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The recent Representative Actions Directive 2020/1828/EC is a welcome advance in developing collective redress in Europe. However, this article contends that whilst the Directive is a positive development, shortfalls in its design restrict its potentially transformative impact for consumers. Critical examination is made of the Directive's rules on scope, standing, remedies, alternative dispute resolution (ADR), cross-border claims, funding, awareness and the provision of information. The article further considers whether the Directive will serve to improve co-ordination in civil procedure in this area which has traditionally been very diverse at a Member State level.

This chapter discusses the liability of the state. Despite the great differences in constitutional context, administrative law, and procedure, all legal systems have had to address the issue of when compensation should be provided to citizens who have been negatively affected by the activities of the administration. The chapter thus provides an overview of the historical and modern approaches of state liability from a comparative perspective, in a variety of jurisdictions. It then gives consideration to some of the salient issues arising out of this complex area of the law. An addendum is then provided examining the issue of the criminal liability of the state. Particular focus is given to the current state of the existing scholarship on this topic, as well as identifying fruitful themes for future research.

Before or at the time of entering a contract a buyer’s attention will frequently be drawn to statements which relate to the quality and potential of the goods. Such statements may take any one of a number of forms and the way they are classified will have an important effect on the remedies available should they ultimately be found to be false or unsubstantiated. Thus a statement may be no more than a mere ‘puff ’ or a matter of opinion and, as such, it will usually give rise to no liability whatsoever. Alternatively it may constitute a misrepresentation of fact inducing the representee to enter into the contract. The traditional remedy would then be rescission of the contract and an indemnity in equity, damages in the tort of deceit if the statement was made fraudulently, and, later, damages under the Hedley Byrne doctrine if it was made negligently. Within English law the Misrepresentation Act 1967 is now of considerable importance in such cases. Such a statement may also give rise to an estoppel, thus precluding its maker from asserting its falsity as against a person who was intended to rely on it and did rely on it to his detriment. Finally, the statement may be classified as a contractual term. Where this is so the maker will be taken to have warranted or guaranteed the truth of the statement and a remedy will be available without the need to prove deceit or negligence. The precise nature of this remedy (whether repudiation or damages) will depend on the status or importance of the term to the contract. This classification and its legal consequences will now be examined in more detail insofar as it affects the relationship of seller and purchaser. Thereafter it is proposed to discuss the possible application of some of the principles to manufacturers. In this latter context particular reference will be made to the express warranty theory of American law and to the collateral contract doctrine of English and Commonwealth law.

Although this book is concerned primarily with the contractual liability of sellers of goods and with the liability in tort of manufacturers, we include here reference to other persons who may incur liability for defective products. The contractual liability of persons other than sellers has already been noted. Persons other than manufacturers who may incur liability in tort include retailers and persons who hire out or provide services involving the use of a product; donors and gratuitous bailors; wholesalers and importers; those who repair, service, recondition, assemble, install, or carry out work on a product; and probably also such persons or bodies as inspectors, engineers, testing agencies, and endorsers or certifiers of safety or quality. Finally, reference is made to the position of building contractors and builder-vendors. The discussion generally assumes that the claimant is suing in respect of personal injury or perhaps property damage, rather than economic loss simpliciter.

The expression ‘product liability’ is usually understood to refer to the civil liability of manufacturers and others where damage or loss is caused by products which fail to meet the standards claimed expressly or impliedly for them or which are dangerous or otherwise defective. Such liability may arise either in contract or in tort and both aspects are covered in some detail in the course of this work. A further aspect which is discussed in less detail involves the use of the criminal law. Relevant provisions may apply either to particular types of product or be of more general application. The former are referred to only in passing whilst examples of the latter include Pt II of the Consumer Protection Act 1987 and other measures concerned with general product safety.

It has long since been recognized that liability in negligence may be incurred where there has been a failure to warn of a product’s dangerous characteristics and there is no shortage of modern examples to illustrate the point. The lack of a warning or directions for use may also render an otherwise acceptably safe product defective for the purposes of strict liability.

