The Characterisation of Product Liability Claims in Private International Law … · 2019-06-24 · The Characterisation of Product Liability Claims in Private International Law in

The Characterisation of Product Liability Claims inPrivate International Law in England and Australia

Dr Stuart Dutson B Bus, LLB (Hons) (QUT), PhD (Cantab); Solicitor (England and Wales, andQueensland, Australia), Schmittoff Lecturer in International Commercial Law, Centrefor Commercial Law Studies, University of London, Queen Mary and WestfieldCollege.

The purpose of this article is to outline the methods by which statutory provisions andstatutory causes of action are characterised, and to determine the correct characterisationof the causes of action created by Part I of the Consumer Protection Act 1987 (UK) and'Part VA of the Trade Practices Act 1974 (Cth)l for private international law purposes.2

I. Characterisation and its role in private international law

The rules that have been developed by English courts and adopted into Australian law3 todeal with choice of law, and in many cases the statutory rules dealing with jurisdiction,4are 'expressed in terms of juridical concepts or categories and localising elements orconnecting factors'.5 For example, in determining the obligations under a contract a courtwill apply the proper law of the contract. In England and Australia when a privateinternational law problem arises before a court it will always be necessary to determinewhich juridical concept or category is appropriate in that case before the court candetermine which jurisdiction's substantive law is applicable to the case.

The problem of characterisation, also known as 'qualification' or 'classification',6'consists in determining which juridical concept or category is appropriate in any givencase'.7 Characterisation becomes largely irrelevant in this form if a system of private

Herein 'CPA' and 'TPA' will mean Part I of the Consumer Protection Act 1987 (UK) and Part VA of the TradePractices Act 1974 (Cth) respectively, unless otherwise indicated. The present author has previously published anarticle that addressed the extraterritorial operation and territorial scope of the CPA and TPA: S Dutson,'International Product Liability Litigation' (1996) 22(2) Monash University lAw Review 244.

2 Herein characterisation for the purpose of founding the jurisdiction of the court or applying the appropriate choiceof law rule (ie the matter at issue in cases considering the application of a statute of the forum to foreign personsor matters or the application of a foreign statute to domestic persons or matters) is described as characterisationfor private international law purposes: cf Ryder v Hartford Insurance [1977] VR 257 at 263, 11 3-19.

3 P E Nygh, Conflict of lAws in Australia, (6th ed), Butterworths, Sydney, 1995 [Nygh (1995)], P 9.4 For example RSC (England and Wales) 0 11 r 1, extraterritorial service provisions which refer to specific legal

categories: The Siskina [1979] AC 210 at 254-5 per Lord Diplock (the rest of their Lordships agreeing); and WV H Rogers, Winfield and Jolowicz on Tort, (14th ed), Sweet & Maxwell, London, 1994, [Winfield and Jolowicz(1994)], pp 3-4.

5 See Macmillan Inc v Bishopsgate Trust (No.3) [1996] 1 WLR 387 at 391-2 per Staughton U and at 417 perAldous U; J G Collier, Conflict of lAws, (2nd ed), Cambridge University Press, Cambridge, 1994, pp 15ff.; LCollins (ed) Dicey and Morris on The Conflict of lAws, (12th ed), Sweet & Maxwell, London, 1993, [Dicey andMorris (1993)], p 34; D St Ledger Kelly, Localising Rules in the Conflict of Laws, Woodley Press, Adelaide,1974, pp 1-4; and P M North, and J J Fawcett, Cheshire and North's Private International Law, (12th 00),Butterworths, London, 1992, [Cheshire and North (1992)], pp 43-7.

6 See Macmillan Inc v Bishopsgate Trust (No 3) [1996] 1 WLR 387 at 391-2 per Staughton U and at 417 perAldous U; Dicey and Morris (1993) p 34, n 2.

7 Dicey and Morris (1993) p 34; cf Cheshire and North (1992) p 44. This article is only concerned with thecharacterisation of substantive law as within one or other of the juridical concepts or categories rather than forthe determination of whether a statute is substantive in nature and not merely procedural. The Private InternationalLaw (Miscellaneous Provisions) Act 1995 (UK) leaves the law dealing with characterisation unaltered, exceptthat by s 9(2) it clarifies that characterisation for the purposes of private international law of issues arising in aclaim relating to tort is a matter for the courts of the forum: cf the pre-existing law n 14 below.

216 Dr Stuart Dutson

international law adopts theories that do not use juridical categories, such as the Americandoctrines of interest analysis or centre-of-gravity.8 However,9 the process ofcharacterisation may still be relevant for domestic purposes even if such doctrines wereadopted, in order to determine, for example, the applicable statutory limitation period.

II. The characterisation of statutory provisions in reported decisions

The courts have also made use of the technique of characterisation in cases in which theyare considering the application of a statute in a case involving foreign elements. 10 In manycases the territorial scope of a statute and/or the applicable extraterritorial service rule hasbeen determined by the court characterising the statute and then applying the choice oflaw rule and/or extraterritorial service rule applicable to the selected juridical category, tothe statute. 11

The court will only characterise the applicable provisions of a statute as within one orother of the juridical concepts or categories l2 if it considers that the provisions aresubstantive in nature and not merely procedural.13 In the case of the characterisation of astatutory cause of action it appears that the law which is applied to effect thecharacterisation is the law of the forum,14 a fortiori where it is a statutory law of the forumwhich is being characterised as opposed to a foreign law.

English and Australian courts have rarely discussed the characterisation of statutory

8 See, for example: M C Pryles, 'Tort and Related Obligations in Private International Law' [1991] II Reeueil desCours 9 at 118.

9 E F Scoles & P Hay, Conflict of Laws, (2nd ed), West Publishing Co, St Paul, 1992, pp 580-3; and contrastDicey and Morris (1993) p 35, n 10 and J M Fienman, 'The Jurisprudence of Classification' (1989) 41 StanfordLaw Review 661.

10 N Hennessey, Choice ofLaw Rules, ALRC Discussion Paper No 44, Australian Law Reform Commission, Sydney,1990, p 24, para 4.6.

11 See S Dutson, 'The Conflict of Laws and Statutes: the international operation of legislation dealing with mattersof civil law in the UK and Australia' (1997) 60 Modem Law Review 668.

12 The sense in which characterisation is relevant in this article. Contrast characterisation in the sense of thedetermination of whether a statute is substantive in nature and not merely procedural: see, for example, McKainv R W Miller & Co Ltd (1991) 174 CLR 1 and Stevens v Head (1992) 176 CLR 433.

13 See, for example, Li Lian Tan v Durham [1966] SASR 143 at 148. Cf Stevens v Head (1992) 176 CLR 433 at445 per Mason CJ.

14 In each case of characterisation discussed below this is the methodology which the court adopted either explicitlyor implicitly, and more generally the English and Australian courts will apply their own law in the process ofcharacterisation: see also Macmillan Inc v Bishopsgate Trust (No.3) [1996] 1 WLR 387 at 407 per Auld U;Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 443 (CA) (overruled in LonrhoPlc v Fayed [1992] 1 AC 448 but not on this point); Oceanic Sun Line Special Shipping Co Inc v Fay (1988)165 CLR 197 at 225 per Brennan J; R J Sharpe, Inter provincial Product Liability Litigation, Butterworths,Toronto, 1982, p 81; J G McLeod, The Conflict of Laws, Carswell Legal Publications, Calgary, 1983, pp 45-6;J J Fawcett, 'Products Liability In Private International Law: A European Perspective' [1993] I Recueil des Cours3 [Fawcett (1993)] at 196; A H Robertson, Characterization in the Conflict of Laws, Harvard University Press,Cambridge, 1940, pp 66-7; and J G Collier, Conflict ofLaws, (2nd ed), Cambridge University Press, Cambridge,1994, pp 16-17 and 19-20. Contrast the unsubstantiated doubts raised by Briggs as to whether or not it will bethe lex fori that will be used to characterise a matter under the Private International Law (Miscellaneous Provisions)Act 1995 (UK): A Briggs, 'Jurisdiction under Traditional Rules' in F Rose (00), Restitution and the Conflict ofLaws, Mansfield Press, Oxford, 1995, p 60. Section 9(2) of the Private International Law (MiscellaneousProvisions) Act 1995 (UK) clarifies that characterisation for the purposes of private international law of issuesarising in a claim relating to tort is a matter for the courts of the forum. In the USA the position is the same:Collins v American Automobile Insurance Company 230 F 2d 416 (1956), and Restatement Second Conflict ofLaws 2d (1971) s 7. It is irrelevant to my discussion to consider the vexed questions of what exactly it is that ischaracterised (however on this point note Dicey and Morris (1993) pp 35-40 and 44-6; A H Robertson, op citgenerally, and Collier, op cit 16-17 and 19-20) however in each case of characterisation discussed below thecourts have professed, be it explicit or implicitly in their reasons, to be characterisisng the rules of law and thelegal rights thereby conferred: cf Collier, op cit 16-17 and 19-21, and W R Lederman, 'Classification in PrivateInternational Law' (1951) 29 Canadian Bar Review 3 at 13.

The Characterisation of Product Liability Claims in Private International Law 217

causes of action. 15 The reason may well lie in the workings of the system of pleadings. 16As Collins has stated 'when the choice [of characterisations] is between causes of actionit will usually be unnecessary for the court to decide whether the action is in contract ortort. Provided that the plaintiff has a sufficient cause of action in one, it is no business ofthe court to force him on to the other. In this sense, the choice of the relevant rule willdepend more on the plaintiff than the judge' .17 A plaintiff need only plead the facts in hisstatement of claiml8 and, save in exceptional circumstances, the plaintiff need not chooseone cause of action over another in the interlocutory stages and then proceed on that basisonly: the plaintiff need only demonstrate that the facts as proved establish a legal claimof a category which entitles him to succeed in their claim and remedy sought. 19 However,Collins may be oversimplifying the matter somewhat. One of the exceptional circumstancesin which a plaintiff must choose a particular cause of action in the interlocutory stageswill be particularly common in cases in which characterisation is required, namely, casesin which service out of the jurisdiction is sought under, for example, RSC (Eng) 0 11 r 1or Federal Court Rules 0 8.20

In those cases in which the plaintiff attempts to serve proceedings out of the jurisdictionboth the plaintiff and the court must identify and characterise all of the cause(s) of actionwhich the plaintiff intends to pursue at trial in order to decide whether leave to serve outof the jurisdiction, or leave to proceed where leave to serve-out is not fIrst required, willbe granted at all and on what basis.21

Generally, the statutes which have been characterised by English and Australian courtshave not been those which create a statutory cause of action. They have been statutoryprovisions which affect a (possibly putative) legal relationship, legal right, or cause ofaction.22 The areas in which statutory provisions have been characterised include:transmission of claims on death (survival actions), wrongful death as a cause of action,23contribution, indemnity, and third party rights to pursue insurers directly. No thoroughanalysis of the characterisation of statutory provisions for private international lawpurposes24 has been attempted by jurists and no attempt has been made to analyse thereported decisions in this area and extract a judicial methodology.25 Indeed Briggs hasreCently stated, in discussing the Private International Law (Miscellaneous Provisions) Act1995 (UK), that '[i]t is inadequate for the Act airily to state,26 as it does, that thecharacterization of a claim as a tort is a matter for the courts of the forum.27 There is no

15 As distinct from statutory provisions which merely affect pre-existing rights.16 Cf L Collins, Essays in intemationallitigation and the conflict of laws, Oxford University Press, Oxford, 1994,

pp 356-7.17 Ibid.18 Or other originating proceeding.19 In re Vandervell's Trusts (No.2) [1974] Ch 269 at 321, cf Winfield and Jolowicz (1989) pp 3-4.20 Metall and Rohstoff A G v Donaldson Lufkin and Jenrette Inc [1990] 1 QB 391 at 436 and 472-3; Seaconsar

Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438 at 450; and The Siskina [1979] AC 210 at254-5

21 Cf Winfield and lolowicz (1994) P 4.22 See the cases cited in Dicey and Morris (1993) pp 20-1.23 Lord Campbell's Act type claims.24 In this context private international law purposes as opposed to domestic purposes means for the purpose of

founding the jurisdiction of the court or applying the appropriate choice of law rule: Ryder v Hartford Insurance[1977] VR 257 at 263, II 3-19.

25 The only attempts which the present author has been able to locate, and they are of very limited scope, areD Kingsford-Smith, and G Burton, 'Recent Problems with Characterization of Statutory Rights in the Conflict ofLaws' (1980) 9 Sydney Law Review 190; A Briggs, 'Choice of law in tort and delict' [1995] Lloyd's Maritimeand Commercial Law Quarterly 519 at 521; and cf M C Pryles, 'Tort And Related Obligations In PrivateInternational Law' [1991] II Recueil des Cours 9 at 139-65.

26 Section 9(2).27 Not least because characterization always is a matter for the courts of the forum. How could it be otherwise?


prior learning on which to base this characterization' .28 However, as will be demonstratedbelow, this comment does overstate somewhat the paucity of material on characterisation.

The concern of this article is those cases in which the plaintiff is attempting to applya statute of the forum to foreign persons or matters. Some of the cases discussed belowdeal with this situation whilst in others the court is considering the application of a foreignstatute to domestic persons or matters or the domestic application of a forum statute. Allthree permutations of the situations in which statutory provisions may be characterised arerelevant to an attempt to analyse the decisions in this field because in cases in which thecourt is attempting to apply a statute of the forum to foreign persons or matters decisionsdealing with the other two situations have been relied upon and vice-versa.

(a) Analysis of the reported decisionsThe classification of a statutory right or cause of action for private international lawpurposes is an area in which no systematic or detailed jurisprudence or analysis of thecases has been developed by the courts or attempted by jurists. Although the decided casesare often conflicting some consistently applied principles do appear to emerge.

In the vast majority of cases Parliament will not have expressed any intention regardingthe characterisation of a cause of action created by a statute. However, in some cases resorthas been had to other provisions of the legislation in order to identify any relevantparliamentary intention.29 However, it appears to the present author that this method isoften dubious at best and of no assistance in the characterisation of the CPA and TPA.As an analysis of the parliamentary debates dealing with the CPA reveal, provisions which,for example, extend the definition of tortfeasor or declare that Lord Campbell's Act typelegislation30 applies to a particular statutory cause of action, may merely be proyisionsincluded in the final Act out of an abundance of caution in the face of uncertainty overthe court's characterisation of the Act. This elucidation of the true parliamentary intentionrenders this reasoning inconclusive and circuitous for our purposes.31

Chief Justice Bray of the South Australian Supreme Court adopted a consistentapproach to cases of characterisation for private international law purposes.32 WhilstBray CJ's conception of 'quasi-contract' may no longer be accepted33 it is his Honour'smethodology in these cases which is presently of interest. For the purposes of theapplication of the relevant choice of law rule his Honour analysed the characteristicsand attributes of the statutory right or cause of action that he was concerned with. Hethen looked to the traditional juridical categories and chose that category to which hebelieved that the statutory right was most analogous. Similarly, the court in Gilchrist vDean34 asked the question whether the statutory cause of action it was considering didor did not 'resemble' a juridical category in an effort to characterise a foreign statutorycause of action for private international law purposes.35 A similar methodology has

28 A Briggs, 'Choice of law in tort and delict' [1995] Lloyd'.~ Maritime and CommerciallLlw Quarterly 519 at 52!.Footnotes included as they appear in the work. Cf Special Public Bill Committee - House of Lords, PrivateInternational Law (Miscellaneous Provisions) Bill [HL], Proceedings of the Committee with Evidence and theBill (as amended), HMSO, London, 1995, p 9 per Briggs in written evidence.

29 Plozza v South Australia Insurance Company [1963] SASR 122 and Building and Civil Engineering HolidaysScheme Management Ltd v Post Office [1966] 1 QB 247 (CA) per Pearson U

30 Ie wrongful death as a cause of action.31 Contrast Building and Civil Engineering Holidays Scheme Management Ltd v Post Office [1966] 1 QB 247 (CA)

at 265.32 Be they cases of characterisation of a statute of the forum for private international law purposes or the

characterisation of a statute of another jurisdiction for private international law purposes.33 However, his Honour's determination of the choice of law rule in restitutionary cases appears to have nevertheless

been correct: see, for example, Macmillan Inc v Bishopsgate Investment Trust Plc(No 3) [1995] 1 WLR 978 at991, and Dicey and Morris (1993) pp 1471ff.

