This thesis seeks to answer the primary question as to whether Product Liability Claims are socially desirable by reference to three Product Liability case studies and a survey of 132 archived Product Liability claims. These constitute a representative random sample of Product Liability cases handled by the Author’s Legal Practice. This practice has provided a window through which serious failings are identified in (i) the strict liability based Product Liability Directive; (ii) tort itself as a mechanism for compensating injured persons; and (iii) the procedural infrastructure in which claims are made, as recently reformed in accordance with Lord Justice Jackson’s recommendations. This thesis tests Product Liability claims against the objectives of tort: deterrence; corrective justice; retribution and vindication; distributive justice and compensation. It is found that Product Liability claims fail to meet the defined standard of social desirability. There is nothing special about products to necessitate or justify a bespoke system of liability. Product Liability claims for damages represent in microcosm the broader picture of personal injury claims as a whole. This thesis highlights the failings of a system which relies heavily on gambling upon outcomes; perpetuates a ‘have a go’ culture; rewards the lucky few; builds in an unacceptable element of moral hazard and tolerates and generates the costs of a high volume of claims which serve no practical or legal purpose. It is concluded that 1. The Product Liability Directive was introduced as an emotive response to the Thalidomide tragedy but it would fail to provide a remedy in a similar disaster. Instead it treats sufferers of minor mishaps as victims and contributes to a litigation industry that inculcates in society a false and unnecessary sense of entitlement. 2. The Product Liability Directive should be repealed as a flawed and misconceived piece of legislation that fails to achieve its key goal of protecting consumers and harmonising the law. 3. Support is found in this practical research for much of what Atiyah advocated in his seminal work The Damages Lottery. The possibility of an all-embracing no-fault liability system should be reconsidered subject to strict controls, including thresholds, to ensure that it compensates and rehabilitates only those with genuine needs. 4. A first party insurance market would have to develop to fill the gaps.

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Diss. (sammanfattning) Linköping : Linköpings universitet, 2006. / Härtill 5 uppsatser.

Class of 2005 Abstract / Objectives: To quantify the initial short-term market response of product liability litigation in appellate courts against vaccine manufacturers between 1987 and 2003. Methods: This project used a retrospective data analysis. The study analyzed appellate court decision found searching the legal research section of Lexis-Nexis® between 1987 and 2003. A single index market model was used to examine an event window of (-1, +1) and calculate a cumulative abnormal return for one of three categories; outcome in favor of the plaintiff, outcome in favor of the defense, or case dismissal. Results: Overall, this study investigated vaccine-related litigation. Thirty-three lawsuits were found involving 12 separate parent companies and ultimately lead to 82 separate incidences. A majority of the cases involved litigation concerning thimerisol (n =12, 36%). Following inclusion and exclusion criteria for the appellate court rulings, 9 cases were in favor of plaintiff, 10 cases were in favor of the defense, and 14 cases were dismissed. Appellate rulings favoring the plaintiffs were found to be negative and statistically significant, with cumulative abnormal returns equaling -1.39% during the (-1,+1) event window (p < 0.05). The mean cumulative abnormal returns for rulings favoring the defense or case dismissals were statistically insignificant at 0.49% and -0.29%, respectively Implications: Product liability litigation against vaccine manufacturers can produce significant negative short-term security price returns, which can be a disincentive for corporations to invest in vaccine development and production.

For almost twenty years, the general delictual claim as found in par. 823 (!) BGB formed the basis for product liability claims against producers in Germany. In 1985, however, a European Directive on Product Liability was issued and in 1990 Germany enacted the Product Liability Act. Setting a strict liability standard, the Act was to operate in tandem with the existing general delictual claim. Since producers in any event find it very difficult to successfully defeat product liability claims based on par. 823 BGB, the Act should not drastically change the landscape of German product liability jurisprudence. In South African product liability claims fall under the Lex Aquiliae which has fault as its cornerstone. Although our Courts are willing to assist a plaintiff by applying the doctrine of res ipsa loq11it11r, the German experience has shown that procedural devices do not provide a permanent solution to the problem of product liability. In the long run legislation is the best way to bring about a rational and equitable system of strict liability. / Mercantile law / LL.M.

For almost twenty years, the general delictual claim as found in par. 823 (!) BGB formed the basis for product liability claims against producers in Germany. In 1985, however, a European Directive on Product Liability was issued and in 1990 Germany enacted the Product Liability Act. Setting a strict liability standard, the Act was to operate in tandem with the existing general delictual claim. Since producers in any event find it very difficult to successfully defeat product liability claims based on par. 823 BGB, the Act should not drastically change the landscape of German product liability jurisprudence. In South African product liability claims fall under the Lex Aquiliae which has fault as its cornerstone. Although our Courts are willing to assist a plaintiff by applying the doctrine of res ipsa loq11it11r, the German experience has shown that procedural devices do not provide a permanent solution to the problem of product liability. In the long run legislation is the best way to bring about a rational and equitable system of strict liability. / Mercantile law / LL.M.