The adoption of the strict liability scheme for defective products by the European Union Product Liability Directive, and its subsequent transposition through Pt 1 of the Consumer Protection Act 1987, changed the basis on which actions for compensation for damage caused by defective products had been brought for over fifty years. In essence, the change was from a system which required proof of negligence to one in which liability was dependent on proving that a defective product had caused damage. While we shall see that many academics and commentators had originally assumed a critical view of the strict liability regime, considering that in practice liability would be no wider than under negligence, it is now clearly established that, in respect of products supplied on or after 1 March 1988, strict liability under the 1987 Act is the primary cause of action in product liability litigation in the United Kingdom. In many Member States, the effects of the new regime have been very significant indeed.

Section 4 of the Consumer Protection Act 1987 provides a number of defences to liability which mirror those provided by Article 7 of Council Directive 85/374/EEC (the Product Liability Directive). By s 1(1), the Act and hence the defences must be construed so as to give effect to Article 7 and consistently with it. The defences cover such matters as

There are generally few difficulties in applying the consumer expectation test of s 3(1) of the 1987 Act to manufacturing or production defects. Thus it can be said that: ‘persons generally are clearly entitled to expect that a product conform with the standard of safety common to the items of a same line of products marketed by a particular manufacturer: an individual product which fails to comply with such a standard because it was not produced and marketed as intended will no doubt be considered defective’. Or to put it another way, in the form of an example, ‘no reasonable or “ordinary” consumer expects to find a snail in a bottle of ginger beer’, or, for that matter, carbolic acid in a bottle of lemonade. Accordingly, when the defect is a manufacturing one the consumer expectation test may be straightforward in its application and advantageous.

The main purpose of this book is to provide a detailed statement of the principles governing the civil liability of manufacturers and others for damage or loss caused by defective products. In this final chapter we refer briefly to some of the main sources which seek to regulate product safety through the use of the criminal law. Of course, many types of products are covered by specific legislation. For example, the sale of food for human consumption and medicines fall into this category. The details fall outside the scope of this work.

The removal of a requirement of proving negligence, which is usually regarded as the distinguishing feature of the system of strict liability introduced by Pt I of the Consumer Protection Act 1987, will in all probability shift the focus of attention to the question of whether the claimant has established that the product is defective. As will be seen, the question gives rise to many difficult issues. Indeed, one writer has observed that ‘the problem of defining defectiveness has exercised the minds of legal scholars perhaps more than any other aspect of product liability law’.

An important characteristic of the terms as to correspondence with description, satisfactory quality, and fitness for purpose implied by ss 13 and 14 of the Sale of Goods Act 1979 is that being designated conditions their breach will prima facie entitle the buyer to reject the goods. In addition, damages may be claimed as compensation for any physical injury or property damage suffered by the buyer, provided that this is within the reasonable contemplation of the parties as being not unlikely to result from the breach. Until relatively recently it was not necessary to distinguish too closely in this context according to whether the buyer was dealing as a business or as a consumer. The same general rules applied in both cases. The introduction of the Sale and Supply of Goods to Consumers Regulations 2002 changed the position markedly in this respect by enacting additional rights for buyers who deal as consumers.

Parties to contracts frequently seek to exclude or modify the liabilities and remedies which would otherwise arise through breach of the express and implied terms discussed in earlier chapters. Such exemption or exclusion clauses may take a variety of forms. For example, there may be a simple statement that the goods are sold as is, or with all faults; or the clause may be exhaustively comprehensive. Similarly there may be an attempt to place a time limit on claims, to circumscribe the ability to reject defective goods, to limit the damages recoverable whether by reference to a specified sum or by excluding claims for consequential loss, or to substitute lesser obligations for those which would arise under the general law. There is nothing inherently objectionable in this where the parties are bargaining on an equal footing and the contract is the result of a genuine agreement between them. In principle commercial enterprises ought to be free to decide on the allocation of risks (and so of insurance cover) under their contract. They are unlikely to approve of well-meaning attempts to override the effect of their bargain.