34 (1958) 2 FLR 175.35 Cf Special Public Bill Committee (1995) in Committee 1 March 1995 at col 16 per Lord Meston.


been applied in cases characterising statutory causes of action for domestic purposes.36

A number of decisions have used academic definitions of tort which they have comparedto the relevant statutory provision in determining whether or not to characterise it as atort for domestic purposes.3? The history and character of the Act have also been reliedupon in characterisation for domestic purposes.38

There is authority39 for the proposition that whilst a statutory claim may not easily fitinto a traditional juridical category each claim must be fitted in to whichever category ismost appropriate.40 However, there is no decision of high authority which requires this. Ifa statutory cause of action is manifestly different to any of the traditional categories thereappears to be nothing to prevent the court declaring the action sui generis.41

It also appears that academic opinion,42 and decisions dealing with the characterisationof a statute of the forum for domestic purposes43 or the characterisation of a statute ofanother jurisdiction for private international law purposes,44 are all relevant in determiningthe characterisation of a statute of the forum for private international law purposes.

There is also authority for the proposition that the rubric 'tort' includes rights and causesof action created by statute as distinct from the common law.45 A number of decisions

36 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 6 and 14, Wardley Australia Ltd v WesternAustralia (1992) 175 CLR 514 at 534 per Brennan J, Kizheau Pty Ltd v W.G. & B. Pty Ltd (1995) 69 AUR787, Strong v Story [1892] 2 QB 515 at 517-18, Philip Morris Ltd v Ainley and Incorporated Nominal Defendant[1975] VR 345 at 347, and Building and Civil Engineering Holidays Scheme Management Ltd v Post Office[1966] 1 QB 247 (CA) at 261, 265.

37 Blomme v Sutton (1989) 52 SASR 576 at 582 per King CJ and at 591 per Legoe J (Millhouse J agreeing withboth Judges), and Philip Morris Ltd v Ainley and Incorporated Nominal Defendant [1975] VR 345 at 349.

38 Blomme v Sutton (1989) 52 SASR 576 at 588-94 per Legoe J (Millhouse J agreeing with both Judges), andStrong v Story [1892] 2 QB 515 at 517-18.

39 However a decision of a Supreme Court Master cannot be described as high authority.40 Baldry v Jackson [1977] 1 NSWLR 494 at 499-500 (It appears that his Honour thought that these categories did

not include sui generis: ibid 500). Cf M C Pryles, 'Tort and Related Obligations in Private International Law'(1991) II Recueil des Cours 9 at 118-19. Contrast semble Davenport v Corinthian Motor Policies at Lloyds[1991] SLT 774.

41 Cf Plozza v South Australia Insurance Company [1963] SASR 122, S W Cavanagh and C S Phegan, ProductptJbility in Australia, Butterworths, Sydney, 1983, pp 254-5; W R Lederman, 'Classification in PrivateInternational Law' (1951) 29 Canadian Bar Review 3 at 25; E I Sykes, & M C Pryles, Australian PrivateInternational Law, (3rd ed), Law Book Company, Sydney, 1991, p 202; Australian Law Reform Commission,Choice of Law, Report No 58, AGPS, Canberra, 1992, p 34; and Dicey and Morris (1993) p 44. Lederman wouldresort to classifying a foreign law as, in terms, sui generis only where 'there is no English dispositive rule evenremotely analogous': p 25: cf Nygh (1995) pp 222-3. Lederman stated that 'usually there will be some adequateanalogy': p 25. Contrast Nygh, op cit. Nygh does not appear to appreciate or allow that the traditional method(which he terms the 'analytical approach') can allow for situations in which a sui generis characterisation isappropriate. He states that 'The analytical approach is based upon the premise that each situation before the courthas its own legal character. But this is simply not true': p 227.

42 See PSM International PLC v Specialised Fastener Products (Southern) Ltd [1993] 20 FSR 113 at 116 (PatentsCounty Court).

43 See Plozza v South Australia Insurance Company [1963] SASR 122 at 127, and Williams v The Society oflloyd's[1994] 1 VR 274 at 311-12 (leave to appeal refused: FC Vic 17 February 1993, No 5412 of 1992). Cf SpecialPublic Bill Committee (1995) in Committee 1 March 1995 at col 14 per Lord Wilberforce.

44 See Baldry v Jackson [1977] 1 NSWLR 494 at 500.45 Blomme v Sutton (1989) 52 SASR 576 at 582 per King CJ and 593-4 per Legoe J (Millhouse J agreeing with

both Judges), Washington v Commonwealth (1939) 39 SR (NSW) 133 esp at 138-44 per Jordan CJ, Davidssonv Hill [1901] 2 KB 606, Philip Morris Ltd v Ainley and Incorporated Nominal Defendant [1975] VR 345 at 348and the cases there cited, Application Des Gaz SA v Falks Veritas Ltd [1974] 1 Ch 381 at 396, Downs v Williams(1971) 126 CLR 61 at 84, Best Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217 at 220 perWilcox J, Spotless Group Ltd v Proplast Pty Ltd (1987) 10 IPR 668 at 670 per King J, Morton-Norwich ProductsInc v Intercen Ltd [1978] RPC 501, The Electric Furnace Co v Selas Corporation of America [1987] RPC 23(CA) at 30-1, Baldry v Jackson [1977] 1 NSWLR 494 at 498-9 and the cases there cited, Australian CommercialResearch & Development Ltd v ANZ McLaughan Merchant Bank Ltd [1989] 3 All ER 65 at 72, Williams v TheSociety of Lloyd's [1994] 1 VR 274 at 311-12 (leave to appeal refused: FC Vic 17 February 1993, No 5412 of1992), Allstate life Insurance Co v Australia and New Zealand Banking Group Limited (unreported, FederalCourt of Australia, 7.11.94) per Beaumont J at 9, paras 6 and 7, and at 11 where Beaumont J characterised s 52as creating a tort for private international law purposes, and Koop v Bebb (1951) 84 CLR 629 at 640-1 and 648.Contrast ANZ Banking Group Ltd v Turnbull & Partners Ltd (1991) 33 FCR 265 at 276-7.


have stated46 that an essential feature, if a statutory action is to be characterised as anaction in tort, is that the action give rise to a claim for unliquidated damages.47 However,whilst this characteristic is essential if the statutory action is to be characterised as a tortits presence alone may not be conclusive of the issue.48 A recent Victorian decision appearsto require that the remedy for breach of the statute must not be a statutory remedy, ratherit must be provided for by the common law if the statutory cause of action is to becharacterised as a tort.49

One decision appears to have required that the statutory provision must purport to createa liability in the sense of an enforceable legal right rather than merely a norm of conduct,50if the provision is to be treated as a cause of action which, it appears would follow, itmust be if it is to be characterised according to the recognised juridical concepts andcategories.

In a number of cases the courts have stated that a statutory right or cause of actioncannot be characterised as a tort merely because it arises out of or depends upon a tort.51The same has been said in cases characterising a statutory right for domestic purposes.52

In other decisions the fact that in order to establish the statutory cause of action a tort hadto be proved, has not been determinative.53 In Borg Wagner (Australia) v Zupan MurphyJ noted, in support of not characterising the statutory cause of action as a tort, that it couldarise or subsist notwithstanding the extinction of the tort action out of which it arose.However, in some decisions the consideration that a right possesses a majority of theelements of a tort or requires the proof of a tort was a significant factor favouringcharacterisation as a tort,54 and elements irrelevant to tort liability did not prevent thischaracterisation.55 The same has been said in cases characterising for domestic purposes.56

In Gould v Incorporated Nominal Defendant57 it appeared that a statutory rigHt wascharacterised as tort because it changed the substantive law of tort.

It may be that unstated policy considerations have distorted or rendered the reasoningin the cases in this area somewhat contrived in appearance. The characterisation of astatutory cause of action as a tort requires the application of the tort choice of law rulethereto. Pre-Breavington v Godleman58 in Australia, and pre-Red Sea Insurance Co vBouygues SA 59 in England, it was at least arguable that, except in special circumstances,

46 Relying, inter alia, on cases of characterisation for domestic purposes.47 Borg Wagner (Australia) v Zupan [1982] VR 437 at 455, Downs v Seeker (unreported; Full Court Supreme Court

of South Australia; Jacobs, Mohr and Duggan JJ; 30 June 1989) per Duggan J, and Philip Morris Ltd v Ainleyand Incorporated Nominal Defendant [1975] VR 345; contrast Wilson Electric Transformer Company Pty Ltd vElectricity Commission of New South Wales [1968] VR 330 at 318, and Blomme v Sutton (1989) 52 SASR 576at 582 per King CJ (Millhouse J agreeing) where his Honour felt that this restriction was unwarranted.

48 Williams v The Society of Lloyd's [1994] 1 VR 274 at 311 (leave to appeal refused: FC Vic 17 February 1993,No 5412 of 1992).

49 Ibid at 312.50 Brown v Jam Factory Pty. Ltd (1981) 53 FLR 340.51 Arab Monetary Fund v Hashim (No.9) (unreported, High Court of Justice Chancery Division, Chadwick J,

29.7.94, digested in The Times 11 October 1994, p 503) at 12-13, Nominal Defendant v Bagot's Executors [1971]SASR 346 and Davenport v Corinthian Motor Policies at Lloyds [1991] SLT 774.

52 Ronex Properties v John Laing Construction Ltd [1982] 3 WLR 875, Genders v Government Insurance OfficeofNSW (1959) 102 CLR 363, Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 218, Unsworthv Commissioner for Railways (1958) 101 CLR 73 at 91; contrast Chadwick v Bridge (1951) 83 CLR 314 at 319.

53 Borg Wagner (Australia) v Zupan [1982] VR 437 and Davenport v Corinthian Motor Policies at Lloyds [1991]SLT 774.

54 Ryder v Hartford Insurance Co [1977] VR 257, Baldry v Jackson [1977] 1 NSWLR 494, Wilson ElectricTransformer Co Pty Ltd v Electricity Commission of NSW [1968] VR 330 at 332, Lucas v Gagnon (1992) 99DLR (4th) 125 at 138.

55 Ryder v Hartford Insurance Co [1977] VR 257.56 Building and Civil Engineering Holidays Scheme Management Ltd v Post Office [1966] 1 QB 247 (CA) at 265,

Gran Gelato Ltd v Richcliff(Group) Ltd [1992] 1 All ER 865 at 875.57 [1974] VR 488.58 (1988) 169 CLR 41.59 [1995] 1 AC 190 (PC).


the tort choice of law rule required the application of the lex fori as the lex causae in allcases and barred any recovery where a foreign lex loci delicti did not allow for recovery.Therefore in order to avoid the tort choice of law rule and these two ensuing conditions,it may be that the courts tended to avoid characterising a statutory cause of action as atort, particularly in the case of foreign statutes where to do so would deny an injured orwronged plaintiff any form of recovery by virtue of some lacuna in domestic law.60 Ofcourse, this policy consideration may not have been stated expressly in the judgments.

In Ryder v Hartford Insurance Co Ltd61 the court appeared to state that a decisioncharacterising a cause of action for domestic purposes is of very limited, if any, utility inthe characterisation of a cause of action for private intemationallaw purposes. However,the court later made mention of cases characterising statutory rights and causes of actionfor domestic purposes apparently in support of its characterisation of a statutory right forprivate intemationallaw purposes. Many other decisions have used decisions characterisinga statutory right for domestic purposes in their determination for private international lawpurposes62 and the process of characterisation for domestic purposes appears to follow thesame process, i.e. the comparison of a statutory right or cause of action with recognizedjuridicial categories and the characterisation of the right or cause of action as being withinthat category which it most resembles.

In American Express Co v British Airways Board63 the Court was called upon toconsider the classification of an action under article 18 of the amended Warsaw Conventionas set out in Schedule 1 to the Carriage by Air Act 1961 (UK). If the action was a'proceeding in tort' then the defendant would have enjoyed statutory immunity from suitby virtue of s 29 of the Post Office Act 1969 (UK). The Court equated an action basedupon a statutory cause of action, such as the actions created by the Fatal Accidents Act1846 (UK) or s 30 of the Post Office Act 1969 (UK),64 with breach of statutory duty,which the Court classified as a tort. Accordingly article 18 was classified as being 'tortious'in character.65 In American Express Co v British Airways Board,66 a case which may wellhave been dealing with breach of statutory duty, the Court unnecessarily and incorrectlygeneralised in its decision without giving any consideration to the true position.67 If theCourt's position is correct then sovereign parliaments, as opposed to courts, can nevercreate a cause of action in tort. The court need not have attempted to characterise eachand every statutory cause of action. All statutory causes of action cannot be subsumedunder the rubric breach of statutory duty. Statutes such as, for example, the variouscommon law jurisdictions Lord Campbell's Act type legislation, the Copyright, Designs

60 Cf J G Collier, Conflict ofLaws, (2nd ed), Cambridge University Press, Cambridge, 1994, pp 226-7; D St LedgerKelly, Localising Rules in the Conflict of Laws, Woodley Press, Adelaide, 1974, pp 9-10; Cheshire and North(1992) pp 560-1; The Law Commission and the Scottish Law Commission, Private International Law: Choiceof Law in Tort and Delict, Report No 193 (LC) and 129 (SLC), HMSO, London, 1990, p 17; C G J Morse,Torts in Private International Law, North Holland Publishing Co, Amsterdam, 1978, pp 144-145; J Goldring,'Product Liability And The Conflict Of Laws In Australia' (1978) 6 Adelaide Law Review 413 at 423; L Collins,Essays in internat;onallitigation and the conflict of laws, Oxford University Press, Oxford, 1994, pp 360-1; NHennessey, Choice of Law Rules, ALRC Discussion Paper No 44, Australian Law Reform Commission, Sydney,1990, pp 24-5. See, as possible examples, Nominal Defendant v Bagot's Executor [1971] SASR 346, BorgWagner (Australia) v Zupan [1982] VR 437 and Plozza v South Australia Insurance Company [1963] SASR 122.

61 [1977] VR 257.62 Borg Wagner (Australia) v Zupan [1982] VR 437, Nominal Defendant v Bagot's Executor [1971] SASR 346,

Ryder v Hartford Insurance Co Ltd. [1977] VR 257 and Gilchrist v Dean (1958) 2 FLR 175 (Victorian SupremeCourt).

63 [1983] 1 WLR 701 (QB Division).64 Ibid at 708.65 Ibid at 709.66 [1983] 1 WLR 701 (QB Division).67 It may be that the court in Philip Morris Ltd v Ainley and Incorporated Nominal Defendant [1975] VR 345 at

349, II 30-40 was labouring under a similar misconception. See too D Howarth, Textbook on Tort, Butterworths,London, 1995, p 366 and Goldring, op cit.


and Patents Act 1988 (UK), Defective Premises Act 1972 (UK), Misrepresentation Act1967 (UK), Part I of the Consumer Protection Act 1987 (UK), Commerce Act 1986 (NZ),Fair Trading Act 1986 (NZ), Fair Trading Act 1989 (Qld),68 s 995 Corporations Law(Cth),69 and the Trade Practices Act 1974 (Cth),7° create intricate and extensive regimesfor the operation of new causes of action which the legislature has deemed it necessaryto create to exist alongside common law causes of action such as negligence and nuisance.These causes of action owe nothing and take nothing in their operation from the lawdealing with breach of statutory duty.71 They do not depend for their existence on penallegislation or legislation establishing a statutory duty simpliciter. They are codified causesof action creating a detailed scheme of civil liability which sets out who is liable and whomay bring an action and the elements of the cause of action which the plaintiff must provein order to be entitled to the remedy provided for by the statute.72 Whilst claims broughtunder these statutes may be described as being for breach of statutory duty,73 thatdescription becomes objectionable if any consequences follow from the employment ofthat nomencIature.74

In Brown v Jam Factory Pty Ltd75 Fox J of the Federal Court of Australia, indetermining whether the relevant conduct in that case was misleading or deceptive withinthe meaning of s 52 of the Trade Practices Act 1974 (Cth) stated that

Section 52(1) is a comprehensive provision of the wide impact, which does not adopt the languageof any common law cause of action. It does not purport to create a liability at all; rather does itestablish a norm of conduct, failure to observe which has consequences provided for elsewherein the same statute, or under the general law ... In my view effect should be given to the ordinarymeaning of the words used. They should not be qualified or (if it be possible) expanded, byreference to established common law principles of liability. At the same time, known concepts,such as those concerning the torts of deceit and passing off and the analyses made of them overthe years, may prove helpful in deciding a case under s 52(1).76

68 Each Australian State and Territory has an equivelant Act.69 As the Commonwealth Act in the Commonwealth-State joint legislative scheme.70 Cf also s 411(1) of the Victorian Mines Act 1958 (UK).71 Cf Swenson v Emerson Electric Co 374 NW 2d 690 at 694 (Minn 1985); N Hennessey, Choice of Law Rules,

ALRC Discussion Paper No 44, Australian Law Refonn Commission, Sydney, 1990, p 36; J C Campbell QC,'Contribution, Contributory Negligence and Section 52 of the Trade Practices Act - Part I' (1993) 67 AustralianLaw Journal 87, and J C Campbell QC, 'Contribution, Contributory Negligence and Section 52 of the TradePractices Act - Part II' (1993) 67 Australian Law Journal 177 at 177ff. However at 108, Campbell somewhatincongruously classifies s 52 both as a statutory tort and breach of it as the tort breach of statutory duty; I Griscti,'Part VA of the Trade Practices Act and third party proceedings' (1995) 6 Australian Product Liability Reporter94 at 95; N Isaacs, 'Quasi-Delict in Anglo-American Law' (1922) 31 Yale Law Journal 571 at 578; M Brazier,Street on the Law of Torts, (9th ed), Butterworths, London, 1993, [Street (1993)] p 334, esp n 12; K M Stanton,Breach of Statutory Duty in Tort, Sweet & Maxwell, London, 1986, [Stanton (1986)] p 8; P S James and D J LBrown, General Principles of the Law of Torts, Butterworths, London, 1978, p 109; and B S Markesinis & S FDeakin, Tort law, (3rd ed), Clarendon Press, Oxford, 1994, [Markesinis et al (1994)] p 537; contrast op cit n 67,Teare v British Nuclear Fuels Pic (unreported, Supreme Court of Victoria, Harper J, 19 October 1993), andOfficial Report, House of Lords, vol 485, col 874-5, 8 March 1987 per the Lord Advocate where his Lordshipappears to have erred in assuming otherwise.

