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Product Liability: Law and Insurance

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2.1 The Consumer Protection Act 1987 (“CPA”) came into force in England, Wales, Northern Ireland1 and Scotland on 1 March 1988. The CPA was enacted so as to fulfil the United Kingdom’s obligation under the Treaty of Rome to implement the European Community’s Directive on product liability, Directive 85/374/EEC.2 The purpose of the Directive was to achieve an approximation of the laws of EC Member States relating to product liability as part of the programme of creating a single European market. All Member States already had national laws based on liability for fault: under the English common law, this is the tort of negligence. The Directive did not, however, seek a harmonisation of the national laws on fault liability, which it left entirely alone, but instead adopted a different approach based on strict liability. The basic principle of the Directive is that a producer of a defective product is strictly liable for any damage which is caused by that product. The laws of some Member States, such as France, Germany and Spain, already included strict liability to a greater or lesser extent. Strict liability was, however, an entirely new concept in relation to product liability in other Member States, especially the United Kingdom. A strict liability approach to product liability had, of course, been prevalent in jurisdictions in the United States of America for some 40 years previously.

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