There is ample room for debate as to the category of persons who should be required to assume responsibility for damage caused by a defective product. The most obvious is the producer or manufacturer for usually they will have actively created the defect or at least have failed to eliminate it. However, in recognition of the fact that not all such producers will be solvent, readily identifiable, and available to be sued, it is widely recognized that others should also be potentially liable. The most obvious is the commercial importer and distributor of a defective product since in the absence of such liability an injured claimant would be left with the alternative of suing in a foreign jurisdiction. Secondly, there is the case of own-brand products. As the Law Commissions observed, many commercial organizations ‘sell products under their brand name as if they themselves had produced them, although the products were in fact made by their suppliers’.

A multitude of medical products are being developed and produced as part of efforts to tackle COVID-19. They are varied in nature and range from test kits to tracing apps, protective equipment, ventilators, medicines and, of course, vaccines. The design, testing and manufacture of many of these products differs from production in normal times due to the urgency of the situation and the rapid increase in demand created by the pandemic. This article considers the legal issues arising as a result of the production of emergency products, particularly from a products liability perspective. To what extent do existing concepts under the European Product Liability Directive, such as defect, causation and the various defences, permit the pandemic to be taken into account when a Court is considering issues of liability? What is the impact on liability of the modified regulatory regime? In light of that discussion, the case for alternative responses is examined from a comparative and European perspective, including the issue of Government indemnities for the manufacturers of products, legal exemptions from liability and alternative no-fault compensation schemes.

One of the most important and complex elements in many product liability actions is the establishment of a causative link between the allegedly defective product and the relevant damage. Indeed, the significance of causation cannot be overstated since, whether the claim is in negligence or under the Consumer Protection Act 1987, proof of causation will often lead to either a settlement or a successful claim.

There may be major difficulties in determining the types of damage or loss which will be compensated in product liability litigation and this is so whether the claim is based on the strict liability provisions of Pt 1 of the Consumer Protection Act 1987 or the general law of negligence. In some cases it will be clear that the 1987 Act is inapplicable and hence that the standard requirements of the law of negligence must be met or the existence of a contractual claim established. For example, the defendant may not be a person who is potentially subject to liability under s 2 of the Act or the damage may be of a type which the Act does not compensate. Alternatively, a claim under the Act may be barred by virtue of the expiry of a limitation period or, and this is increasingly less likely with the passage of time, because the relevant product was supplied before the Act came into force on 1 March 1988.

Before liability is incurred under the Consumer Protection Act 1987, a product containing a defect must cause damage. Section 1(2) of the Act provides a definition of ‘product’. It states that ‘product’ means ‘any goods or electricity and … includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise’. Notwithstanding the short title of the Act, the definition of product is sufficiently broad to have a wider application than merely to consumer goods. For example, disasters resulting from chemicals or aircraft could be litigated under the Act, as could asbestos and other toxic substances which have given rise to much litigation in the United States.

In addition to imposing liability for any express warranties and misrepresentations, English law imposes a further measure of contractual liability on sellers of goods through the medium of the implied term. From at least the early nineteenth century, contracts for the sale of goods have been taken to require that the seller supply goods which correspond with the contract description and which are of merchantable (now satisfactory) quality and reasonably fit for their purpose.

The conflict of laws is one of the names given to the subject that deals with the resolution of private law disputes between private law parties where the facts have a connection to more than one legal system. Such situations arise frequently in product liability. For example, a product is assembled in State A using different components manufactured in States B, C, and D. Alternatively, a product is manufactured in State A, placed upon the market in State B, and consumed by the purchaser in State C, causing him injury which requires treatment in State D. In product liability litigation the fact that there are foreign issues means that a lawyer presented with such a case by the claimant must consider additionally three basic and interrelated questions. First, can the desired court hear the case the claimant would present to it? This is the jurisdiction question. If the answer is ‘No’, the claimant’s case will not proceed in that forum but may be able to be presented in another forum. If the answer is ‘Yes’, this means that the rules of jurisdiction may allow the claimant’s case to proceed as desired. The question of jurisdiction has a general and a specific aspect: the court must have the jurisdiction to hear the claim considered both in a general sense and in the specific sense involving the specific parties that the claimant would involve in the litigation he hopes to conduct before it.

