LexisNexis Practical Guidance®
Straightforward guidance across a range of topics

Product liability in 11 jurisdictions worldwide


Click here to download the product liability 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 11 jurisdictions are covered in this report:

Australia; England & Wales; France; India; Ireland; Italy; Japan; Korea; Nigeria; Switzerland; United States.

Questions

The set of questions relating to the topic of product liability and answered by the guide for each jurisdiction covered include:

Civil litigation system

  • What is the structure of the civil court system?
  • What is the role of the judge in civil proceedings and what is the role of the jury?
  • What are the basic pleadings filed with the court to institute, prosecute and defend the product liability action and what is the sequence and timing for filing them?
  • Are there any pre-filing requirements that must be satisfied before a formal law suit may be commenced by the product liability claimant?
  • Are mechanisms available to the parties to seek resolution of a case before a full hearing on the merits?
  • What is the basic trial structure?
  • Are there class, group or other collective action mechanisms available to product liability claimants? Can such actions be brought by representative bodies?
  • How long does it typically take a product liability action to get to the trial stage and what is the duration of a trial?

Evidentiary issues and damages

  • What is the nature and extent of pretrial preservation and disclosure of documents and other evidence? Are there any avenues for pretrial discovery?
  • How is evidence presented in the courtroom and how is the evidence cross-examined by the opposing party?
  • May the court appoint experts? May the parties influence the appointment and may they present the evidence of experts they selected?
  • What types of compensatory damages are available to product liability claimants and what limitations (if any) apply?
  • Are punitive, exemplary, moral or other non-compensatory damages available to product liability claimants?

Litigation funding, fees and costs

  • Is public funding such as legal aid available? If so, may potential defendants make submissions or otherwise contest the grant of such aid?
  • Is third-party litigation funding permissible?
  • Are contingency or conditional fee arrangements permissible?
  • Can the successful party recover its legal fees and expenses from the unsuccessful party?
  • Is there a statute that governs product liability litigation?
  • What other theories of liability are available to product liability claimants?
  • Is there a consumer protection statute that provides remedies, imposes duties or otherwise affects product liability litigants?
  • Can criminal sanctions be imposed for the sale or distribution of defective products?
  • Are any novel theories available or emerging for product liability claimants?
  • What breaches of duties or other theories can be used to establish product defect?
  • By what standards may a product be deemed defective and who bears the burden of proof? May that burden be shifted to the opposing party? What is the standard of proof?
  • Who may be found liable for injuries and damages caused by defective products?
  • What is the standard by which causation between defect and injury or damages must be established? Who bears the burden and may it be shifted to the opposing party?
  • What post-sale duties may be imposed on potentially responsible parties and how might liability be imposed upon their breach?

Limitations and defences

  • What are the applicable limitation periods?
  • Is it a defence to a product liability action that the product defect was not discoverable within the limitations of science and technology at the time of distribution? If so, who bears the burden and what is the standard of proof?
  • Is it a defence that the product complied with mandatory (or voluntary) standards or requirements with respect to the alleged defect?
  • What other defences may be available to a product liability defendant?
  • What appeals are available to the unsuccessful party in the trial court?

Jurisdiction analysis

  • Can you characterise the maturity of product liability law in terms of its legal development and utilisation to redress perceived wrongs?
  • Have there been any recent noteworthy events or cases that have particularly shaped product liability law? Has there been any change in the frequency or nature of product liability cases launched in the past 12 months?
  • Describe the level of “consumerism” in your country and consumers’ knowledge of, and propensity to use, product liability litigation to redress perceived wrongs.
  • Describe any developments regarding “access to justice” that would make product liability more claimant-friendly.