The essential components of product liability

In considering the state and nature of product liability, one needs to remind oneself that several different areas need to be examined:

• substantive law on liability

• mechanisms for funding lawyers and court costs, and the extent and proportionality of the financial risk to claimant and defendant

• rules of procedure

• law on damages

• sometimes, conflict/jurisdictional issues such as proper law, jurisdiction and enforcement of judgments.

This is fertile ground for comparative lawyers, which is made more interesting since all of these areas are potentially subject to reform. But one's ardour is somewhat dampened by the consistent evidence that product liability is not a major phenomenon in any EU state. This is also my personal experience over the past ten or so years in handling claims for a number of manufacturers, covering a range of consumer and industrial product sectors, and their insurers, that may arise in any European jurisdiction. One of the jurisdictions that has consistently been most active for individual claims is Russia, where there are unregulated contingency fees, few controls on the accuracy of media statements, and questionable standards in the judicial system.

Substantive law

The rules on strict liability for defective products are relatively stable (Directive 85/374) and firmly implemented into national provisions of member states and applicant states. There has been a small number of instances of incorrect implementation but the Commission and ECJ are well advanced in sorting these out.