Although the provisions of Pt I of the Consumer Protection Act 1987 imposing strict liability for damage caused by defective products are the primary source of tortious liability in the area covered by this work, they are by no means the sole such source. This is principally because of the limitations which have been placed on the scope of the Act. These affect such issues as the persons who are potentially subject to liability, the types of damage or loss covered, and in particular the exclusion of damage to commercial property, the incidence of limitation periods, and the fact that the Act does not apply to products which the defendant supplied before it came into force on 1 March 1988. Moreover, even where the Act is potentially applicable it will often be considered prudent to pursue alternative sources of liability, notably those which arise under the general law of negligence. Certainly, this has been the experience of the position in the United States. Nonetheless, in reading the text which follows it should be remembered that nowadays the Act is the most obvious source of liability in most cases in which it is claimed that a defective product has caused death, personal injury, or damage to what may be broadly termed consumer property.

The global war against severe acute respiratory syndrome coronavirus-2 (SARS-CoV-2), and the disease it causes (Covid-19), is being fought by many countries on many fronts. Equipment is essential in any war , and it is no different where that equipment takes the form of medical supplies. Faced with the current pandemic, a vast global demand has arisen for an array of products, from test kits and chemicals, personal protective equipment (PPE), hand sanitisers and other biocidal products, ventilators and similar devices, as well as medicines, treatments and (of course) a vaccine. Producers are now scrambling to meet that demand by ramping up production, developing modified and new products at astonishing speeds, as well as manufacturing in novel ways. So what of the legal considerations? In this piece we explore from a legal perspective some of the issues that might arise, and how existing legal concepts might respond. Our purpose is not to erect legal road blocks in the way of meeting demand for essential healthcare products; quite the contrary. It is to contribute to the consideration of the application of laws covering product liability and regulation an early stage, when ex ante measures (such as providing warnings, obtaining indemnities from government etc) are still available to producers and lawmakers.

Damages claims brought against public authorities responsible for the maintenance of highways are common. It has been suggested that claims brought against local authorities in their capacity as ‘highway authorities’ represent the largest number of claims they receive. This is unsurprising given the total number of accidents that occur on the roads. While most accidents may be the fault of individual drivers, some could have been averted if the authority responsible for the highway had acted carefully in its maintenance of roads, its provision of signs, its removal of ice etc. Claims arising in such circumstances are considered in this chapter. As we shall see, claims brought against highway authorities are predominantly framed as breaches of the statutory duty contained in the Highways Act 1980 rather than as common law negligence claims. Common law claims tend to operate as a residual category, and they are brought when damages are not available under the 1980 Act.

This book focuses primarily upon claims brought against public authorities for the tort of negligence. Where a public authority causes harm to an individual, either deliberately or carelessly, there may also be other remedies available to the injured party. The present chapter considers some of the more important alternative remedies, though perhaps the most significant alternative now available are claims brought under the Human Rights Act 1998, which are considered separately in Chapter 7. In this chapter we examine the torts of misfeasance in public office and breach of statutory duty as well as judicial review proceedings and complaints to the Ombudsmen.

Various different services, under the auspices of public authorities, have been created to respond to emergencies. Some, such as fire and ambulance services, are provided pursuant to statute. Others, such as coast-guards, are not. This chapter considers the potential liability in tort of these various services. As we shall see, the existence, or otherwise, of a statutory framework covering the emergency service does not affect the scope of the common law duties of care it owes (with the possible exception of the ambulance service), and essentially the same principles apply regardless of the statutory framework. There are, however, significant differences between the way the courts treat the various emergency services, and these differences, and the reasons for them, are examined throughout the course of this chapter.

