1 / 22

Adopting the European Approach to Product Liability: Australia and Japan

Adopting the European Approach to Product Liability: Australia and Japan. Dr Luke Nottage Senior Lecturer Co-director, Australian Network for Japanese Law University of Sydney Law Faculty Visiting Fellow, Max Planck Institute for Foreign Private and Private International Law, Hamburg.

alta
Download Presentation

Adopting the European Approach to Product Liability: Australia and Japan

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Adopting the European Approach to Product Liability:Australia and Japan Dr Luke Nottage Senior Lecturer Co-director, Australian Network for Japanese Law University of Sydney Law Faculty Visiting Fellow, Max Planck Institute for Foreign Private and Private International Law, Hamburg

  2. Europeanisation of PL? • Cf US initially (R2d ‘65), now (R3d, ´98) • ‘Americanisation of Japanese law’? • Eg PL Law `94 (despite EC Directive model!), allegedly too in corp law • Due to political fragmentation, dereg, lawyers • And of Australian law? • Constitutional evolution, dereg, big law firms • Asserted for corp law, less so PL (TPA `92) Luke Nottage, BIICL talk, 6/9/04

  3. Plan today • Focus mainly on Japan • My book! (Routledge´04) • Less (balanced) material for English speakers • Ongoing product safety concerns • (Daimler)Mitsubishi - recalls in 2000 (‘summer of living dangerously’), another round this summer • 2nd largest economy - growing again! • Ongoing ‘third wave’ of law reform • late 19C ‘reception’ (Germany), post-WW2 (US) Luke Nottage, BIICL talk, 6/9/04

  4. Comparisons with Australia • Different PL trajectory recently (book ch 2) • Incl. less pro-Pl case law? (ch 3) • Yet similar reactions to PL enactment (ch 4) and product safety regulation (ch 5)! • Conclusions • Unexpected influence of EU model (+ Asia) • Likely further influence, but more broadly Luke Nottage, BIICL talk, 6/9/04

  5. Comparing PL History:US origins • 19C Strict liability “implied warranty” of “merchantable quality” in Sales of Goods • Such contract law liability extended, first to foods, then eg cars (Hennington ’60) • Then in tort vs makers (Greenman ’63) • So s402A of Restatement 2d Torts (’65) … Luke Nottage, BIICL talk, 6/9/04

  6. Quite small doctrinal adjustment, yet this SL remedy in tort caught on from ‘70s • Backlash began from 1980s, ‘tort reform’ (restricting especially at state levels) continued over 1990s • Restatement 3d of PL (’98) reinstates negligence for design and warning (cf manufacturing) defects! Luke Nottage, BIICL talk, 6/9/04

  7. History – EU: more consistent • Thalidomide disaster in 60s (no contracts) • 1978 Pearson Report: SL for defective products (but not no-fault compo scheme like NZ) • Derailed in UK eg by poor economy, neo-liberal Thatcher from ’79, joining EU ‘73 • 1975 draft EU Directive, vs strong opposition Luke Nottage, BIICL talk, 6/9/04

  8. 1985 Directive compromise, • eg exclusion for agriculture, • dev’t risks (“no one could know” defence) • Ltd but significant effects (little case law, but safety improvements) • Broader EU program since late 90s: PS Directive(s), consumer protection Luke Nottage, BIICL talk, 6/9/04

  9. Lovells for Commission (2003) • Some disharmony, but not huge problem • “General happiness with current balance” [?] Luke Nottage, BIICL talk, 6/9/04

  10. History – Australia: hybrid dev’t • No thalidomide; but some problems in case law, surveys in 80s … and especially • EU Directive ‘85 as (legal and political) model • Cf ‘89 ALRC: “harm arising from how gds acted” • Opposition from business (& conservative govt) • Compromise: Part VA added to TPA in ’92 • based on (more pro-Consumer) variant of EU Directive Luke Nottage, BIICL talk, 6/9/04

  11. More pro-Cer proposals lost from view • eg 20-year “period of repose” for toxic tort situations • “Tort reforms” from 2002 (beginning with NSW) • Clarifying negligence standard (eg medical opinion) • Caps on damages • Lawyers must have prospect of success (PS ADR) • Limitation periods Luke Nottage, BIICL talk, 6/9/04