72 Contrast for example Part I of the CPA 1987 and s 41 (1) thereof.73 For example: B A Hepple and M H Matthews, Torts: Cases and Materials, Butterworths, London, 1991, p 531;

Goldring, op cit; T Young, Product Liability Laws and Policies, ALRC Research Paper No 1, Australian LawRefonn Commission, Sydney, 1988, [Young (1988)] paras 317--43 but contrast the treatment at paras 225-9 and344-66; and S M Waddams, Products liability, (3rd ed), Carswell, Toronto, 1993, pp 120-1.

74 Cf Stanton (1986) p 8, Young (1988) paras 225-9 and 334, and Markesinis et al (1994) P 537. One reason whythe distinction between a statutory cause of action that is a tort and breach of statutory duty may be salient isthat a requirement that all statutory rights and causes of action fall within the rubric breach of statutory duty maywell serve to preclude the characterisation of a statutory cause of action as anything other than a tort.

75 (1981) 53 FLR 340.76 Ibid at 348-9. Approved Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations

Inc [1988] ATPR 40-916 at 49,846-49,847. Cf The Phosphate Co-Operative Company of Australia limited vSGS Supervision Services Inc (unreported, Federal Court, Gray J, 7.4.93, No VG 257 of 1992 FED No 206) at3; semble Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.


The provisions of the CPA and TPA, in contrast to the provision which Fox J wasdealing with, do purport to create a liability rather than merely a norm of conduct; bothprovide that in specified circumstances a person may take proceedings to obtain a specifiedremedy.77 Moreover, Fox J's analysis appears to fail to take account of the reality of theinterrelationship between s 52(1) and the other provisions of the Act. Statutory provisionsshould not be read in isolation from the other provisions in the Act,78 and whilst it is tritethat the precise words of s 52{I) do not purport to create a cause of action, it appears tobe significantly oversimplifying the matter to ignore the fact that the effect of the operationof s 52(1) and other provisions of the Trade Practices Act 1974 such as s 82 in conjunctionis to do just that, indeed this is how s 52(1) is perceived by jurists and practitionersalike - as a distinct cause of action.79

In Williams v The Society of Lloyd'sSO McDonald J of the Supreme Court of Victoriacharacterised s 52 of the Trade Practices Act 1974 (Cth) and s 11 of the Fair Trading Act1985 (Vic)81 in considering of the rule under which service out of the jurisdiction mightbe sustained. His Honour noted with approval the analysis of s 52 in Brown v Jam FactoryPty Ltd82 and Gates v City Mutual Life Assurance Society Ltd. He then stated that'[a]lthough the measure of damages for breach of the provisions of s 52 are that appropriateto damages in tort it does not follow that such breach constitutes a "tortious act oromission" .,S3

He then quoted extensively from Menhennitt J in Philip Morris Ltd v Ainley andIncorporated Nominal DefendantS4 and stated:

The remedy provided for by s 82 of the Trade Practices Act for breaches of s 52 of that Actalthough it rests in damages is a statutory remedy. Applying the reasoning of Menhennitt J, I amof the view that a breach of the provisions of that section do not constitute a 'tortious' act oromission. Accordingly, the provisions of r. 7.01(1)0)85 do not provide authority for service outof the jurisdiction of this court of its process in respect of an action claiming damages for breachof the provisions of s 52 of the Trade Practices Act (Cth) or s 11 of the Fair Trading Act (Vic)as the damages soug~t to be recovered are not caused by a 'tortious' act or omission.86

In approving and applying the reasoning of Menhennitt J in Philip Morris Ltd v Ainleyani1 Incorporated Nominal Defendant,S7 McDonald J must be taken to concur inMenhennitt J's statement that 'tort' includes rights created by a statute. McDonald J'sreservations about the characterisation of breaches of s 52 of the TPA as a 'tort' areinapplicable to both the CPA and the TPA because both statutes merely create the cause

77 See Hooper v Hooper (1955) 91 CLR 529 at 535-6.78 See, for example, Daymond v Plymouth City Council [1976] AC 609 at 651 per Lord Kilbrandon (HL) and

Cooper Brookes (Woollongong) Pty Ltd v Commissioner o/Taxation (1981) 147 CLR 297 at 304 per Gibbs CJ.79 See, for example, Seimm Societa Esercizio lndustrie Moto Meccaniche SPA (Trading as Moto Guzi) v Eurocycle

Pty Ltd (1995) 64 SASR 461 at 469-70 per Duggan J (King CJ and Nyland J concurred) and cf 470, and cf 470per King CJ and 462 per Nyland J; Jellyn Pty Ltd v State Bank 0/ South Australia [1996] 1 Qd R 271 (CA);Sedgwick Limited v Bain Clarkson limited (ria Bain Hogg limited) (1995) ATPR 41-411 at 40,556-40,557,40,559 and 40,560; Astra AB v Delta West Pty Ltd (unreported, Supreme Court of Victoria, 5.12.94) at 22; ANZBanking Group Ltd v Turnbull & Partners Ltd (1991) 33 FCR 265 at 276-277; F Trindade & P Cane, The Lawo/Torts in Australia, (2nd 00), Oxford University Press, Melbourne, 1993, pp 171, 188-9, and 239-42. Contrastop cit n 76.

80 [1994] 1 VR 274 (leave to appeal refused: FC Vic 17 February 1993, No 5412 of 1992).81 These sections are in identical tenus.82 (1981) 53 FLR 340.83 [1994] 1 VR 274 at 311.84 [1975] VR 345.85 The Supreme Court Rule (Vic) which allowed for service of process out of the jurisdiction if 'the proceeding is

brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omissionwherever occurring'.

86 [1994] 1 VR 274 at 312.87 [1975] VR 345.


of actionlright88 without providing the plaintiff with a 'statutory remedy' such as s 82 forbreach of those provisions - the statutes provide in the provision which establishesliability that, in the case of the CPA,89 that the defendant shall be liable for the damageetc. caused, and, in the case of the TPA,9O the defendant shall be liable to compensate theplaintiff for the damage etc. caused. A somewhat disturbing aspect of McDonald J'sdecision is that his Honour appeared to draw the distinction between statutory provisionswhich do and do not create a tort on the basis of whether the provision provides explicitlythat the remedy for its breach is to be damages. It appears that on McDonald J's reasoningit is only if a provision merely creates a cause of action without providing any remedy forbreach of it that it can be characterised as creating a tort. This appears to be a nonsensicalvictory of form over substance which this author finds difficult to reconcile with most ofthe other decisions dealing with characterisation and a perceived judicial propensity awayfrom a determination on the basis of form over substance.91

(b) Conclusion

It appears from the reported decisions in which a statutory provision has been characterisedfor private international law purposes that the provision must be compared to theestablished juridical categories and characterised as the category which it is most analogousto or most resembles. Decisions characterising an analogous domestic or foreign provisionfor either domestic or private international law purposes and provisions of the relevantlegislation which evince Parliament's intention on the issue of characterisation are of utilityin this regard. It appears from the cases that the law of tort can include statutory causesof action such as those created by the CPA or TPA,92 however a provision which createsa cause of action must provide for unliquidated damages as a remedy if it iSM to becharacterised as a tort.

III. Analysis of the traditional legal categories which may be appropriate

Many statements of what contract law and tort law regulate abound. It is axiomatic thatcontract law covers obligations which have been freely entered into by one party to anotherwhilst tort covers non-contractual obligations imposed by law.93

There is an infinite variety of tortS.94 The essential features of different torts differ.They regulate different kinds of conduct. They protect different interests. They involvedifferent standards of liability. As Lord Denning said in the House of Lords during thedebate on the CPA, textbooks treat many cases of strict liability as torts. The examplewhich his Lordship gave - the escape of dangerous things95 - was not exhaustive. Otherstrict liability actions characterised as under the rubric tort include: liability for animals,96

88 Sections 2(1) and 75AD-AG respectively.89 See s 2(1) of the CPA.90 See the liability actions in the TPA, ie ss 75AD, 75AE, 75AF and 75AG.91 Cf Professor Nygh of Bond University, Australia, in a letter to the present author dated 14 August 1995.92 Op cit n 45.93 See, for example: Kleinwort Benson Ltd v City of Glasgow District Council [1996] 2 All ER 257 at 273 per

Millett U(CA); R W M Dias, (ed) Clerk and Lindsell on Torts, (16th ed), Sweet & Maxwell, London, 1989,para 1-04 [Clerk and Lindsell (1989)]; Winfield and Jolowicz (1994), pp 5-6; and Markesinis et al (1994) pp 89. Contrast L Collins, Essays in intemationallitigation and the conflict-of laws, Oxford University Press, Oxford,1994, Ch IX, esp pp 352-5 and 361.

94 Chapman v Pickersgill (1762) 2 Wilson 145 at 146 per Pratt CJ; Read v J Lyons & Co Ltd [1947] AC 156 at182 per Lord Simonds; Markesinis et al (1994) pp 16-20.

95 See Rylands v Fletcher (1868) LR 3 HL 330. This tort exists at least in England (Cambridge Water Co v EasternLeather Plc [1994] 2 AC 264 (HL)), but it appears that it no longer exists as a separate tort in Australia: BurniePort Authority v General Jones Pty Ltd (1994) 179 CLR 520.

96 In the UK the common law before the Animals Act 1971 (UK) was strict liability and this remains the positionin Australia: see for example, Markesinis et al (1994) P 475, and Clerk and Lindsell (1989) para 1-95.

The Characterisation of Product Liability Claims in Private Intemational Law 225

breach of statutory duty simpliciter,97 vicarious liability,98 trespass to land,99 the escape offire,loo defamation,101 conversion102 and forms of nuisance.103 These torts do not requirefault. They are actionable upon proof of the relevant conduct or event and proof of damage.There is much writing of distinguished jurists which considers whether tort law embracesstrict liability,- or is itself moving towards strict liability, or advocates such a move. 104 Itappears to be universally accepted amongst jurists that fault is not an essential element oftort and strict liability torts do exist. 105 There are also judicial statements of high authorityto the same effect. 106 It follows that tort does not require that the cause of action requireproof of fault or be formulated in terms of a duty, unless, perhaps, it be the case that aperson can have a duty to insure or guarantee a state of affairs.

IV. The characterisation of similar causes of action (ie strict productliability) in other jurisdictions

(a) United States ofAmericaIn the USA the law governing compensation for personal injuryl07 is part of the lawof each State. Strict products liability law developed from breach of warranty in

97 See for example: X and others (minors) v Bedfordshire County Council [1995] 3 All ER 353 (HL) at 364-5 andMarkesinis et al (1994) P 310.

98 See for example Markesinis et al (1994) P 497, Clerk and Lindsell (1989) para 1-94. Cf Stavely Iron & ChemicalCo v Jones [1956] AC 627 and Imperial Chemical Industries Ltd v Shatwell [1965] AC 656. Contrast Ringelsteinv Redford Cattle Company Pty limited [1995] 1 Qd R 433 at 437 (CA).

99 See for example: Markesinis et al (1994) pp 413-4, Clerk and Lindsell (1989) para 1-86.100 The 'ignis suus' rule. See: H & N Emanuel Ltd v Greater London Council [1971] 2 All ER 835 at 838-9 (CA)

and see Bunzie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (High Court of Australia) for auseful discussion of the English position and the contrary Australian position; and Clerk and Lindsell (1989) para1-93.

101 See for example: Clerk and Lindsell (1989) para 1-91 (although statutory changes in all jurisdictions have madeliability less strict).

102 See for example: Markesinis et al (1994) P 407, Clerk and Lindsell (1989) para 1-87.103 See for example: Markesinis et al (1994) pp 430-3 and Clerk and Lindsell (1989) para 1-88.104 This is particularly so in the United States of America. Examples include: Markesinis et al (1994) pp 472-4; R

A Epstein, A Theory of Strict Liability, CATO Institute, San Francisco, 1980; G Calabresi & 1 T Hirschoff,'Toward a Strict Liability in Torts' (1972) 81 Yale Law Journal 1055; R A Posner 'Strict Liability: a comment'(1973) 2 Journal of Legal Studies 205; contrast S Stoljar, 'Concerning Strict Liability', in P D Finn (ed), Essayson Torts, Law Book Co, Sydney, 1989, Ch 11.

105 See, for example, D Howarth, Textbook on Tort, Butterworths, London, 1995, p 35; Clerk and Lindsell (1989)paras 1-10-1-13 and 1-85-1-95, Winfield and lolowicz (1994) pp 47 and 49-50; S M Waddams, ProductsLiability, (3rd ed), Carswell, Toronto, 1993, pp 127-30 and 157; 1 G Heming, The Law of Torts, (8th ed) LawBook Co, Sydney, 1992, Chs 1, 15 and 23; P D Finn (ed), Essays on Torts, Law Book Co, Sydney, 1989, Chs1 and 11; N Isaacs, 'Quasi-Delict in Anglo-American Law' (1922) 31 Yale Law Journal 571 at 573; P H Winfield,The Province of the Law of Tort, Cambridge University Press, Cambridge, 1931, pp 216-18 and 242. ' "Fault"has never been an essential element in defining tort in English law': p 242; Note also in a private internationallaw context, W E Beckett, 'The Question of Classification ('Qualification') in Private International Law' (1934)15 British Yearbook of International Law 46 at 63, n 2, and A A Ehrenzweig, Ehrenzweig on Conflict of Laws,West Publishing Co, St. Paul, 1962, p 548.

106 Read v J Lyons & Co Ltd [1947] AC 156 at 166-7 per Viscount Simon, 175-6 per Lord Porter, 182-3 per LordSimonds, contrast Lord Macmillan at 171-3 (generally and nuisance and the rule in Rylands v Fletcher); Hollinsv Fowler (1875) LR 7 HL 757 at 764 per Blackburn 1 and 795 per Lord Chelmsford (conversion); E. Hulton vJones [1910] AC 20 at 23-4 (defamation); Cambridge Water Co v Eastern Leather Plc. [1994] 2 AC 264 at297-8 (nuisance and the rule in Rylands v Fletcher); Burnie Port Authority v General Jones Pty Ltd (1994) 179CLR 520 at 541 per Mason Cl, Deane, Dawson Toohey and Gaudron 11, at 564-5 per Brennan 1 and at 587and 590-3 per McHugh 1 (escape of fire and the rule in Rylands v Fletcher and generally); Goldman v Hargrave[1967] 1 AC 645 at 657 per Lord Wilberforce (nuisance); Rapier v London Tramways Co [1893] 2 Ch 588 (CA)at 600 per Lindley U (nuisance), and Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 42-3per Wilson and Dawson 11 (generally).