In order to succeed in a negligence action, claimants must establish that: (i) they were owed a duty of care, (ii) the duty was breached by the defendant, and (iii) the duty caused loss of a legally recognized kind. It will also be necessary for the claim to be ‘justiciable’, that is, of a kind which is suitable for resolution in the courts. We consider justiciability in Chapter 2 and the approach taken by the courts to determine a duty of care in Chapters 3 and 4. In this chapter we examine the other elements of a negligence claim: namely, breach of duty, causation, and damage. We shall also consider two further questions: whether claims can be brought, not only against a careless individual, but against his or her employer, and the procedures for disposing of claims without requiring a trial through strike-out and summary judgment procedures.

In order to succeed in a negligence action, the claimant must establish that he or she was owed a ‘duty of care’ by the defendant. The following chapter examines the tests the courts apply to determine whether a duty is owed. It also considers the impact of jurisprudence of the European Court on Human Rights on imposition of a duty, and the particular difficulties imposing a duty in cases of pure economic losses, psychiatric harm and omissions. Not all aspects of duty of care are considered in this chapter. We examine whether imposition of a duty is fair, just, and reasonable in Chapter 4 and the related issue of justiciability in Chapter 2.

For a number of reasons the courts have exhibited some wariness about imposing liability on public authorities. They are concerned that the threat of negligence liability might hamper the authority in its attempt to discharge its public duties, or that the limited resources of a public authority should not be spent compensating those whom the authority failed to protect from harm. There is also a concern that decisions about the allocation of public resources should be made not by the courts at all but by the authorities themselves, which are generally answerable to political processes. It is apparent that such consideration does not arise in relation to negligence claims brought against private parties, and this book attempts to examine the principles the courts have formulated to determine how defendants’ liabilities are affected by the fact that they were discharging public obligations at the time of their alleged negligence.

This chapter considers claims brought against the Armed Forces where negligence of its members causes injuries to other members of the forces or to civilians. In order to understand the scope of liabilities where claimants are themselves members of the Armed Forces, it is necessary to consider the statutory immunity that was conferred upon the Forces. Section 10 of the Crown Proceedings Act 1947 provided the Crown with a broad immunity in relation to tort claims brought by members of the Armed Forces. This immunity was removed by the Crown Proceedings (Armed Forces) Act 1987. The 1987 Act abolished the immunity only prospectively, however, and for harm suffered prior to its coming into force, in May 1987, the immunity continues to apply. Since claims can be brought many years after an injury was suffered if the claimant was not aware of the injury the immunity continues to play a significant role.

The following chapter examines claims that can be brought under the Human Rights Act 1998 (HRA). The HRA makes it unlawful for a ‘public authority’ to breach the European Convention on Human Rights (‘the Convention’). The HRA accords to the victims of a breach of the Convention the right to pursue a claim against the offending public authority in the UK courts, when previously they were required to apply to the European Court of Human Rights in Strasbourg to vindicate their Convention rights.

It has long been established that schools owe a duty to look after the physical health and safety of their pupils. The duty imposed on schools has since been extended to taking care of the ‘educational needs’ of pupils. This has led to the imposition of liability in cases of ‘educational negligence’. These cases have tended to involve a failure to diagnose and treat learning difficulties, though the courts have made clear that schools are under a general duty to ensure that reasonable care is taken in the provision of education. As Lord Browne-Wilkinson noted in X v Bedfordshire County Council, ‘the education of the pupil is the very purpose for which the child goes to the school’ and the school thus has a duty to ensure that the child’s educational needs are met, and not just that he or she is physically safe while at school.

Public authorities have responsibilities towards vulnerable individuals, and are accorded powers to protect such individuals from harm. This includes the power to provide care for children, the elderly and those suffering from mental illnesses. This chapter examines the potential liabilities of such authorities in relation to harm suffered because of failures in the provision of social services, for example, where claimants were abused while in the care of the authority, or where the authority failed to protect children from abuse by their family. We also examine harm which can arise where an authority has been over-zealous, as opposed to insufficiently attentive, for example where an authority erroneously suspects that children are being abused by their parents and unnecessarily removes children from their family.

