INCEPTION OF THE PRODUCT LIABILITY DIRECTIVE

HISTORICAL BACKGROUND

From a historical perspective, product liability was traditionally seen in many jurisdictions as merely a concrete illustration of the law of obligations to a specific factual matrix, involving the causing of damage by a product. It was only when the mass manufacture of consumer goods started to occur that sufficient impetus was generated towards the identification of an autonomous area of law. It was only then that practitioners and scholars commenced specialisation in the sphere of product liability. The US was of course at the vanguard of developments, and a word will thus be said of the evolution in the US, as a background to the European context. Professor David Owen records in his leading US treatise on the topic that the consequence of the spread of industrialisation in the 19th century was that by 1900, products ‘cases began to appear with some frequency’. There then followed iconic cases such as MacPherson v Buick Motor Co or Greenman v Yuba Power Products Inc, which ushered in the modern era of US products liability, accompanied by the various Restatements, with Owen noting that the strict liability rule enshrined in §402A of the Restatement (Second) of Torts resulted in the ‘the doctrine of strict products liability in tort, together with a miscellany of secondary principles spread like wildfire around the nation’.

The development of product liability in Europe as a distinctive area of the law occurred much later than in the US. It was not until relatively late in the 20th century, after the occurrence of mass product disasters in Europe, and the realisation that traditional responses of the law were inadequate to deal with such situations, that there was a movement towards products liability as raising distinct legal issues, for which a tailor-made regime for compensation was potentially required. It should be noted that comparative law played a role in this process in certain European jurisdictions, with Gerhard Wagner describing for instance how in Germany ‘product liability was imported from the US, both with regard to the legal problem and its solution’.