107 And hence the law governing strict products liability.


contractl08 and, in most States, it has developed into strict liability in tort. I09 SomeStates still classify such an action as breach of warranty and in some States it isadvisable for the plaintiff to plead both types of action as separate causes of action. llo

The warranty that may be used in strict products liability actionsIII will be an expresswarranty1l2 or an implied warranty that the goods are merchantable1l3 or fit for theirpurpose.114 These warranties have been extended to consumers of products not in privityof contract with the manufacturer such that the warranty runs with the goods from themanufacturer to the ultimate consumer.115

Section 402A of the Restatement (Second) of Torts,1l6 which encapsulates the law formany States,117 states that the basis of liability is tort. 118 However, both the reporters ofthe Restatement (Second) of Torts and Dean Prosser have acknowledged that the samesubstantive law could be applied by a court although classified as breach of warranty. I19The professed utility of classifying the rule as tort is that many of the contract-basedrestrictions which have hindered recovery in the past will not hinder an action based upons 402A.120 Contractual hindrances which are considered include privity limitations anddisclaimers. 121 This view may be oversimplifying the matter somewhat in that theclassification of a cause of action is still relevant for the purposes of wrongful deathstatutes,122 statutes of limitation,I23 and, in some States, in the selection of the relevant

108 However at least one jurist has noted, in the context of the characterisation of strict products liability actions, thehistory of warranty as a tort concept before it became a contract concept: P B Rasor, 'The History of Warrantiesof Quality in the Sale of Goods: Contract or Tort - A Case Study in Full Circle' (1982) 21 Washburn LawJournal 175.

109 See: Greenman v Yuba Power Products Inc 27 Cal Rptr 697 (1963) (tort); Hunt v Blasius 370 NE 2d 617 at 620(1977), affinned 384 NE 2d 368 (1978) 'negligence, failure-to-warn, and strict liability are all grown from thesame root'.; Victorson v Bock Laundry Machine Co. 373 NYS 2d 39 (1975) (tort); Austin v Ford Motor Co, 86Wis 2d 628, 273 NW 2d 233 (1979); Cline v Prowler Industries 418 A 2d 968 (Del 1980) (warranty); Swanz vGeneral Motors Corp. 375 Mass 628, 378 NE 2d 61 (1978) (warranty); R W Bieman, 'Strict Products Liability:An Overview of State Law' (1987) 10 Journal of Product liability 111.

110 See Victorson v Bock Laundry Machine Co. 373 NYS 2d 39 at 41 (1975); Bieman op cit; and Royal Commissionon Civil Liability and Compensation for Personal Injury, Final Repon, HMSO, London, 1978, pp 72-3.

111 See also for general discussions of strict products liability actions based upon breach of an express or impliedwarranty: G Howells, Comparative Product liability, Dartmouth Publishing Co, Aldershot, 1993 pp 201-5; andC J Miller & P A Lovell, Product Liability, Butterworths, London, 1977 pp 15-17.

112 Section 2-313 of the Uniform Commercial Code [VCC] defines express warranty as being any affirmation of factor promise made by the seller to the buyer in relation to the goods which becomes part of the bargain. Anydescription, sample or model creates an express warranty that the goods correspond to that description, sampleor model. The warranty may be written, oral or even communicated by pictures rather than words: see, forexample, Howell (1993) pp 202-3.

113 Section 2-314 of the UCC.114 Section 2-315 of the UCC.115 See, for example, section 2-318 of the VCC, and cases at common law such as: Henningsen v Bloomfield Motors

Inc 32 NJ 358, 161 A 2d 69, 74 ALR 2d 1 (1960); Rogers v Toni Home Pennanent Co 167 Ohio St 244, 147NE 2d 612, 4 0 0 2d 291 (1958).

116 American Law Institute, Restatement of the Law (Second): Tons, (2nd ed), American Law Institute Publishers,St Paul, 1965.

117 See R W Bieman, 'Strict Products Liability: An Overview of State Law' (1987) 10 Journal of Product Liability111.

118 See comment m.119 See comment m to section 402A and Prosser (1966) p 804, respectively.120 Cf Center Chemical Company v Parzini 218 SE 2d 580 (1975).121 See: R L Frumer & M I Friedman, Products Liability, M Bender & Co, Albany, 196Q-(loose-leaf service) section

3.03 [4] [a], comment m to section 402A. Note also other possible hindrances inherent in the use of the warrantyconcept: the necessity for a 'sale' (see Laskey v Economy Grocery Stores 65 NE 2d 305 (Mass 1946»; and theprocedural rules of s 2-607(3) of the uec requiring adequate notice of the breach..

122 Ford Motor Co v Carter 141 Ga App 371, 233 SE 2d 444 (1977) reversed 239 Ga 657, 238 SE 2d 361 (1977),Barrett v Superior Coun (Paul Hubbs) 272 Cal Rptr 304 (Cal App 4 Dist 1990)

123 Martin v Julius Dierck Equipment Co 374 NE 2d 97 (1978), Branden v Gerbie 379 NE 2d 7 (1978), Victorsonv Bock Laundry Machine Co 373 NYS 2d 39 (1975), Moss v Polyco Inc. 522 P 2d 622 (1974).


choice of law rule.124 The result is that in those States which recognise strict productsliability the legal basis for the claim will be breach of warranty and/or tort. 125

It appears that the' better view is that of the three strict products liability actions possiblyavailable to a plaintiff in the USA,126 the causes of action created by the CPA and theTPA are most analogous to a strict products liability action in tort. 127 The implied warrantyconcepts of merchantability and fitness for purpose are irrelevant to a CPA or TPAaction. 128 The CPA and TPA are not predicated upon promises or representations eitherexpress or implied from the manufacturer. As in the case of strict products liability in tort,liability is dependant upon proof of a defect. Whilst the definitions of defect in Americanstrict products liability in tort on the one hand and the CPA and TPA on the other maynot be identical,129 in both cases liability is predicated on the plaintiff or their propertybeing damaged because a good manufactured by the defendant has a particularcharacteristic.130 No representation by the manufacturer has to be identified.

(b) The European Court of Justice and the domestic courts of the EuropeanCommunities' States

In Kalfelis v Schroder, Munchmeyer, Hengst & C0131 the European Court of Justicedecided that concepts in the 1968 Brussels Convention must be interpreted independentlyby reference to the system and objectives of the Convention and not simply as referringto the national law of a contracting State. Further, the term 'matters relating to tort, delictor quasi-delict' in article 5(3) of the Convention must be regarded as an independentconcept encompassing all liability that does not relate to a contract.132

An action brought under Part I of the CPA is not a matter relating to a contract withinthe meaning of article 5(1) of the 1968 Brussels and 1989 Lugano Conventions,133therefore, even in the absence of s 6(7) of the CPA, such an action would be classified asrelating to 'tort, delict or quasi-delict' for the purpose of the Conventions.134

In Jakob Handte GmbH v Traitements Mecano-chimiques des Surfaces135 the EuropeanCourt of Justice was called upon to decide an issue very similar to the characterisation of

124 For example those States in which the Restatement (Second) of Conflict of Laws 2d is followed: cf E F Scoles& P Hay, Conflict oflAws, (2nd ed), West Publishing Co, St Paul, 1992, pp 569-80; F V Harper, 'Torts, Contracts,Property, Status, Characterisation, and the Conflict of Laws' (1959) 59 Columbia Law Review 440; contrast J MFienman, 'The Jurisprudence of Classification' (1989) 41 Stanford lAw Review 661.

125 See: J W Wade, 'On the Nature of Strict Tort Liability For Products' (1973) 44 Missouri lAw Journal 825 at829, W P Keeton (00), Prosser and Keeton on Torts, (5th ed), West Publishing Co, St Paul, 1984, p 678. Thereporters of the Restatement (Second) of Torts acknowledged this in Comment m to section 402A American LawInstitute, Restatement of the Law (Second): Torts, (2nd ed), American Law Institute Publishers, St Paul, 1965.

126 Ie strict liability in tort, breach of an express warranty, and breach of an implied warranty.127 Cf J Goldring, L W Maher, & J McKeough, Consumer Protection Law, (4th ed), Federation Press, Sydney, 1993,

p 99.128 Cf M C Pryles, 'Tort and Related Obligations in Private International Law' [1991] II Recueil des Cours 9 at 119.129 See A Stoppa, 'The concept of defectiveness in the Consumer Protection Act 1987: a critical analysis' (1992) 12

Legal Studies 210.130 Ie it is defective, whatever the precise definition of defect may be.131 (Case C-189/87) [1988] ECR 5565.132 See the opinion of the Advocate General in Jakob Handte GmbH v Traitements Mecano-chimiques des Surfaces

(Case C-26/91) [1993] IL Pr 5 at 7. See also Reichert and Kockler v Dresdner Bank (Case C-261/90) [1992-3I] ECR 2175 at 2179-80.

133 These two Conventions were brought into force in the United Kingdom by the Civil Jurisdiction and JudgmentsAct 1982 (UK) (as amended to incorporate the Lugano Convention by the Civil Jurisdiction and Judgments Act1991 (UK». Herein they are referred to collectively as 'the Conventions'. The provisions of the Conventions thatare relevant to this article are identical.

134 See Kalfelis v Schroder, Munchmeyer, Hengst & Co (Case C-189/87) [1988] ECR 5565 at 5585, see also Reichertand Kockler v Dresdner Bank (Case C-261190) [1992-3 I] ECR 2175 at 2179-80 and Shevill v Presse AllianceSA (Case C-68/93) [1995] 2 AC 18 (ECJ) per AG Darmon at 47; and see further below. Cf P Kaye, PrivateInternational Law of Tort and Product Liability: Jurisdiction, Applicable lAw and Extraterritorial ProtectiveMeasures, Dartmouth Publishing Co Ltd, Aldershot, 1991, pp 17-18.

135 (Case C-26/9l) [1993] IL Pr 5.


Part I of the CPA and Part VA of the TPA. The plaintiff commenced proceedings inFrance against, inter alia, a German company that had supplied an intermediary withindustrial equipment, claiming that the equipment was unfit for its purpose. The plaintiffhad no contract with the defendant. The French Cour de Cassation referred the questionwhether article 5(1) of the Brussels Convention applied to a dispute between a subsequentpurchaser and the manufacturer over the fitness for purpose of a product to the EuropeanCourt of Justice. The Product Liability oirective was not relevant because there was nodamage to persons or property other than to the defective product itself. 136 Under Frenchlaw, notwithstanding that there was no contract between the parties, the plaintiffs claimwas characterised as contractual. 137

In its submissions the German Government contended that a manufacturer's liability toa sub-buyer is founded in 'tort, delict or quasi-delict' .138 It contended that thecharacterisation of the liability as a tort was borne out by the Product Liability Directive.139

Moreover, it was submitted, liability in contract presupposes that the manufacturer has, bysome independent act on their part, bound themselves as opposed to the plaintiff; there isno such act as between a manufacturer and the end-user of a product. l40

The Advocate General's opinion is of assistance for present purposes. The AdvocateGeneral noted the German Government's arguments and proceeded to analyse how thecontracting States would classify the liability. He noted that the type of claim in whichthese proceedings were concerned (namely pure economic loss caused by the supply ofgoods that are not fit for their purpose), was not recognised in most States and if it was,it was usually treated as contractual.141 He stated that if the claim in issue were in respectof physical damage to the plaintiff or their property then it would be classified by mostcontracting States as a tort. 142 He classified the instant claim as a tort by reference- to thesystem and objectives of the Convention.143 In order to do this he articulated theseobjectives and then examined the practical consequences which would flow from theclassification of the action as contract or tort. These consequences were then assessed interms of whether or not they achieved the objectives which he had extracted from theConvention. l44 After his analysis he stated that while liability in tort has traditionallyrequired fault,145 developments in the law of tort such as the Product Liability Directivehave introduced strict liability into tort. He continued

the Product Liability Directive in effect requires the laws of the Member States to treat actionsfalling within its scope as in substance [tort], notably by precluding any contractual derogation:see Article 12 of the Directive. 146

In its judgment the European Court of Justice reiterated its own decision in Kalfelis vSchroder, Munchmeyer, Hengst & CO. 147 After considering the objectives and generalscheme of the Convention the Court stated that the phrase 'matters relating contract' inarticle 5(1) 'should not be understood to cover a situation where there is no obligation

136 See the Advocate General's opinion at 11.137 Cour de Cassation 1 ch civ, 8 Mar. 1988, D 1988. IR 87; Cour de Cassation, 1 ch civ, 21 June 1988,

D 1989.5.138 Article 5(3) of the Brussels Convention. Herein referred to as 'tort' alone for convenience.139 See the Advocate General's opinion at 10.140 Ibid at 10.141 Ibid at 13-14.142 Ibid at 18.143 Ibid at 15 and note Kalfelis v Schroder, Munchmeyer, Hengst & Co (Case C-189/87) [1988] ECR 5565.144 Ibid at 15-20.145 It appears that this assertion was incorrect however it does not affect the usefulness of his views for the purpose

of this article.146 Ibid at 19-20.147 Ibid at 21, ie the Convention must be interpreted having regard primarily to the objectives and general scheme

of the Convention and not merely by reference to the relevant national law:


freely entered into by one party to another' .148 The Court noted that a manufacturer hasno contractual relationship with the sub-buyer and in 'the overwhelming majority' ofcontracting States 'a manufacturer's liability to a sub-buyer for defects in the goods is notregarded as contractual'.149

The Athens Court of Appeal has recent!y stated that the producer's liability under theGreek law which implemented the Directive is lex specialis to tort liability provided byarticle 914 of the Greek Civil Code.150

Therefore, it appears that the European Court of Justice and the domestic courts in themember States would characterise a claim under legislation based on the Product LiabilityDirective as a tort for the purpose of jurisdiction under the Conventions. 151

However, it appears that there may be two objections that render the utility of thisconclusion questionable for the purposes of determining the characterisation of the CPAor the TPA for the purposes of the traditional service-out rules and the choice of law rules.(1) It appears that the Conventions require that a statutory action be either related to

'contract' or related to 'tort, delict or quasi-delict': a court cannot classify a statutorycause of action otherwise for the purpose of the Conventions.152 An English orAustralian court characterising a statutory cause of action for choice of law purposes,on the other hand, is not so bound - a statutory cause of action that would becharacterised as relating to tort for the purpose of the Conventions may be characterisedas restitutionary or sui generis for choice of law purposes. Accordingly, a determinationfor the purpose of the Conventions could never be conclusive of a characterisation forthe purpose of the English service-out rules or choice of law rules because of thenarrower range of characterisations possible. However, it may be that a court cancharacterise a statutory cause of action otherwise than relating to contract or tort forthe purpose of the Conventions. In Davenport v Corinthian Motor Policies at Lloyds153

the Court of Session decided that a particular statutory cause of action154 could not becharacterised as relating to tort or delict within article 5(3) because it was a matterrelating to a statutory right not to tort. 155 Their Lordships' reasoning appears to havebeen predicated upon the basis that article 5(3) is not 'an almost universal ground of

S jurisdiction, omitting only those matters [relating to contract]' .156 However, the Court'sdecision appears to be difficult to reconcile with the European Court of Justice'sdecision in Kalfelis v Schroder, Munchmeyer, Hengst & Co and the English Court of

148 Ibid at 22149 Ibid at 23150 Judgment No 442 of 1993 of the Athens Court of Appeal.151 Cf para 11 of the Explanatory Memorandum to the Proposal from the Commission (see above), J Kellam, 'Liability

of Manufacturers and Importers for Defective Products in Australia under Part VA of the Trade Practices Act'[1994] Consumer Law Journal 87 at 4; P Kaye, Private International Law of Tort and Product liability:Jurisdiction, Applicable Law and Extraterritorial Protective Measures, Dartmouth Publishing Co Ltd, Aldershot,1991, pp 17-18; and Fawcett (1993) at 63-4. It appears that the uncertainty expressed by Kohler and Tebbenson this issue in H D Tebbens, T Kennedy, & C Kohler (eds), Civil Jurisdiction and Judgments In Europe,Butterworths, London, 1992, [Tebbens et al (1992)] pp 52 and 89 respectively, can be reconciled with thisconclusion because it appears that they did not have access to either the Attorney General's opinion or the Court'sjudgment in Jakob Handte GmbH: see Tebbens et al (1992) p 52, n 16 and p 89 n 9 respectively.

