Product Liability – When Doing Your Best Should not be Enough because Consumer Expectations Should be Taken Seriously

In response to the Thalidomide crisis the European Commission introduced strict product liability in 1985. This followed several years of discussion that led to the compromise of allowing member states the option of introducing a development risks defence. At the core of the reforms was the shift in liability from a negligence based regime to a strict liability regime. The article analyses two Hight Court decisions including detailed consideration of the concept. The article argues that while the two outcomes can be reconciled, they represent different models for product liability and a regime that applies a realistic model of consumer expectations is to be preferred.