comparative product liability law

Comparative Product Liability 1

Prof. George ConkAdjunct Professor and Senior

Fellow, Stein Center for Law & Ethics

Fordham Law [email protected]

Product Liabilityspring 2014Comparative Product Liability Law


China – Revised Tort Code 2010 第四十一条　因产品存在缺陷造成他人损害的，生产者应当承担侵权责任。 41. If a product defect exists causing

harm to another person, the manufacturer shall bear tort liability.


Thalidomide Withdrawn 1961


Council Directive 85/374/EEC of 25 July 1985 on the approximation of

the laws, regulations and administrative provisions of the

Member States concerning liability for defective products

EU Product Liability Directive


EU Directive Proposed 1976, Adopted 1985, as amended

The producer of a product is

liable for damages caused by a

defect in his product.


Definitions "product" means all movables except

primary agricultural products and game, even though incorporated into another movable or into an immovable.

“Producer” the manufacturer of a finished

product, of any raw material or of a component part

any person who presents himself as producer by trade mark or name.


Article 6 Defect 1. A product is defective when it does

not provide the safety which a person is entitled to expect, taking all circumstances into account, including:

(a) the presentation of the product; (b) the use to which it could

reasonably be expected that the product would be put;

(c) the time when the product was put into circulation.


Article 6 Defect

2. A product shall not be considered

defective for the sole reason that a

better product is subsequently put

into circulation.


Article 7 State of the art defense

e) that the state of scientific and

technical knowledge at the time

when he put the product into

circulation was not such as to enable

the existence of the defect to be

discovered; or


Article 7 Component defenses

(f) in the case of a manufacturer of a

component, that the defect is

attributable to the design of the

product in which the component has

been fitted or to the instructions

given by the manufacturer of the

product.


Limitation of actions Member States shall provide in their

legislation that a limitation period of three years shall apply to proceedings for the recovery of damages as provided for in this Directive.

The limitation period shall begin to run from the day on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.


English and Wales High Court of Justice, Q.B. 2001

3 All E.R. 289

A. and others v. National Blood Authority


Questions What category of defect is

presented? Should the learned intermediary

defense prevail? What kind of defense is

“avoidability”? What are the relevant

circumstances? Negligence was not alleged – but…


The CPA claims (CPA eff. Date 3/1/88) Those who received blood products

infected by Hepatitis C subsequent to 1 March 1988, notwithstanding that: (i) the Hepatitis C virus itself had not been discovered or identified at the time


The CPA claims (CPA eff. Date 3/1/88) (ii) no screening test to discover

the presence of such virus in a donor's blood was even known of, certainly not available, until Ortho's assay, first publicised in spring/summer 1989


The CPA claims (CPA eff. Date 3/1/88) (iii) not alleged NBA were

negligent in not introducing the screening tests until they did on 1 September 1991. The case which is put is that they are liable irrespective of the absence of any fault, under the directive and the CPA.


Article 6 1. A product is defective when it does

not provide the safety which a person is entitled to expect, taking all circumstances into account, including: (a) the presentation of the product; (b) the use to which it could reasonably be expected that the product would be put; (c) the time when the product was put into circulation.

What are the relevant circumstances?


What is a consumer legitimately entitled to expect?

I shall look at the steps which it is legitimately expectable that a producer in the position of the defendants would have taken, and the period of time which it is legitimately expectable they ought to have taken.


Morris v West Hartlepool Steam Navigation Co Ltd [1956] 1 All ER - Lord Reid '. . . it is the duty of an employer, in

considering whether some precaution should be taken against a foreseeable risk, to weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident does happen, and on the other hand the difficulty and expense and any other disadvantage of taking the precaution.'


Minimum risk or maximum safety Judge Burton: “there is no question of a conclusion

tht the public is entitled to every marginal improvement” in blood safety


The ELISA Assay Test for Hep C May 1988 Chiron announces Hep C

test November 1989 Export licence

granted by FDA May 1990 FDA approves use July 1990 UK ACSVB Comm. Recs

testing subject to the holding of various trials.

January 21, 1991 Ministerial approval

September 1, 1991 introduced throughout England and Wales


Avoidability: if it quacks like fault….

Bearing in mind all the circumstances, including the priority given to the elimination or reduction of PTH. My primary conclusion is that routine screening ought to have been introduced by 1 March 1990.

comparative product liability law

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