152 Cf Kalfelis v Schroder, Munchmeyer, Hengst & Co (Case C-189/87) [1988] ECR 5565 (see above); KleinwortBenson Ltd v City of Glasgow District Council [1996] 2 All ER 257 per Roch and Millett LJJ (see esp MillettU at 276), Leggatt U dissenting (CA); Shearson Lehman Hutton Inc v 1VB Treuhandgesellschaft flirVermogensverwalterung und Beteiligungen mbH (Case C-89/91) [1993 I] ECR 139 per Advocate General Darmonat 178; A Briggs, 'Jurisdiction over restitutionary claims' [1992] Lloyd's Maritime and Commercial Law Quarterly283 at 285-7; and Tebbens et al (1992) per Schultz at 100-1, contrast per Poear at 111. See also for a discussionof this issue Kleinwort Benson Ltd v City of Glasgow District Council [1994] QB 404 (CA).

153 [1991] SLT 774.154 Section 151 Road Traffic Act 1988 (UK).155 [1991] SLT 774 at 778 per Lord McCluskey, 781 per Lord Prosser, and 782 per Lord Milligan. It appears trite

that the parties were correct to not attempt to contend that it was a matter related to contract within article 5(1).156 Ibid at 781 per Lord Prosser. Cf Barclays Bank Pic v City of Glasgow District Council [1993] QB 429 at 442.


Appeal's decision in Kleinwort Benson Ltd v City of Glasgow District Council. IS? Inmost European jurisdictions the distinction between statutory and common law causesof action does not exist as it does in the UK. Accordingly, a cause of action will notbe able to be dismissed as based upon and relating to a statute in any Europeanjurisdiction save the UK and the Irish Republic. The Court in Kalfelis v Schroder,Munchmeyer, Hengst & Co. stated that article 5(3) was to be interpreted by referenceto the system and objectives of the Convention and not simply as referring to thenational law of a member State, and the Court of Appeal in Kleinwort Benson Ltd vCity of Glasgow District Council,158 applying identical reasoning in respect of themodified Convention,159 decided that article 5(1) of the modified Conventionl60 is notconfined to contractual obligations and included a claim for restitution of money paidunder a void contract despite the fact that this could never be a matter relating to acontract under English law. Accordingly, it appears that the Court in Davenport vCorinthian Motor Policies at Lloyds, by failing to accept that a claim based upon astatute could be related to tort or delict for the purpose of the Convention, may havefailed to adopt the method of interpretation prescribed by the European Court ofJustice. 161 And,

(2) This conclusion relates to the characterisation which the courts would give such aclaim for the purpose of jurisdiction under the Convention. In characterising the causeof action created by the CPA for the purposes of choice of law, it may be that Englishcourts are not bound to follow a determination of the European Court of Justice withrespect to the Conventions albeit that the underlying statute was enacted in compliancewith an EC Directive. 162 However, the statements made by the German Governmentand the Advocate General in Jakob Handte GmbH v Traitements Mecano-chirniquesdes Surfaces were not limited in their compass to the issue of jurisdiction and thereforemay be of some persuasive value with respect to choice of law rules. 163

v. Section 6(7) CPA's application to the issues of jurisdiction and choiceof law

Section 6(7) of the CPA provides that

It is hereby declared that liability by virtue of [Part I] is to be treated as liability in tort for thepurposes of any enactment conferring jurisdiction on any court with respect to any matter.

157 [1996] 2 All ER 257 per Roch and Millett UJ. (See esp Millett U at 276), Leggatt U dissenting.158 [1996] 2 All ER 257 per Roch and Millett UJ, Leggatt U dissenting.159 The relevant provisions of the Conventions and the modified Convention (as enacted by the Civil Jurisdiction

and Judgments Act 1982 (UK», are identical.160 Which is identical to article 5( I) of the Conventions.161 Cf Molnlycke AB v Procter & Gamble Ltd [1992] RPC 21 at 28; and Peel in F Rose, (ed) Restitution and the

Conflict of Laws, Mansfield Press, Oxford, 1995, pp 20-2. Note the short-shrift given to Davenport, a case whichwould appear to have been directly on point, in Kleinwort Benson Ltd v City of Glasgow District Council [1994]QB 404 (CA).

162 Cf Kleinwort Benson Ltd v City of Glasgow District Council (C-346/93) [1996] QB 57 (ECJ) Contrast Fawcett(1993) at 128. However, it may be that such a characterisation may be binding, or at least highly persuasive, forthe purpose of 0 11 r 1(1)(0 (in a number of decisions in which the courts have been required to interpret 0 11judges have given some consideration to the European regime and expressed a desire to interpret 0 11 inaccordance with the Brussels Convention: Siskina (Cargo Owners) v Distos SA [1979] AC 210 at 233-4 perDenning MR (CA), 258-9 per Lord Diplock and 262-3 per Lord Hailsham of Marylebone (HL); and JamesNorth Ltd v North Cape Textiles Ltd [1984] 1 WLR 1428 at 1434 (CA). Cf Metall and RohstoffAG v DonaldsonLufkin and Jenrette Inc [1990] 1 QB 391 at 437, Kleinwort Benson Ltd v City ofGlasgow District Council [1996]2 All ER 257 at 262 per Leggatt U (dissenting but not on this point) and 272 per Millett U (cA), and Cheshireand North (1992), p 199). Nevertheless s 6(7) of the CPA would appear to make the characterisation of the causeof action created by the CPA as a tort irrefutable and binding upon English courts for the purpose of 0 11.

163 For example, the Advocate General expressly referred to developments in the law of torts generally and the lawof the contracting States generally. Cf Fawcett (1993) at 196-7.

The Characterisation of Product Liability Claims in Private International Law 23 1

Section 6(7) does not classify liability pursuant to Part I as a tort for all purposes, onlyfor the purposes of enactments conferring jurisdiction.164

Section 6(7) did not originally appear in the Consumer Protection Bill 1987. On8 December 1986 Lord Morton of Shuna, on the occasion of the second reading of theBill in the House of Lords, asked the government

If a person in Britain suffers damage due to a defective product which was first produced in orimported into another member state first [sic], can [that] person sue in Britain or [are they] requiredto go to [the other member state] in order to sue?165

His Lordship then referred to the Brussels Convention and asked whether liability underPart I is a 'tort, delict or quasi-delict' .166 He opined that until recently tort and delict inEnglish and Scottish law required 'fault wrongs, breaches of duty and the need to provea breach of duty'.167 He then contrasted the CPA, 'there is no duty laid on the producer. .. not to produce a defective product. There is only liability if he does so' .168 Heconcluded by suggesting that the modem approach is that tort and delict both encompassstrict liability however some judges may differ with him on his view of the law and sothe Bill ought, for the sake of clarity, to provide that 'liability under Part I is a tort, delictor quasi-delict' .169 Lord Morton reiterated his concerns and views on a subsequentoccasion.170

The amendment which inserted what now constitutes s 6(7) was moved on 9 March1987 by the Lord Advocate171 at which time he stated that there are certain differencesbetween the English law term 'tort' and the Scottish law term 'delict' .172 One differencewas that 'delict' focuses on the nature of the obligation to make reparation, whereas 'tort'is more concerned with the breach of duty involved. I73 Whilst he was confident thatliability under Part I would constitute a delict he stated that there was 'legitimate doubtwhether liability under Part I should be regarded as liability in tort' .174 He noted theexistence of actions for breach of statutory duty and stated that Part I is not expressed interms of a duty. He described this as the main cause of doubt. 175 He stated that s 6(7) willapply 'not only to the Civil Jurisdiction and Judgments Act 1982 but, for example, to theCounty Courts Act 1984'.176 He also stated that s 6(7) is 'declaratory. The intention is toensure that contrary arguments cannot be raised about other provisions for strict liabilityframed in a similar way. There are not many of those, but the Animals Act 1971 is anexample' .177 A number of amendments were made to ensure that Part I would be coveredby the Torts (Interference with Goods) Act 1977, the Crown Proceedings Act 1947, and

164 Cf Official Report House of Lords vol 485, col 1523, 19 March 1987 per Lord Morton of Shuna; P Kaye, PrivateInternational Law of Tort and Product liability: Jurisdiction, Applicable Law and Extraterritorial ProtectiveMeasures, Dartmouth Publishing Co Ltd, Aldershot, 1991, p 63, n 14; and R Merkin, A Guide To The ConsumerProtection Act 1987, Financial Training Publications, London, 1987, pp 7-8 and 50. Markesinis et al (1994) P563; and A Geddes, Product and Service Liability in the EEC, Sweet & Maxwell, London, 1992, pp 66-7 areincorrect when they state otherwise.

165 Official Report House of Lords vol 482, col 1043, 8 December 1986.166 Ibid.167 Contrast Fawcett (1993) at 197, n 448.168 Official Report House of Lords vol 482, col 1043, 8 December 1986.169 Ibid, col 1044.170 Ibid, col 787, 19 January 1987.171 Then Lord Cameron of Lochbroom.172 Official Report House of Lords vol 485, col 874-5, 9 March 1987.173 Ibid.174 Ibid, col 875, 9 March 1987. Fawcett (1993) at 197, n 448 stated that his Lordship misunderstood the nature of

the law of tort in making these statements on that subject.175 Ibid, col 874-5, 9 March 1987.176 Ibid, col 875, 9 March 1987.177 Ibid.


the Employment Act 1982 in light of the doubts his Lordship expressed about itsclassification as a tort. 178

In response Lord Morton suggested that inherent in the theory of delict is a wrongfulact and Part I, in contrast, is not dealing with a wrongful act at all.

There is no question of the defective product implying that the producer has committed a wrong.Because he has produced a defective product he has created a liability in himself but nobody issaying that he is wrong.179

Lord Denning spoke at this point and expressed his disagreement with the LordAdvocate's view on the nature of 'tort'.

Tort not only covers negligence, but covers many cases of strict liability - for example, theescaping of dangerous things even though there is no negligence at all. Such a case is treated inthe books and in every way as a liability in tort; that is the phraseology of tort. It is somethingfor which you are liable. 180

On 19 March 1987 Lord Lucas of Chilworthl81 reiterated the Government's position.He stated, inter alia, that Part I

does not expressly impose a legal duty on a producer or supplier not to produce or supply anydefective product. It simply imposes a liability for any damage caused by such a defective product.

Nevertheless, his Lordship stated, Part I could be considered delictual. I82

No further consideration was given to s 6(7) or the characterisation of Part I in eitherHouse and it was enacted in the form moved by the Lord Advocate on 9 March 1987.

As has been stated above, it appears that the Lord Advocate erred in assuming that inorder to be classified as a tort the CPA must fall within the compass of breach of statutoryduty.183 Whilst his Lordship was correct to note that to establish breach of statutory dutythe relevant statute must frrst impose a duty, 184 he failed to recognise that some statutescreate statutory causes of action which are characterised as a tort and are not breach ofstatutory duty. 185 Whilst in some cases actions under these statutes may be described asbeing for breach of statutory duty 186 this description is incorrect but innocuous so long asno consequences flow from the adoption of that nomenclature. I8? Section 41 of the CPAmakes express provision for actions for breach of statutory duty based upon anyRegulations enacted pursuant to Part IT of the CPA. It is only breach of one of these SafetyRegulations which gives rise to an action for breach of statutory duty under the CPA.188

178 Ibid, and see CPA s 9(2) and Schedule 4.179 Ibid, col 876-7, 9 March 1987.180 Ibid, col 877-8, 9 March 1987. Cf Fawcett (1993) at 197, n 448.181 The Parliamentary Under Secretary for the Department of Trade and Industry.182 Official Report House of Lords, vol 485, col 1522, 19 March 1987.183 Cf Street (1993) p 334, n 12 and Fawcett (1993) at 197, n 448.184 Scott v Green [1969] 1 All ER 849, Shelley v Cunane [1983] FSR 390 per Harman J; Garden Cottage Foods

Ltd v Milk Marketing Board [1984] AC 130 per Lord Diplock; P S James & D J L Brown, General Principlesof the Law of Torts, Butterworths, London, 1978, pliO; ; K M Stanton, Breach ofStatutory Duty in Tort, Sweet& Maxwell, London, 1986, p 4.

185 See Philip Morris Ltd v Ainley and Incorporated Nominal Defendant [1975] VR 345 at 348, Baldry v Jackson[1977] 1 NSWLR 494 at 498-9, Koop v Bebb (1951) 84 CLR 629 at 640--1, PSM Int PLC v Specialised FastenerProducts (Southern) Ltd [1993] FSR 113; N Isaacs, 'Quasi-Delict in Anglo-American Law' (1922) 31 Yale LawJournal 571 at 578; A V Dicey, A Digest of the law of England with reference to the Conflict of Laws, Stevens& Sons, London, 1896, pp 667-70; S M Waddams, Products Liability, (3rd ed), Carswell, Toronto, 1993, p 157;Stanton, (1986) 8; Fawcett (1993) at 27 and 196-7 however contrast the unsupported statements at pp 233-4;C G J Morse, 'Product Liability in the Conflict of Laws' (1989) 42 Current Law Problems 167 at 185.

186 Cf B A Hepple & M H Matthews, Torts: Cases and Materials, Butterworths, London, 1991 p 531; J Goldring,'Product Liability And The Conflict Of Laws In Australia' (1978) 6 Adelaide Law Review 413 at 423; andWaddams, op cit 120-1.

187 Stanton (1986) P 8.188 Street (1993) p 334, n 12, cf T Young, Product Liability Laws and Policies, ALRC Research Paper No 1,

Australian Law Reform Commission, Sydney, 1988, paras 225-9 and 334, and Markesinis et al (1994) P 537.


There appears to be no substance to the views expressed in the House of Lords duringthe debates on the CPA that the CPA189 is expressed in strict liability terms, not imposinga duty on a producer, and so the cause of action it creates may not be able to becharacterised as a tort. As Weir has stated 'in certain cases liability is so clear that webypass the notion of duty .. . we do not talk of a duty not to trespass, because it iselementary that trespassers are liable' .190 However, the editors of Clerk and Lindsell onTorts191 state that every tort is constituted by 'the breach of some duty laid down bylaw' .192 And they state that such a duty exists in cases of strict liability in tort, theformulation of which appears to be: a duty not to engage in certain conduct or cause orauthorise a certain event, which conduct or event causes damage. 193 It is no bar tocharacterising the causes of action created by the CPA and TPA as torts that, to paraphraseLord Lorebum LC,194 the only way a manufacturer can avoid liability is to abstain fromsupplying defective products.

The consideration of these parliamentary materials is inconclusive for our purposes.The Lord Advocate was unsure whether or not the cause of action created by the CPAcould be classified as a tort and, as suggested above, his reasoning for considering thatthere may be some doubt as to the classification of the cause of action created by CPAwas flawed. Section 6(7) certainly has application beyond the Civil Jurisdiction andJudgements Act 1982,195 but its usefulness in the classification of the cause of actioncreated by CPA is limited by consideration of the parliamentary materials. These materialsdemonstrate that s 6(7) cannot be regarded as a statement of parliamentary intention thatthe cause of action created by CPA is to be regarded as a tort for all purposes. Similarlythey negate any contention that the rule of statutory interpretation expressio unius estexclusio alterius can apply such that s 6(7)' s express reference to jurisdiction only, preventsthe characterisation of the cause of action created by the Act as a tort for any otherpurpose.196 Section 6(7), in this light, is of no assistance in deciding: which choice of lawrule, if any, to apply to the cause of action created by the CPA; what the territorial scopeof the CPA is; and, whether or not the CPA has any extraterritorial application.197 It appearstha;t the same reasoning applies to deny any significance to the fact that in both the CPAand the TPA, Parliament has included a deeming provision, in the case of the CPA deemingany damage to have been caused by the defendant's 'wrongful act, neglect or default' 198and in the case of the TPA deeming any defect to have been the defendant's 'wrongfulact, neglect or default',199 designed to ensure that the relevant Lord Campbell's Act typelegislation applies to the statutory cause of action there created.

The use of parliamentary materials in this way by a court will be governed by theprinciples elucidated in Pepper v Hart. 2OO In Pepper v Hart the House of Lords stated thatthe exclusionary rule which prevented reference to parliamentary material as an aid to

189 Which, if correct, would apply equally to the TPA.190 T Weir, Casebook on Tort, (7th ed), Sweet & Maxwell, London, 1988, p 10 and the first new paragraph, p 11;

and cf P A Landon, Pollock's Law of Torts, (15th ed), Stevens & Sons, London, 1951, describes strict liabilitytorts as 'Duties of Insuring Safety' at Chapter 12, and Fawcett (1993) at 197, n 448.

