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.