Product liability de-constructed

Abstract

Jane Stapleton's Product Liability' belies its modest title as an apparent textbook of the conventional genre, though the 'Law in Context' label would have alerted the vigilant. While thoroughly covering all details of the subject, its object is more ambitious: to question the justification for the separate regime of liability in terms of its purported or conceivable object(s), both in its main thrust and its boundaries. As such it presents an innovative jurisprudential analysis in terms of modem tort theory, or rather theories, in a highly focused and argumentative manner. To read the book is an exhilarating experience, in which every aspect is subjected to a multi-layered scrutiny, leaving the reader with the impression of having participated in an exhaustive (and, yes, to some even an exhausting) scrutiny. Her use of arguments, buttressed by analogies and illustrations from reported cases and decisions, shows not only an awesome mind but also a mastery of the subject built on the experience and vast literature from AngloAmerican sources. For what is at stake here are the several paradigms of liability: in the US s 402A of the ALI Restatement Second, Torts;2 in the EC the Product Liability Directive 1985 as enacted in the Consumer Protection Act 1987 (UK) and, inter alia, the Trade Practices Act 1992 (Austr). The book is divided into three parts. The first, entitled 'History', traces the evolution of product liability in the US and its reception in the EC Directive. No better account of the progression from the chrysalis of the warranty of merchantability into the full-blown butterfly of tort doctrine can be found elsewhere. Stapleton stresses, perhaps unduly, the 'accident, compromise, muddle and momentum' of the American saga, as if this were not typical of the Common Law process. Not that everyone would agree with all her apertus, challenging as they are. Was it really mysterious that warranty was assumed to be strict or that it ever came to be extended to personal injury? After all, the same happened independently in France. Was it so surprising that early product cases were concerned with manufacturing, not design defects? Did the absence of 'bystander' cases allow reformers to maintain a warranty outlook? That Thalidomide was a product injury, not, like minimata in Japan, environmental, focused attention