191 Clerk and Lindsell (1989).192 Ibid para 1-59.193 Ibid para 1-60.194 When discussing the strict liability tort of libel: E. Hulton & Co v Jones [1910] AC 20 at 24.195 Official Report House of Lords, vol 485, col 875, 9 March 1987.196 Contrast C G J Morse, 'Product Liability in the Conflict of Laws' (1989) 42 Current Law Problems 167 at

180--6; and R Merkin, A Guide To The Consumer Protection Act 1987, Financial Training Publications, London,1987, [Merkin (1987)] p 8, however cf p 50.

197 Cf Fawcett (1993) at 228, Merkin (1987) pp 8 and 50, and D Owles, The Unsafe Product - A Manager's guideto the Consumer Protection Act 1987, Korgan Page, London, 1988, pp 48-9 and 54-5.

198 Section 6(l)(a).199 Section 75AD(f)(ii).200 [1993] AC 593.


statutory construction should be relaxed where (a) the legislation was ambiguous or obscureor led to absurdity, (b) the material clearly discloses the mischief aimed at or the legislativeintention, and (c) the material relied upon consisted of statements by the Minister or otherpromoter of the Bill.

The initial hurdle to the use of these materials would be a contention that the processof characterising a statute does not involve the construction of it and so the relaxation ofthe exclusionary rule, as adopted in Pepper v Hart, has no application. Arguably in thisinstance it is s 6(7) which is being construed, albeit for, inter alia, the purpose of thecharacterisation of the Act. It is s 6(7) which attracts the operation of the rule in Pepperv Hart because s 6(7) is ambiguous or obscure in that it declares that the CPA is a tortfor one purpose when it is manifest that jurisdiction is only one of the two issues201 ofprivate international law which the Act must raise in its operation. By analogy with thecase in Pepper v Hart itself, s 6(7) may mean either that the CPA is a tort only for thepurpose of jurisdiction;202 or it may state no such thing and the CPA may203 be able tobe characterised as a tort for other purposes.204 Whether the limited declaration in s 6(7)should attract, for example, a rule of statutory interpretation such as expressio unius estexclusio alterius is left a matter for conjecture which can be resolved by resort to Hansard.The statements in the House of Lords which I have made reference to clearly disclose thelegislative intention behind the insertion of s 6(7).

Whilst Part VA of the TPA was based on the Product Liability Directive205 and isdescribed in its Explanatory Memorandum as the Australian equivalent of the CPA,206there is no equivalent provision to s 6(7) in the TPA. There are a number of possibleexplanations for this.

The Trade Practices Amendment Act 1992 provided for the allocation of jurisdictionin actions brought under Part VA to, inter alia, the Federal Court of Australia.207 TheFederal Court has long been able to deal with actions under the TPA under its Rules ofCourt.208 This combined with the fact that there was no need to ensure that the Act wouldbe covered by any convention or treaty similar to the Brussels Convention would, primafacie, mean that any provision corresponding to s 6(7) would be otiose. However, thisrequires that one accept that Parliament took no notice of the Australian Law ReformCommission's 'Report on Choice of Law', which anticipated that the courts would berequired to characterise a Commonwealth statute in cases that involved an internationalelement.209

More likely, or at least in practice, the TPA, being Commonwealth legislation, will notbe subject to interstate problems and Parliament did not give a great deal of considerationto the problems which may occur in litigation against a foreign party because, by s 75AB,Parliament had attempted to ensure that an Australian resident210 would be available as analternative defendant in these cases.

201 The other being choice of law or, in the case of a statute, territoriality/extraterritoriality.202 By application of the rule of statutory interpretation expressio unius est exclusio alterius.203 Depending upon the common law rules of characterisation.204 See Pepper v Han [1993] AC 593 at 640-1.205 Trade Practices Amendment Bill 1992 Explanatory Memorandum para 1.206 Ibid para 30.207 Section 75AS.208 See RFC 08 and Australian Law Refonn Commission, Product Liability, Report No 51, AGPS, Canberra, 1989,

[Australian Law Reform Commission (1989)] p 125. Contrast the uncertain position when a plaintiff attempts toissue proceedings in a State court under the Trade Practices Act 1974: Australian Law Reform Commission (1989)p 125; Bannenon Holdings Pty Ltd v Sydbank Soenderjylland AlS (unreported, Federal court, FED No. 955/91,20.12.93) at para 9.

209 Australian Law Refonn Commission, Choice of Law, Report No 58, AGPS, Canberra, 1992, Ch 5 and pp 63-6.210 Ie the Australian importer.


VI. The characterisation of the CPA and TPA

We now tum to the approach which was distilled above from the reported decisions, thatis, the identification of an established legal category, if any, which is analogous to thestatutory right. In this process of characterisation the characterisation of similar rights bycourts from jurisdictions with a similar jurisprudence has been given some weight.

(a) Material specifically considering the characterisation of product liability actions(i) Product liability actions generally

Tebbens211 in a comparative work which does deal with both substantive product liabilitylaw and private international law in many jurisdictions both civil law and common law,212specifically addressed the characterisation of product liability in these jurisdictions. Whendealing with the characterisation of product liability for domestic purposes he opined that'[product liability213] has borrowed elements from contract - warranty - and from tort-safety - and has evolved into a distinct type of liability sui generis which cuts across

the traditional categories'.214However, he concluded that

Nevertheless, for practical purposes the affinity to other modem instances of accident liabilitycannot be ignored, nor the fact that problems of product liability arise mainly between personsnot in privity of contract. It is one thing to state that product liability does not fit into the traditionalconcept of liability for individual wrongful conduct, but another that the law of tort serves atpresent as risk allocating vehicle in coping with systematic conduct through modem technologyinvolving risk of injury or damage to an indefinite number of others.... In all other hypothesesthe tortious nature of [product liability] - sanctioning a duty owed independently from theexistence of a contract - is by now acknowledged in judicial and academic discussions. Therelationship can perhaps be simplified thus: product liability is always a specific form of tort;215

Subsequently Tebbens discussed the examination of the concept of tort and thedelimitation of the law of tort in comparative law and more particularly in the InternationalEncyclopaedia of Comparative Law216 by the French jurist Tunc.217 Tebbens stated that:

-there is a central concept of tort in comparative law, albeit that a sharp definition is very difficultto find.... Nevertheless [Tunc] finds as a distinctive feature of tort liability that it sanctions theduty of every citizen to behave in a social manner. This general view certainly encompasses theconcept of product liability in contemporary industrialized societies and accords with theconclusions reached above as to the nature of product liability.218

Tebbens finally concludes that strict product liability should be characterised as a tortfor private international law purposes.219

Strict product liability is no less capable of being characterised as a tort because it isexpressed in strict liability terms, imposing no express duty on producers.220 However, anumber of American decisions have stated that strict products liability in tort does include

211 H D Tebbens, International Product liability: A Study ofComparative and International Legal Aspects ofProductLiability, Sijthoff & Noordhoff, Alphen Aan Den Rijn, 1980.

212 Germany, France, the Netherlands, the USA, England and Canada.213 Tebbens defines product liability as 'the liability of a professional supplier of a product for damage caused by

that product': p 4.214 Ibid, P 117.215 Ibid, p 118, and see p 171 esp n 4.216 Vol. XI (Torts) Ch. 1, esp pp 20-54.217 Ibid, P 171.218 Ibid.219 Ibid, P 237. Cf The Law Commission and the Scottish Law Commission, Private International Law: Choice of

Law in Tort and Delict, Report No 193 (LC) and 129 (SLC), HMSO, London, 1990, p 17; and The LawCommission and the Scottish Law Commission, Private International Law: Choice of Law in Tort and Delict,Working Paper No 87 (LC) and Consultative Memorandum No 62 (SLC), HMSO, London, 1984, pp 169ff.Contrast Kuhne (1972) p 11 esp n 67, however contrast the author's own views expressed at p 20.

220 Op cit, n 191


an element of fault. 221 Similarly, one English commentator has stated that whatever thecharacterisation of the cause of action created by the CPA 'liability [under the CPA] doesdepend on fault, but it is fault in the product and not in the behaviour of themanufacturer' .222 Whilst these efforts to demonstrate that strict product liability actions docontain an element of fault might be thought to lend further support to the characterisationof the CPA or TPA as a tort, the notion of fault adopted by them is spurious in that itdoes not reflect either negligence, intention (including recklessness), or malice, and so isnot fault in any sense recognised at law.223

In a case in which we are attempting to characterise for private international lawpurposes it is significant that in the case of at least one strict liability tort224 the tort choiceof law rule has been applied to the action in a number of reported decisions both in Englandand Australia.225 In any case, it may be that 'tort' in private international law has a widermeaning than it has in case of domestic substantive law.226 Moreover, when the FirstRestatement Conflict of Laws (1934) held sway in the USA and characterisation wastherefore uniformly relevant to choice of law in the USA,227 the tort choice of law rulewas applied to a case of strict liability for an animal under a statute.228

(ii) The Directive and the CPAWhilst the CPA was born out of the Product Liability Directive,229 it is perhapsinstructive230 to note that both the Pearson Report231 and the Law Commission's Reporton Liability for Defective Products232 recommended the creation by statute233 of a newobligation of strict liability in tort or delict in respect of injuries caused by defective

221 In Barrett v Superior Court 272 Cal Rptr 304 (Cal App 4 Dist 1990), review denied, 1990 Cal. LEXIS 4922(1990). Cf: Phipps v General Motors Corp 278 Md 337, 363 A 2d 955, 962 (1976) (Court of Appeals Maryland);Thomas v Gillette Co, 230 So 2d 870 at 874 (La Ct App), writ refused, 255 La 809, 233 So 2d 249 (1970);Atkins v American Motors Corp 335 So 2d 134 (Ala 1976); contrast Cornette v Sarjeant Metal Products Inc 147Ind App 46 at 52, 258 NE 2d 652 at 656 (1970).

222 D Owles, The Unsafe Product - A Manager's guide to the Consumer Protection Act 1987, Korgan Page, London,1988, p 49; cf J G Heming, The Law of Torts, (8th ed) Law Book Co, Sydney, 1992, p 328 esp nn 8 and 9.

223 Cf Markesinis et al (1994) pp 17-18, and Clerk and Lindsell (1989) paras 1-60 and 1-61.224 Ie vicarious liability.225 The Halley (1868) LR 2 PC 193, The Mary Moxham (1876) 2 PD 107, Joss v Snowball [1970] 1 NSWR 426 at

430. See further Dicey and Morris (1993) p 1523 and M C Pryles, 'Tort and Related Obligations in PrivateInternational Law' [1991] IT Recueil des Cours 9 at 148. It appears that in Germany, for example, strict liabilitytorts exist as a special class of tort and nonnal tort choice of law principles are applied to them Kuhne (1972)p 10.

226 Borg Wagner (Australia) Ltd v Zupan [1982] VR 437 at 453-4 per Marks J; Dicey and Morris (1993) rule 202;Cheshire and North (1992) pp 45-6; K Lipstein, 'General Principles of Private international Law' [1972] I 135Recueil des Cours 99 at 196 n 9; A H Robertson, Characterization in the Conflict of lLlws, Harvard UniversityPress, Cambridge, 1940, pp 81-91, 177-8 and 222-3 and see the many views there cited; de Boer (1987)pp 95-97; and W E Beckett, 'The Question of Classification ("Qualification") in Private International Law'(1934) 15 British Yearbook of IntemationallLlw 46. Cf Anderson v Eric Anderson Radio & IT Pty Ltd (1965)114 CLR 20 at 29 per Kitto J.

227 See for example Beale (1935) pp 1289-90. .228 Fischl v Chubb, 30 Pa D & C 40 (CP 1937), and cf Le Forest v Tolman 117 Mass 109 (1875), both noted in

(1938) 51 Harvard lLlw Review 738-9.229 The Council Directive of 25 July 1985 on the approximation of the Laws, Regulations and Administrative

provisions of the member States concerning Liability for Defective Products 85/3741EEC, OJ No 210, 7.8.85,P 29 [the Directive].

230 Cf the reference to these two Reports in the Second Reading Speeches for the CPA in both Houses of Parliament:Official Report House of Lords, vol 482, col 1002-3, 8 December 1986 per the Lord Advocate, and OfficialReport House of Commons, vol 115, col 52, 27 April 1987 per the Parliamentary Under-Secretary of State forTrade and Industry.

231 Royal Commission on Civil Liability and Compensation for Personal Injury, Final Report, HMSO, Londont 1978,para 1236.

232 The Law Commission and the Scottish Law Commission, Liability for Defective Products, Report No 58 (LC)and 45 (SLC), Cmnd 6831, HMSO, London, 1977, at 10, 11-15 and 37-9.

233 Whilst neither Report expressly referred to the creation by statute of the cause of action which it recommendedbe created t this appears to be implicit in their recommendations and the nature of the body preparing the Report.


products, rather than alter the rules of contract. The Law Commission's report states '[i]fadditional rights and remedies are to be provided they should lie in tort or delict' .234

All jurists have dealt with the CPA and the Directive under the heading tort along withother strict liability actions or they have regarded it as creating a new strict liability tort.235Moreover, much of the academic discussion of the development risks defence236 has opinedthat the effect of the inclusion of the defence in the Act in that form will be that in somecases237 liability under the CPA will be akin to fault based liability under the tort ofnegligence, the only practical difference being a reversal of the onus of proof.238

Morse has specifically addressed the territorial application and characterisation forprivate international law purposes, of the cause of action created by the CPA.239 He notedthat s 6(7) provides only for the issue of jurisdiction and applying, in terms, the expressiounius est exclusio alterius rule of statutory construction, he stated that it could be arguedthat liability is not to be treated as one in tort but rather as liability sui generis. On hisview a choice of law rule specifically tailored for the cause of action created by the CPAwould have to be developed by the courts and Morse suggested that it should be determinedby construing the CPA in light of its nature, purpose and source - an EEC Directive.240

Morse noted that his suggestion that the cause of action created by the CPA might becharacterised as sui generis was prompted by the consideration that the traditional Englishchoice of law rule in tort is 'inappropriate' .241 Morse concluded by conceding that'nevertheless there remains a distinct possibility, perhaps a probability, that the liabilitywill be classified as tortious for choice of law purposes' .242 In this context he noted, quotingLord Denning in the debate in the House of Lords on the Consumer Protection Act 1987,that tort includes many cases of strict liability.243

Kaye244 has stated that '[i]t is submitted that ... liability [under Part I of the CPA] isplainly to be treated as being tortious [sic] by nature - or at least, even if sui generis, asequivalent to tort for choice of law - if only to prevent conflicting findings as to existenceor not of liability under the 1987 Act and applicable laws on tort respectively'.

Fawcett too has specifically addressed the territorial application and characterisation forprivate international law purposes of a European Community State's statute implementingthe' Directive. He concluded that 'tort choice of law rules should be applied'245 to these

234 Ibid para 33.235 0 Howarth, Textbook on Tort, Butterworths, London, 1995, pp 405ff.; P Kaye, Private InternationallLlw of Tort

and Product Liability: Jurisdiction, Applicable lLlw and Extraterritorial Protective Measures, DartmouthPublishing Co Ltd, Aldershot, 1991, [Kaye (1991)], p 55; D Owles, The Unsafe Product - A Manager's guideto the Consumer Protection Act 1987, Korgan Page, London, 1988, pp 54-5; W C Hoffman & S Hill-Aming,Guide to product Liability in Europe, Kluwer Law and Taxation Publishers, Deventer, 1994, pp 36 and 42; J GFleming, The lLlw of Torts, (8th ed) Law Book Co, Sydney, 1992, pp 496-502 (see esp third new paragraphp 497); Street (1993) p 334. C Newdick, 'The Future of Negligence in Product Liability' (1987) 103lLlw QuarterlyReview 288 at 288; Fawcett (1993) at 27 and 196-7; C G J Morse, 'Product Liability in the Conflict of Laws'(1989) 42 Current lLlw Problems 167 at 185; S M Waddams, Products Liability, (3rd ed), Carswell, Toronto,1993, p 157.

236 Section 4(1)(e) of the CPA.237 Principally cases of design defects.238 Markesinis et al (1994) pp 162 and 537; R Nelson-Jones, and P Stewart, Product Liability: The new law under

the Consumer Protection Act 1987, Fourmat Publishing, London, 1988, pp 67-8; Stoppa (1992) p 218 and thenumerous other commentators cited at p 220 n 48; C J Miller, Product liability and Safety Encyclopaedia, (looseleaf service), Butterworths, London, 1979, para [122]; C Newdick, 'The Future of Negligence in Product Liability'(1987) 103 lLlw Quarterly Review 288; J G Fleming, The lLlw of Torts, (8th ed) Law Book Co, Sydney, 1992,p 499; and C Hodges (ed), Product Liability; European lLlws and Practice, Sweet & Maxwell, London, 1993,p 7, n 17.