Whether, and in what circumstances, public authorities should be held liable for negligence in the performance of their public functions is a highly complex area of the law. Written by Cherie Blair and Dan Squires QC, the first edition of The Negligence Liability of Public Authorities provided a much needed guide to these complexities and offered a detailed account of the law for practitioners and academics. This second edition builds on the reputation of the first, including full coverage of the many important cases which have been decided since 2006. Divided into two parts, Part I focuses on the extent to which the public nature of a defendant affects civil liability and the principles that govern and limit that liability. Part II considers the law as it impacts upon specific areas of public authorities' activities. It examines cases in a range of key areas, including the police, social services, highways, education, and the emergency services and aims to set out in a comprehensive way the different legal issues that have arisen in each area. By examining cases in a variety of jurisdictions, including Australia, Canada, South Africa, New Zealand and the USA, the authors further broaden the scope of this authoritative text. The book also identifies the underlying principles and policy arguments which have shaped the law more generally, making it an extremely useful resource for a wide variety of practitioners.

‘Health and safety regulators’ are public authorities whose primary purpose is to supervise the activities of third parties engaged in dangerous activities. Their aim is to provide protection from physical harm. This chapter examines the circumstances in which such regulators will be held liable in tort if their carelessness causes physical or economic losses to members of the public, or to those whose activities are the subject of the regulation. We consider other regulatory bodies, such as those concerned with planning and banking in Chapter 14, and we consider the potential liability of bodies concerned with providing information and warnings on health, but not with the direct regulation of potentially dangerous activities, in Chapter 18.

When determining a negligence claim brought against a public authority, the first question a court will need to consider is whether the claim is ‘justiciable’, ie whether it is suitable for judicial resolution. It is only if a claim is ‘justiciable’ that the court ought to go on to consider whether a duty of care is owed and has been breached. While there are matters that may be relevant to both justiciability and duty of care, justiciability ought to be determined as a preliminary question, or at least, as far as possible, kept conceptually separate from the determination of whether a defendant owed a duty of care.

Public authorities are responsible for detaining individuals in a variety of situations. The police, prison authorities, and health authorities treating the mentally ill, are all empowered to confine people against their will. Given the almost complete control such authorities have over the detainees’ environment, and the dependence of the detainees on the authority to provide for their daily needs, it is foreseeable that in various circumstances the carelessness of the authority will harm those detained. This chapter considers the potential liability in negligence of detaining authorities. Negligence is not, however, the only, or even the most important, tort available to detainees. They may also be able to hold detaining authorities liable for the torts of assault and battery, misfeasance in public office, and false imprisonment, as well as various claims for breach of the European Convention on Human Rights. As this chapter explains, the tort of negligence often operates as a residual remedy where one of these other remedies is not available to a detainee. Another kind of negligence liability this chapter considers arises where harm is caused by the detainees themselves. Given that some of those detained may be dangerous, it is foreseeable that if they are incorrectly released or allowed to escape they will cause harm. This chapter examines whether those injured by detainees in such circumstances can hold the detaining authority liable in negligence. The possibility of the victims succeeding in claims for breach of the European Convention on Human Rights is such cases is considered in Chapter 7.

Once it is determined that a claim is justiciable, whether liability will be imposed on a public authority depends on the application of ‘ordinary principles of negligence’, and this will mean that the claimant must establish he or she was owed a duty of care. Where it has been widely recognized in similar past cases that a duty of care is owed, liability is dependent only on establishing carelessness and causation, and the court will not consider the issue of ‘duty’ at all. Where it is less clear that a duty is owed, because we are dealing with a novel category of case in which duties have not been recognized previously, the tripartite test set out in the judgment of Lord Bridge in Caparo Industries Plc v Dickman, which we consider in more detail in Chapter 3, is applied. Pursuant to the test, the courts are to determine, first, whether harm was reasonably foreseeable, secondly, whether the claimant and defendant were in a sufficiently ‘proximate’ relationship to one another, and, thirdly, whether imposition of a duty of care would be ‘fair, just and reasonable’. The first two elements of the Caparo test are considered in Chapter 3. In this chapter we examine the third limb of the Caparo test.

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 19 th 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 20 th 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’.