Comparative Catalyst Seminar - "Against Strict Product Liability"

This new seminar series has been created to give academics working on difficult new topics a chance to test out ideas through discussion with lawyers experienced in more than one legal system. The aim is to give new insights and ways of looking at the law and legal reasoning, inspired by the best of multiple legal systems. The IECL hosts the seminar as a chance to harness the on average ten or more legal systems' worth of expertise sitting at any one time in the Institute.

Sandwich lunch is provided for those arriving at 12.30.

In this paper I argue that the experiment with strict product liability in tort has been a failure, and that Parliament should take the opportunity afforded to it by the UK’s withdrawal from the European Union to repeal Part I of the Consumer Protection Act 1987. The argument I make for repeal of the 1987 Act is primarily grounded on the conclusion that the justifications that have been put forward for imposing strict tort liability for damage caused by defective products do not hold up to scrutiny. There is, however, a second string to the argument, which is that the imposition of strict product liability in a tort system primarily based on fault requires lines to be drawn that were always hard to justify and which technological change is making unsustainable. The paper is divided into four main parts. In the first part, I consider the differences between negligence liability and the strict liability regime established by the 1987 Act. In the second part, I set out the difficulties to which strict product liability has given rise. In the third part, I identify the principal arguments that have been made for strict product liability in tort and subject them to critical examination. My conclusion is that none stand up to scrutiny. And in the final part of the essay, I consider various mitigating measures that could be taken if it were thought necessary to soften the blow of repealing the 1987 Act.