239 C G J Morse, 'Product Liability in the Conflict of Laws' (1989) 42 Current lLlw Problems 167 at 180-6.240 Ibid at 185.241 Ibid.242 Ibid.243 Cf Official Report House of Lords, vol 485, col 877-8,9 March 1987 per Lord Denning.244 Kaye (1991) p 63, n 14.245 Fawcett (1993) at 196, cf p 27.


statutes because: the Explanatory Memorandum to the Proposal from the Commission246

indicates that the Directive introduces a liability in tort;247 the view expressed in theExplanatory Memorandum was shared in the debates in the House of Lords on theConsumer Protection Bill 1987;248 this view was also 'confmned' by the Advocate Generalto the European Court of Justice in Jakob Handte GmbH v Traitements Mecano-chimiquesdes Surfaces249; and, 'tort jurisdiction rules apply in cases involving liability under aproduct liability statute implementing the Directive. When it comes to choice of law itwould be inconsistent and confusing to apply other than tort choice of law rules' .250 EarlierFawcett had stated that if a case based upon the Product Liability Directive raised a privateinternational law problem in the United Kingdom 'doubtless resort will be made to moregeneral rules dealing with tort choice of law'251 because English courts have not developeda choice of law rule which deals specifically with non-contractual product liability. Hesubsequently noted that in many cases relief would be sought both under the law of tort!delict and under the Directive and 'it would be very inconvenient to have different choiceof law rules for the two different actions'.252 However, Fawcett stated, immediately afterreaching the above conclusion, that '[t]he only real doubt emerges if liability under theDirective is regarded, not as being tortious, but as being a liability which is sui generis' .253This statement was not supported by any explanation and it appears to be somewhatincongruous in light of his earlier reasoned conclusion. Subsequently Fawcett opined thatit is 'possible' that liability under the Directive will be characterised for privateinternational law purposes as sui generis.254 Again, no explanation is proffered for thisstatement and no attempt is made to reconcile it with his earlier reasoned conclusion.

(iii) TPA

In its Discussion Paper on 'Product Liability' the Australian Law Reform Commissionappears to have posited that the statutory cause of action which it recommended be createdby an amendment to the TPA could only have been characterised, from amongst thetraditional juridical categories, as a tort for private international law purposes.255 Howeverthe Commission appears to have believed that the cause of action would be a new actionneither a tort nor a contract, in terms sui generis.256

Goldring appears to hold the view that Part VA creates a 'statutory tort' .257 Other juristshave also likened the TPA to a tort action.258 However, one has noted the possibility that'the courts [may] interpret its provisions as creating a statutory liability sui generis' .259

During the TPA's second reading speech the Government sent a reference to the Senate

246 Fawcett was here referring to COM(76)372 final, see above, the document which was before the BritishParliament.

247 Fawcett (1993) at 196.248 Ibid. However, the two passages Fawcett refers to in the debates in support of his assertion (Official Report House. of Lords, vol 485, cols 875-6 and 1522, 9 March 1987), do not support any such assertion.249 (Case C-26/91)[l993] IL Pr 5.250 Fawcett (1993) at 196-7.251 Ibid, P 27.252 Ibid, P 128.253 Ibid, P 197.254 Ibid, P 234.255 Australian Law Reform Commission, Product Liability, Discussion Paper No 34, AGPS, Sydney, 1988, p 68,

n 7; and cf J Goldring, & T Young, Product Liability: Remedies and Enforcement, ALRC Research Paper No 5,Australian Law Reform Commission, Sydney, 1989, p 118.

256 Australian Law Reform Commission, Product liability, Discussion Paper No 34, AGPS, Sydney, 1988, p 24.257 J Goldring, 'Making Corporate Officials Personally Liable For Statutory Torts' (1994) 4 Australian Journal of

Corporate Law at 376 in the title.258 J Kellam, 'Liability of Manufacturers and Importers for Defective Products in Australia under Part VA of the

Trade Practices Act' [1994] Consumer Law Journal 87 at 93; and F C P Trindade, The Law ofTorts in Australia,(2nd ed), Oxford University Press, Melbourne, 1993, p 239.

259 Kellam op cit at 95.


Standing Committee on Legal and Constitutional Affairs in terms that included whetherthe Trade Practices Act 1974 should be amended to give Part VA of the Act the sameextraterritorial application as is currently given to Parts IV and V of the Act.260 TheCommittee's Report was published in December 1992 and tabled in the Senate on 4 May1993. In the Committee's Report it noted that the Australian Product Liability Associationargued both in its written submissions and in the evidence of Professor Pryles on behalfof the Association, that Part VA is~ a tort law and the choice of law rule in tort shouldtherefore be applied to it to determine its territorial scope.261 The Committee did not feelable to decide between the competing arguments on the question whether Part VA wouldoperate extraterritorially in the absence of an express provision, of which the AustralianProduct Liability Association's argument was merely one of three, because 'as yet therehave been no reported cases on [Part VA]' .262 The Australian Product LiabilityAssociation's view was supported by the evidence of a litigation partner in a large Sydneyfirm who specialised in product liability litigation,263 and in another part of its Report theCommittee appear to have agreed that Part VA can be characterised as creating a causeof action in tort for the purpose of the service out of the jurisdiction rules.264 It appearsthat other Australian jurists and practitioners hold the same views as Pryles on the presentissue.265

In its 'Response' to the Senate Standing Committee on Legal and Constitutional Affair'sReport on a number of aspects of Part VA of the TPA266 the Australian Government notedthat,

Professor Pryles of the Australian Product Liability Association has expressed the view that theregime established by Part VA will be classified by the courts as a tort regime and the usualconflict of laws principles will apply when an overseas consumer seeks to bring an action againstan Australian manufacturer in an Australian Court.267

In its conclusion the Government stated that

the Government accepts the Committee's recommendation that the question of whether anoverseas consumer can bring an action in an Australian Court be left to conflict of law rules asapplied by the courtS.268

Therefore the Australian Government clearly endorses the characterisation of the TPAand the application thereto of the traditional private international law rules in the case ofa foreign plaintiff attempting to sue an Australian defendant in the Australian courts. Italso appears to have tacitly approved Pryles's characterisation of the TPA as creating acause of action in tort. If this process is to be applied to the TPA in these cases then,arguably, it must be applied equally in cases in which an Australian plaintiff is pursuinga foreign defendant. However, the views of the Australian Government were expressed

260 Senate Standing Committee on Constitutional and Legal Affairs, Product Liability - Where Should the LossFall? Senate Standing Committee on Constitutional and Legal Affairs, Canberra, 1992, [Senate StandingCommittee on Legal and Constitutional Affairs (1992)] pix; and Au~tralian Government, Government Responseto the Report of the Senate Standing Committee on Legal and Constitutional Affairs Product Liability - WhereShould The Loss Fall, AGPS, Canberra, 1994, p 1.

261 Senate Standing Committee on Legal' and Constitutional Affairs (1992) p 79 and per Pryles in evidence atpp 250-1, 257-8 and 260.

262 Senate Standing Committee on Legal and Constitutional Affairs (1992) p 30.263 Mr Colin Bruce Loveday, a partner at Clayton Utz, Solicitors and Attorneys, Sydney, in evidence before the

Senate Standing Committee on Legal and Constitutional Affairs: Evidence, p 273.264 Senate Standing Committee on Legal and Constitutional Affairs (1992) p 29, para 5.9.265 Senate Standing Committee on Legal and Constitutional Affairs (1992) in evidence per Loveday at p 273 and

Jennings at p 252; and A I Tonking, R J Alcock & L M Castle (eds), Australian Trade Practices Reporter, (looseleaf service ), CCH Australia, Sydney, 1991, para [24-140].

266 Senate Standing Committee on Legal and Constitutional Affairs (1992).267 Australian Government, Government Response to the Report of the Senate Standing Committee on Legal and

Constitutional Affairs Product Liability - Where Should The Loss Fall, AGPS, Canberra, 1994, p 2.268 Ibid, p 3.


after the Act was promulgated and therefore cannot be taken to be conclusive of theParliament's intention in the interpretation of the Act as enacted.269

(b) The use of European Community material in the characterisation of the CPASection 1(1) of the CPA provides that

Part [I] shall have effect for the purpose of making such provision as is necessary in order tocomply with the product liability Directive and shall be construed accordingly.

The English courts have outlined the general approach to be applied in the interpretationof UK legislation enacted for the purpose of complying with European CommunityDirectives.27o In Litster v Forth Dry Dock & Engineering Co Ltd271 the House of Lordswas required to interpret an English Regulation which was expressly enacted for thepurpose of complying with a European Council Directive. On a strict and literal readingof the words of the Regulation they were inapplicable to the case. Lord Templeman quotedwith approval from a decision of the European Court of Justice

in applying ... the provisions of national law specifically introduced to implement Directive[76/207/E.E.C.], national courts are required to interpret their national law in the light of thewording and the purpose of the Directive in order to achieve the result referred to in Article189.272

His Lordship continued:

the courts of the United Kingdom are under a duty to follow the practice of the European Courtof Justice by giving a purposive construction to Directives and to Regulations issued for thepurpose of complying with Directives.273

He then referred to the Directive and a decision of the European Court of Justice toassist him in interpreting the Regulation.274 His Lordship's approach was representative ofthat of the Court and Lords Keith of Kinkel and Brandon of Oakbrook expressly agreedwith him.275

269 See ss 15AB(1) and (2)(b), (c) and (e) of the Acts Interpretation Act 1901 (Cth), and Federal Commissioner ofTaxation v Bill Wissler (Agencies) Pty Ltd (1985) 16 ATR 952 at 957. Contrast J Kellam, 'Liability ofManufacturers and Importers for Defective Products in Australia under Part VA of the Trade Practices Act' [1994]Consumer Law Journal 87 at 88 where the author does not appear to have applied s 15AB(2) correctly or,perhaps, did not chronologize the relevant dates correctly.

270 For a discussion of the possible approach of the English courts to the European Community element in relationto an aspect of the CPA which is not directly relevant to this article (deviations in the CPA from the Directive),see Fawcett (1993) at 53-5.

271 [1990] 1 AC 546.272 At 580 quoting from von Colson and Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891 at

1909. Cf Fawcett (1993) at 53-54 discussing the Directive. Article 189 of the Treaty Establishing the EuropeanCommunity provides, inter alia, that 'A directive shall be binding, as to the result to be achieved, upon eachMember State'.

273 Ibid.274 Ibid.275 Cf von Colson and Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891, Webb v EMO Air

Cargo (UK) Ltd [1992] 4 All ER 929 (HL), Pickstone v Freemans Pic [1989] AC 66, Duke v GEC RelianceSystems Ltd [1988] AC 618, Garland v BR Engineering [1983] 2 AC 751 and H P Bulmer Ltd v J. BollingerSA [1974] Ch 401 (CA) in which Lord Denning MR stated at 425-6: 'Beyond doubt the English Courts mustfollow the same principles as the European court No longer must they argue about the precise grammaticalsense. They must look to the purpose or intent They must devine the spirit of the Treaty and gain inspirationfrom it ... They must do what the framers of the instrument would have done if they had thought about it'. Seealso L Collins, European Community Law in the United Kingdom, (4th ed), Butterworths, I:A>ndon, 1990, pp 1378; and X Lewis, 'The EC Product Liability Directive: An EC wide conspectus' (1994) 2European Review ofPrivate Law 183 at 191-2. It appears that Lord Denning MR's observations apply equally to the interpretationof English legislation which is complying with a European Community Directive, because the European Courtwould apply the same principles to a Directive as it would to a treaty; cf Litster v Forth Dty Dock Co Ltd [1990]1 AC 546 and Webb v EMO Air Cargo (UK) Ltd [1992] 4 All ER 929 (HL). Note howev~r that in Webb v EMOAir Cargo (UK) Ltd [1992] 4 All ER 929 at 940 the House of Lords stated that 'a national court must construea domestic law to accord with the terms of a directive in the same field only if it is possible to do so'. (Emphasisadded).


It therefore appears that, even without reference to s 1(1), and a fortiori in light ofs 1(1), the Product Liability Directive and the practice of the European Court of Justicein interpreting European Directives, are relevant in the interpretation of the Directive andthe CPA.

It is to the 'practice of the European Court of Justice' and its application to the ProductLiability Directive that we now tum.276

The European Court of Justice has used explanatory memoranda and other travauxpreparatoires in the interpretation of Community legislation.277 On occasion the Court'sAdvocates General have stated that the use of preparatory material in the interpretation ofCommunity legislation is of dubious value.278 However it appears that the Court as a wholedoes not hold this view and those same Advocates General have on other occasions madeuse of the same for just that purpose.279 It appears that the Court will make use ofpreparatory material in the interpretation of Community legislation in cases in which:28o

the materials have been published,281 and do not contain too many contradictory andambiguous elements to be of assistance.282 For example, in Rinkau283 the Court used areport prepared by the Commission responsible for drawing up the draft of the treaty whichpreceded the Brussels Convention284 and '[t]he report drawn up by the committee ofexperts ... which drafted the text of the Brussels Convention' .285 The views expressed inthe two reports were adopted without question.286

276 Cf s 3(1) European Communities Act 1972 (UK), L Collins, European Community law in the United Kingdom,(4th 00), Butterworths, London, 1990, pp 137-8, and A E Anton, Private IntemationallAw, (2nd ed), W Green,Edinburgh, 1990, p 62.

277 See generally R Plender, 'The Interpretation of Community Acts by Reference to the Intentions of the Authors'(1982) 2 Yearbook of European lAw 57 [Plender (1982)] and esp at 92-101. However some authors have opinedthat they are 'hardly referred to by the European Court': T Rensen, 'British Statutory Interpretation in the Lightof Community and Other International Obligations' (1993) 14 Statute Law Review 186 at 186, cf S Weatherill& P Beaumont, EC Law, Penguin, London, 1993, pp 145-7; A Bredimas, Methods of Interpretation andCommunity lAw, North-Holland Publishing, Amsterdam, 1978, pp 54-65; and Marsh (1973) generally.

278 See Officier van Justitie v Haaster (Case C-190n3) [1974] ECR 1123 at 1142 per Advocate General Mayras,National Panasonic (UK) Ltd v Commission (Case C-136179) [1980] ECR 2033 at 2066-7 per Advocate GeneralWarner, and see further Plender (1982) at 93-4.

279 Derycke (Case 65n6) [1977] ECR 29 at 38 per Advocate General Mayras, Netherlands v High Authority (CaseC-6/54) [1954-56] ECR 103 per Advocate General Roemer, Humblet (Case C-6/60) [1960] ECR 559, ImportGadgets (Case C-22176) [1976] ECR 1371, see further the cases cited by Plender (1982) at 94-7.

280 See generally Plender (1982) at 93-7 and L Collins, European Community lAw in the United Kingdom, (4th ed),Butterworths, London, 1990, p 137. This position parallels that of the English courts in the interpretation ofEnglish legislation which implements an international convention: Gatoil International Inc v Arkwright-BostonManufacturers Mutual Insurance Co [1985] SLT 68 (HL) at 70 per Lord Wilberforce and cf69 per Lord Scarman,and see Collins, op cit, p 137.

281 The minutes of the Council of Ministers, for example, are not published and so cannot be used: Meroni v HighAuthority (Case C-9/56) [1957-8] ECR 133 at 146, Meroni v High Authority (Case C-I0/56) [1957-8] ECR 157at 168, and Denkavit v Finanzant Warendorf(Case C-139/77) [1978] ECR 1317 at 1339.

282 Germany v Commission (Case C-18n6) [1979] ECR 343 at 383, Mrs P v Commission (Case C-40n9) [1981]ECR 361 at 372-3.

283 (Case C-157/80) [1981] II ECR 1391 at 1399, 1407-8, and 1410. Cf Ivenel v Schwab (Case C-133/81) [1982]II ECR 1891. No legislative imprimatur for referring to these preparatory documents, such as s 3(3) of the CivilJurisdiction and Judgments Act 1982 (as amended) (UK), exists in either the Benelux Treaty or the BrusselsConvention.

284 The Benelux Treaty.285 At 1399. See also the opinion of Mr Advocate General Reischel at 1407-8 and 1409-10.286 At 1399-1400. See also the opinion of Mr Advocate General Reischel at 1411.