  12. History – Japan: another hybrid • Tort, untrammelled by “privity of contract” • But mostly negligence (1898 Civil Code art 709) • “Big Four” PL cases over 60s • Morinaga milk • Thalidomide, SMON • Kanemi rice oil • Cf auto defects Luke Nottage, BIICL talk, 6/9/04

  13. Various responses led to “still-birth” of PL in 70s: • Collective action & legal problems (eg autos - design) • Government formalism (better safety laws) • Bureaucratic informalism (broader Cer Protn) • Industry informalism (1st party insurance scheme etc) • “Re-birth” from late 80s -> 1994 PL Law: • (Revived?) accidents, EU as model • int’l trade pressure (US, WTO), LDP lost power ’93 Luke Nottage, BIICL talk, 6/9/04

  14. Summary Comparison:Pro-consumer PL? Luke Nottage, BIICL talk, 6/9/04

  15. Comparing Japan’s PL Law • Purpose (art 1): ltd use (except EU?) • Defns (art 2): • Product: manuf’d/processed movable [broad] • Defects: ‘safety it ought to have’, eg nature, normally foreseeable manner of use, time deliv’d • Manufacturer: incl importer, own-brander, [!] etc • [Strict] Liability (art 3): • on ‘manufacturer’ for D caused by ‘defect’ in ‘product’, interfering with another’s life/health or [!] property; except if D only to product itself Luke Nottage, BIICL talk, 6/9/04

  16. Exemptions (Art 4): • Development risks: state of tech/sci knowledge such that impossible to detect defect when delivered • strictly construed so far (snapper case), cf Australia (oysters)? • Component manufacturing: solely followed another’s design instructions, & not neg. [also ltd] Luke Nottage, BIICL talk, 6/9/04

  17. Time limits (Art 5) • Claim within 3 years of knowing of defect, and 10 years from delivery (unless like [cf Oz!] ‘toxic tort’) • Civil Code (Art 6): otherwise applicable • Fill gaps: eg ‘causation’, calculate Ds, comparative negligence • Always in parallel: eg hi standard for food ‘defect’ • Essential for gds delivered before Law in force (7/95) Luke Nottage, BIICL talk, 6/9/04

  18. Substantive law < context! • Civil procedure & civil justice system • Scope of damages (eg punitive? Juries? Claim lawyers fees if win?) • Evidence and proof (standard, re liability [eg specific defect?] or damages [eg unclear?]? Pre-trial discovery? Other info disclosure, eg from govt agencies?) • Access to courts etc (eg group actions) • Nature of entire legal system! Luke Nottage, BIICL talk, 6/9/04

  19. Multiple Effects in Japan [=EU (Lovells), Australia (replica now)] • Litigation • Nos of suits: slow but steady increase in Japan (faster, more than Australia, most EU?!) • Pro-plaintiff settlements: more, esp. mid-90s • ADR • Industry associate based PL Centres • Local govt “Consumer Living Centres” • Product safety activities by manufacturers • Complaints handling, compliance • Design/warning improvements, insurance Luke Nottage, BIICL talk, 6/9/04

  20. Japan & Australia similar to EU? Luke Nottage, BIICL talk, 6/9/04

  21. Conclusions • Influence of EU model in Japan, even Australia (and beyond) • (Deceptively) succinct structure, concepts • Also now in Japan: consumer contracts, suits • In Australia (less so): “unfair terms” (Vic) • Political compromise, but then • Hard to get attention for further PL Law reforms (Japan)? • Or indeed easily undone (Australia’s ‘tort reforms’) Luke Nottage, BIICL talk, 6/9/04

  22. Future of EU model • `Reformulation‘: Ongoing (world-wide) case law developments • But no ALI, or even European Law Institute • `Reform‘ of PL laws per se less likely • Not even in EU (cf Lovells) • Some expansions (agriculture), limits (time: Oz) • Most attention on PS ‘re-regulation‘ (EU) • Parallel procedural reforms also a la EU Luke Nottage, BIICL talk, 6/9/04

More Related