ABSTRACT
Chapter 3 compared the provisions, main commentary, and emerging case law in
the ‘strict liability’ regimes in Japan, the EU, Australia and the US. Generally,
however, there are still few reported – and even unreported – judgments outside
the US, and other effects have not been large. In 1995 for example, coinciding
with the European Commission’s first review of the EC Directive, conference
presentations and national reports organized through the Consumer Law Centre
at a Belgian university generally concluded that hardly any judgments had been
reported applying the Directive; instead, manufacturers referred disputes to
ADR and insurers were often called upon. Nonetheless, manufacturers did
appear to be taking more precautions in safety features of goods potentially
covered by the Directive, and to be conducting more recalls, although this impact
‘was not readily quantifiable and also has to be related to the adoption and
implementation of the General Product Safety Directive (92/59/EEC)’ (Goyens
1996: 238). Westphalen (1996: 83, 85) maintained that ‘the German law has not
been “Americanized” . . . The absence of negligence as a prerequisite to the
manufacturer’s liability has had no impact on the case law’, although judgments
under Article 823 of the Civil Code were ‘developing rapidly to the benefit of the
consumer’. In Italy, which had implemented the Directive in 1988, there was
only one reported judgment, from 1993 (Alpa and Stoppa 1996: 79). Mildred
(1996: 49) could find ‘no report of any case pursued to judgment or subject to any
interlocutory ruling where liability under the [Consumer Protection Act 1987]
has been pleaded’, while briefly noting nine claims where the Act seems to have
been relied upon, and more anecdotal evidence of some others.1 Availability and
costs of insurance had not been significantly affected. One assessment of the
overall ‘impact of the Directive on European industry’, based on ‘discussions
with many colleagues in industry, publications and a survey of 88 German
companies’, nonetheless concluded that:
Product quality has improved generally. This is mainly a consequence of
increased competition in the Single Market and of new methods of quality
management, but may also be due in part to product liability. Nearly all
companies examined their insurance contracts. As the insurance industry
provided cover, difficulties did not arise, but some companies felt it necessary
to increase their coverage. Some companies took a new look at the
instructions accompanying their products. Clear information about uses and
misuses of a product can influence the safety expectations of the consumer,
which are relevant for a decision on the defectiveness of a product.