Patients who have undergone treatment that has included the surgical implantation of a prosthetic device can become dissatisfied for many reasons. One cause for dissatisfaction is any adverse event where there is a demonstrable causal nexus with the failure of a device that is defective or at risk of being so. The magnitude of therapeutic product failure is considerable and therapeutic goods such as Vioxx, Thalidomide, silicon-gel-filled breast implants, contaminated blood products, cardiac pacemakers and valves, and orthopaedic devices are testimony to this. Many of these events have exposed a greyish area of Australian law that balances medical negligence with consumer protection and contract law. Australian product liability legislation that regulates the use of therapeutic goods is a complex amalgam of law that has at its foundations the Trade Practices Act 1974 (Cth) and the Therapeutic Goods Act 1989 (Cth). When a surgical device fails there can be exposure to liability. This thesis explores those important issues that can impact on individuals or on organisations and it is evident that where issues of product liability concern implanted surgical devices the current regulations for consumer protection may not always be the most appropriate. It is evident that there is a culture of under-reporting of adverse events to a Therapeutic Good Administration that does not have the resources to investigate the cause for failure of a surgical device. Furthermore, there is a potential for bias and conflict of interest in an environment where the regulator depends on the regulated for the funding of its existence. Other issues include the complex and often undesirable consequences of those partnerships that can evolve with the development of an implantable device and with the undertaking of clinical trials, the role of the learned intermediary, that interface between manufacturer and consumer, and the role of the expert witness, that interface between justice and injustice. These and other matters that can significantly influence any debate of implantable surgical device product liability are explored and recommendations are made that might form the basis of a Therapeutic Goods (Safe Medical Devices) Amendment Act.

Patients who have undergone treatment that has included the surgical implantation of a prosthetic device can become dissatisfied for many reasons. One cause for dissatisfaction is any adverse event where there is a demonstrable causal nexus with the failure of a device that is defective or at risk of being so. The magnitude of therapeutic product failure is considerable and therapeutic goods such as Vioxx, Thalidomide, silicon-gel-filled breast implants, contaminated blood products, cardiac pacemakers and valves, and orthopaedic devices are testimony to this. Many of these events have exposed a greyish area of Australian law that balances medical negligence with consumer protection and contract law. Australian product liability legislation that regulates the use of therapeutic goods is a complex amalgam of law that has at its foundations the Trade Practices Act 1974 (Cth) and the Therapeutic Goods Act 1989 (Cth). When a surgical device fails there can be exposure to liability. This thesis explores those important issues that can impact on individuals or on organisations and it is evident that where issues of product liability concern implanted surgical devices the current regulations for consumer protection may not always be the most appropriate. It is evident that there is a culture of under-reporting of adverse events to a Therapeutic Good Administration that does not have the resources to investigate the cause for failure of a surgical device. Furthermore, there is a potential for bias and conflict of interest in an environment where the regulator depends on the regulated for the funding of its existence. Other issues include the complex and often undesirable consequences of those partnerships that can evolve with the development of an implantable device and with the undertaking of clinical trials, the role of the learned intermediary, that interface between manufacturer and consumer, and the role of the expert witness, that interface between justice and injustice. These and other matters that can significantly influence any debate of implantable surgical device product liability are explored and recommendations are made that might form the basis of a Therapeutic Goods (Safe Medical Devices) Amendment Act.

This thesis examines how legal liability may be assessed in the case of an autonomous vehicle collision. It begins with a comprehensive discussion of autonomous vehicles: their defining features, a history of their development, and their current technological challenges. This paper later discusses the benefits of autonomous vehicles and why a new legal framework for their commercial production is necessary to realize these benefits. In doing so, it analyzes recent legislative efforts surrounding autonomous vehicles and their implications. Lastly, it utilizes the current product liability regime and precedent set by previous semi-autonomous vehicle collisions to suggest how liability may be determined in future legal suits.

The goal of this dissertation is to highlight the ambiguities contained in section 61 of the Consumer Protection Act 68 of 2008 (CPA), which attempts to introduce strict product liability for the entire supply chain in the event of product failure, and to propose amendments from which both the consumer as well as the supply chain could benefit. The new dispensation of strict product liability will lead to a step away from the no-fault based liability system that our courts have implemented for decades. Although this system is unfamiliar to South Africa, strict liability regimes have been followed in foreign countries for a considerable period of time. A comparative study of the approaches followed in America and Europe, which both advanced strict product liability regimes, will be undertaken in this study in order to illuminate problematic aspects relating to the concept of defect contained in section 61 of the CPA as well as the various duties of the supply chain in a strict product liability regime. It is argued that the provisions of the CPA ought to be supplemented with regulations, including, but not limited to, the implementation of adequate safety regulations to mitigate product recalls and product liability claims. / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted