar substantive rules for fear of fuelling a litigation explosion. In truth, however, the
American context is unique. Its tort system has to cover high medical costs, allows for
punitive damages, uses jury trial, readily allows contingent fees and does not have a
loser pays cost rule. The absence of many of these features in other jurisdictions means
that product liability is not likely to have the same impact. Moreover products liability is
brought into accident claims in the USA that in the UK at least would be dealt with as
workers' compensation claims. In the next section, however, we consider how the USA's
substantive regime itself has become less claimant friendly.
Back in 1988 strict products liability was dominated by s 402A of the American Law
Institute Restatement (Second) of Torts (1965), which provided that:

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