I. INTRODUCTION Comparative products liability is a dangerous business. For example, it may appear to U.S. eyes that the special U.S.-developed rule in the field1 was simply exported first to Europe and then elsewhere but this would be wholly misleading. Certainly when it comes to the European Community,2 the story of the modern creation of a special cause of action for those injured by products is fundamentally different from the corresponding story in the United States.3
For example, whereas in the United States the special product liability rule was created by judges, the special European rule4 was created by the technique of a Directive5 from the Council of the European Communities to the legislatures of the Member States, requiring them to implement its provisions via domestic legislation. Similarly, whereas the history of the U.S. rule reveals no single episode galvanising concern about civil remedies available to consumers, the Thalidomide disaster6 in Europe was clearly the catalyst for the reform processes that culminated in the 1985 Council Directive "on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products."7 It provides a telling benchmark by which to evaluate the impact of the latter.
The doctrinal context is also different in fundamental ways. Let me give three examples. First, judicial loyalty to precedent is much stronger in the United Kingdom than in the United States.8 Second, in the United Kingdom there is only one final court of appeal for matters concerning civil liability-the House of Lords-in striking contrast to the situation in the United States. Third, and of importance specifically in the products liability field, in the United Kingdom an injured worker's receipt of state benefits in relation to his work injury does not preempt a civil claim against anyone, not even his employer or any third party involved in the manufacture or supply of a product implicated in the causation of the injury.9
Even more broadly, the socio-legal context in which the European rule operates would be unrecognisable to the average practitioner in the United States. In the United Kingdom, for example, the loser pays not only his own but the winner's costs;10 neither punitive damages nor juries (save in Scotland) are available for products liability claims; and the operation of the National Health Service has in the past operated to relieve most tortfeasors from the costs of their victims' medical treatment.11 Moreover, the "European product liability rule" is in fact not one rule at all; despite the vaunted claim that the Directive was aimed at the approximation of product regimes across Member States, in a real sense, it has merely added onto existing regimes a further level of disparate rules varying, for example, according to which options in the Directive were implemented and what local rules exist in relation to non-pecuniary loss.12
Yet the U.S. products liability experience-or more correctly how that experience was perceived in Europe-did have real influence on Europe's moves toward its own rule in the Directive. During the early to mid-seventies, when European governments were beginning to lock themselves into the rhetoric of this "necessary" law reform, the popular perception of the U.S. rule encouraged the view that a reform focused on products was workable, acceptable, and broadly beneficial.13 Even today, when Europeans have a more sophisticated understanding of the U.S. experience and its limited practical relevance to the working of European liability regimes, the U.S. experience nevertheless exercises a powerful hand on products liability debate in Europe. The most important example is perhaps the way the indistinct U.S. usage of the term "strict liability" continues to bedevil discussion of this field and the law of obligations generally. What this means is that while it is unhelpful, even meaningless, simply to lay out side-by-side, say, the U. …