In the case of the Product Liability Directive at least three items of preparatory materialswere published by the European Community.287

The Explanatory Memorandum in the Draft of the EEC Directive states, under theheading 'Basic principles underlying the substantive rules - Nature of Liability', that

[l]iability ought . . . to be founded on the obligation to take responsibility for the risk to whichevery user is exposed and which is inherent in any article because of its possible defectiveness... liability ought no longer to be regarded as having any connection with contracts of sale thathave been concluded. . . . In founding liability, therefore, one should take as a basis the occurrenceof damage and not the contractual relations between parties involved.288

And later 'liability is founded not on a contractual basis' .289 The explanatory note toarticle 1 in the Draft states that the producer's liability is in tort.290 Article 1 as it thenexisted was, in terms, or at least for our purposes, identical to article 1 in the CouncilDirective. -

The Explanatory Memorandum to the Proposal from the Commission291 whendiscussing article 13292 under the heading 'Relationship to claims based on other grounds', _states that 'the right to damages based in the laws of the Member States on [the] directive'ranks as a claim in tort which is not based in the fault of the producer.293 Again, article13 as it then existed was, in terms, or at least for our purposes, identical to article 13 inthe Council Directive.

The Amendment of the Proposal from the Commission'in its 'Commentary on articles'notes only amendments to the text following requests formulated in the Opinion of theEconomic and Social Committee and the Opinion of the European Parliament.294 It appearsthat it was intended that, in so far as the text of the Proposal has not been amended, theExplanatory Memorandum in the Proposal was still to be used.295

Paragraph 17296 in the Preamble to the Council Directive states that liability under theDirective is non-contractua1.297

When the text of the Council Directive was formally adopted the reference which itmakes to the Proposal from the Commission298 is to a version which did not include anyExplanatory Memorandum and it makes no reference to the Draft of the Directive at all.However, these documents satisfy the requirements of the European Court of Justice forreference to them in aid of the interpretation of the Directive and no significance can be

287 Memorandum on the approximation of the laws of the Member States relating to Product liability (doc XIJ332174, August 1974) [The draft of the EEC Directive (1974)]. Proposal for a Council Directive relating to theApproximation of the Laws, Regulations and Administrative provisions of the member States concerning Liabilityfor Defective Products (Presented by the Commission to the Council on 9 September 1976), COM (76)372 final[it was this version which the British Parliament had before it], Bulletin of the European Communities Supplement1111976, and OJ No C 241, 14.10.1976, P 9 (this version did not have an accompanying explanatorymemorandum) [The Proposal from the Commission (1976)]. The Opinion of the Economic and Social CommitteeOJ No C 114, 7.5.1979, P 15; The Opinion of the Economic and Social Committee OJ No C 127 21.5.1979,P 61; Amendment of the Proposal for a Council Directive relating to the Approximation of the Laws, Regulationsand Administrative provisions of the member States concerning Liability for Defective Products (Presented bythe Commission to the Council on 1 October 1979), COM (79)415 final (it was this version which the BritishParliament had before it), OJ No C271, 26.10.1979, P 3 (this version did not have an accompanying explanatorymemorandum) [The amendment of the Proposal from the Commission (1979)].

288 Paragraph III l(a).289 Paragraph III 3 under the heading 'The person against whom the claim would be brought'.290 Explanatory note on article 1.291 COM(76)~72 final, the document which was before the British Parliament.292 Then article 11.293 Paragraph 30. Cf paragraph 11.294 See paragraph 1.295 Ibid.296 The 12th 'Whereas'.297 Preambles to Directives are used by the ECJ in the interpretation of Directives: Markus v Hauptzollamt Hamburg

Jonas (Case C-14/69) [1969] ECR 349, Brunner (Case C-9/72) [1972] ECR 961 and Plender (1982) at 100.298 Paragraph 2 of the preamble to the Directive.


attached to the failure to refer to one version over another or the reference to one versionof the Proposal over another.299

Section 1(1) of the CPA sanctions reference to the Directive in the interpretation of theCPA. In interpreting the Directive the European Court of Justice would have reference tothis preparatory material. In interpreting the CPA and, in aid of interpreting the CPA, theDirective, the English courts must adopt the practices and methods of the European Courtof Justice. Therefore reference to the preparatory material is also permissible in aid ofinterpreting the Directive and thereby the CPA, a fortiori because, as discussed furtherbelow, during the debates on the CPA in the House of Lords the Lord Advocate expresslycountenanced the use of the Explanatory Memorandum to the Proposal from theCommission in interpreting both the Directive and the CPA.

During the debates on the CPA in the House of Lords the Lord Advocate3OO referredto the Commission's Explanatory Memorandum301 in order to interpret both the Directiveand the Consumer Protection Bill 1987.302 He quoted from the Memorandum, summarisedits text and then stated

[t]hat is the point that the Commission makes in its memorandum. Accordingly the directive andthe first part of clause 5(2)303 does [sic] not cover [that which the memorandum stated that article6 of the Directive did not cover].304

When asked by Lord Morton of Shuna what the status of the Memorandum was if itcontradicted the Directive the Lord Advocate replied

I would simply say that the memorandum is not contradicting the directive. It makes clear theCommission's view, and it will be the Commission at the end of the day which will be ensuringthat the directive is implemented as to the effect of this article. Obviously all member countrieswill be taking that into account when they are drafting their legislation based upon this directive.That is the reason why I thought it was extremely pertinent to quote it in some length to theCommittee305 to make it clear why it is we have taken the view that we have done about theeffect of this article.306

On a subsequent occasion Lord Morton stated that

[t]here is a difficulty referring to the Explanatory Memorandum because it was delivered withthe draft directive on 9th September 1976. We are dealing with a directive which was passed bythe Community on July 1985 and which in many material respects is different.307

The Lord Advocate replied

This part of the directive [article 6 which s 5(2) eventually enacted] has not been affected in anysubstantial sense since [9 September 1976] and I suggest that the Commission's explanatorymemorandum is as helpful now as it was before in this matter.308

His Lordship then proceeded to again refer to the Explanatory Memorandum in aid ofinterpreting the Directive.

Therefore there are two published Commission preparatory documents which an Englishcourt would be able to utilise in 'the interpretation of the Directive and thereby the CPAthat indicate that liability under the Directive was intended to be a tort. A fortiori, the

299 Cf articles 190 and 191 of the Treaty establishing the European Community.300 The versions of the Proposal from the Commission and the Amendment of the Proposal from the Commission

which the British Parliament had before it were COM (79)415 final and COM (76)372 final, respectively.301 In the Proposal from the Commission, COM (76)372 final, as amended by The Amendment of the Proposal from

the Commission, COM (79)415 final.302 Official Report House of Lords, vol 483, col 879, 19 January 1987.303 Article 6 was enacted by s 5(2) of the CPA. <

304 Ibid.305 The House of Lords was then sitting as a Committee of the whole House.306 Ibid, col 880, 19 January 1987.307 Official Report House of Lords, vol 485, col 866-7, 9 March 1987.308 Ibid col 869, 9 March 1987.


House of Lords, and more particularly the relevant Minister, expressly used theExplanatory Memorandum to the Proposal from the Commission as an aid in theinterpretation of the Council Directive and the CPA itself.

These materials are not directly relevant to the TPA as they are to the CPA. However,it may be that they would be of some persuasive value to a court which is called upon tocharacterise the cause of action created by the TPA, particularly if they have already beenused by the English courts in order to characterise the cause of action created by the CPAas a tort.309

VII. Conclusion

On the strength of the statel1).ents in the European Community material alone it appearsthat the cause of action create9 by the CPA must be characterised as a tort for privateinternational law purposes. If this material is treated as authoritative by the English courtsthen no more need be said of its utility. However, in the event that the English courts donot find that it is authoritative, it is the present author's view that the course advocated inthis material - that legislation enacting the Directive be characterised as a tort - will betreated by the courts as of considerable, if not decisive, persuasive value. If this were notso then it could be the case that the English legal system would be the only one in theEU in which a claim arising under legislation enacting the Directive is not regarded as atort. However, an analysis and application of the reasoning in the reported decisions oncharacterisation for private international law purposes, the position in the USA, in themajority of European Community States and in the European Court of Justice, and theviews of jurists, make this characterisation all the more compelling.310 Except for the useof the European Community material, the same can be said for the TPA.

Whilst the characterisation of statutory causes of action for private international lawpurposes has received scant attention in legal literature there is some limited materialdealing generally with the process of characterisation which is of some assistance in thisregard and some jurists have attempted to characterise particular statutory causes of actionfor private international law purposes.

The editors of Dicey and Morris consider that the rationale of the choice of law rulethat is to be applied and the purpose of the rule of substantive law to be characterised, areof primary importance in all cases in which characterisation is being attempted, not merelythose cases in which the rule of substantive law is determined to be sui generis.311 It isbeyond the scope of this article to embark upon the tortuous path of the identification ofthe rationale of the choice of law rules and no attempt will be made to do that here.312 Atpresent it appears that the methodology advocated in Dicey and Morris has not receivedjudicial support and the traditional system of attempting to fit a cause of action into anestablished juridical category, or perhaps labelling it sui generis, and only then applyingthe rule of choice of law appropriate to that juridical category, hold sway.313 Whilst

309 Cf Trade Practices Amendment Bill 1992 Explanatory Memorandum paragraphs 1 and 30.310 Op cit n 235.311 Dicey and Morris (1993), First Supplement (1994) and Second Cumulative Supplement (1995) to the 12th ed,

p 44. Cf Nygh (1995) pp 220, 222-3 and 228-32; and A J Bland 'Classification Re-classified' (1957) 6 ICLQ 10.Beckett [W E Beckett, 'The Question of Classification ("Qualification") in Private International Law' (1934) 15British Yearbook of International Law 46 at 65] and Cavers [D F Cavers, 'Contemporary Conflicts Law InAmerican Perspective' (1970 III) 131 Recueil des Cours 77 at 136] appear to agree that the purpose of the ruleof substantive law to be characterised is of importance.

312 See in this regard, for example, Fawcett (1993) Ch IV; Australian Law Reform Commission, Choice of Law,Report No 58, AGPS, Canberra, 1992; and The Law Commission and the Scottish Law Commission, PrivateInternational Law: Choice of Law in Tort and Delict, Report No 193 (LC) and 129 (SLC), HMSO, London,1990.

313 Cf E Sykes and M Pryles, Australian Private International Law, (3rd ed), Law Book Company, Sydney, 1991,p 206.


recognising the utility of the suggested methodology and the fact that it may already beused to some extent by the courts under the guise of a manipulation of the traditionalmethod, it is the traditional process which is addressed in this article. However, in aprevious article by the present author314 the determinations of the territorial scope andextraterritorial operation of the CPA and TPA reached after an examination of, inter alia,the purposes of both statutes, were that the better view is that both statutes apply to foreignmanufacturers, and their territorial scopes are limited to injuries or damage that occur inthe United Kingdom and Australia respectively. Therefore the process proffered by theeditors of Dicey and Morris was, in terms, applied in that article not under the guise ofcharacterisation but rather in the ascertainment of the territorial scope of the statute and inthe determination of whether the statute has extraterritorial application.315

Most jurists consider that decisions characterising analogous legislation and the resultsof an examination of the foreign characterisations of foreign legal rules are of assistanceto an Anglo-English court in characterising a rule of law for private international lawpurposes.316

Those jurists who have attempted to characterise specific statutory causes of action forprivate international law or domestic purposes appear to have, in the light of themethodology employed in the reported decisions in this area, characterised the statutes bycomparing them to the established legal categories and choosing that category which itmost resembles.317 They have also had resort to decisions characterising analogouslegislation and any other provisions of the legislation which evidence any relevant intentionon the legislature's part.318

A number of jurists have stated that the rubric 'tort' includes rights and causes of actioncreated by statute as distinct from the common law for both domestic and privateinternational law purposes.

Whilst a thorough study of the comparative law dealing with the characterisation ofanalogous causes of action in different jurisdictions is beyond the scope of this articleconsideration has been given to the characterisation of analogous causes of action in theUSA and the characterisation which the European Court of Justice, and in passing themember States of the European Union, would give to legislation implementing the ProductLiability Directive. In the course of the preparation of the Law Reform Commissions'Reports on Product Liability in England and Australia comparative studies of thesubstantive law of product liability of a number of jurisdictions was undertaken. Similar

314 S Dutson, 'International Product Liability Litigation' (1996) 22(2) Monash University Law Review 244.315 Note that this would not have been a plausible option in the consideration of a common law cause of action as

opposed to a statutory cause of action because the second stage of determining the substantive jurisdiction of thecourt in the matter, would not take place. Therefore, in the case of a common law cause of action the applicationof the correct approach to characterisation could arguably prove crucial in a particular case.

316 See Nygh (1995) pp 226-7; J G McLeod, The Conflict of Laws, Carswell Legal Publications, Calgary, 1983,pp 46-8; A H Robertson, Characterization in the Conflict of Laws, Harvard University Press, Cambridge, 1940,p 90; Special Public Bill Committee - House of Lords, Private Il1:.temational Law (Miscellaneous Provisions)Bill [HL}, Proceedings of the Committee with Evidence and the Bill (as amended), HMSO, London, 1995 inCommittee 1 March 1995, col 16 per Lord Meston; and W E J3eckett, 'The Question of Classification("Qualification") in Private International Law' (1934) 15 British Yearbook of International Law 46 at 59 and65.

317 J Goldring, 'Product Liability And The Conflict Of Laws In Australia' (1978) 6 Adelaide Law Review 413 at422-6; D S1. L. Kelly and J Crawford, 'Choice of Law under the Cross-vesting Legislation' (1988) 62 AustralianlAw Joumal589 at 595-6; S W Cavanagh and C S Phegan, Product liability in Australia, Butterworths, Sydney,1983, pp 254-5; G M Gregg, and T D Tzovaras, 'The Liability of Manufacturers and Importers under the TradePractices Amendment Act 1978' (1979) Federal Law Review 398 at 416; S M Waddams, Products Liability, (3rded), Carswell, Toronto, 1993, p 157; L J Romero, 'The Consumer Products Warranties Act (Part II)' (1979-80)44 Saskatchewan lAw Review 261 [Romero (1979-80)] at 295 and 297-8; and D & C T Campbell (eds),International Product Liability, Lloyd's of London Press, London, 1993, pp 94-5. Cf Special Public BillCommittee (1995) in Committee 1 March 1995 at 16 per Lord Meston.

318 Goldring, op cit, Romero (1979-80) at 297-8, and C G J Morse, 'Product ~iability in the Conflict of Laws'(1989) 42 Current Law Problems 167 at 180-6.


studies have been undertaken by jurists independently of these Commissions. However,most of these studies merely address substantive product liability law and fail to deal withprivate international law issues, including characterisation.

The CPA and TPA purport to create statutory causes of action319 which enable anyperson, whether or not in a contractual relationship with the defendant, to sue the producerof a product, and additionally or alternatively various other specified defendants,320 fordamage321 caused by a defect in a product.322 Liability is strict in the sense that liabilitydoes not depend upon proof of fault323 but upon proof of damage caused by a defect.324

The identity or class of defendant that the plaintiff chooses to pursue under the relevantAct does not affect the nature, attributes or characterisation of the action under the Act.Contractual concepts such as merchantibility and fitness for purpose are irrelevant. Thecauses of action created by .the CPA and TPA are not predicated upon promises orrepresentations either express Of implied from the manufacturer. The remedy for an actionunder the CPA or TPA is unliquidated damages which is provided for by the commonlaw and will, it appears, be assessed according to common law principles.325 An actionunder the CPA or TPA is analogous to tort in that it is not an obligation freely enteredinto by one party to another but arises from an obligation imposed by law.326 The standardof liability in the CPA and TPA is strict, a standard shared with other actions in tort.

A claim such as that governed by the CPA or the TPA would be classified in a majorityof the countries of the European Community and by the European Court of Justice as atort, and, arguably, it is analogous to a strict products liability action in tort as it exists inthe majority of the States of the USA.

As has been demonstrated the provisions of the CPA, most notably s 6(7), do notevince any intention on Parliament's behalf which will assist us in characterising the causeof action created by the CPA.327 The same can be said of the cause of action created bythe TPA.

These considerations strongly indicate that the causes of action created by the CPA andthe TPA should be characterised as torts for private international law purposes.

The only possible alternative characterisation which seems plausible is that the actionsunder the CPA and TPA are sui generis.

It has been contended that the underlying policies of tort and contract differ and strictproducts liability is an amalgam of those concepts. Therefore, the argument continues, 'thecourts have little basis to characterise products liability as in tort or contract' .328

There is authority329 for the proposition that whilst a statutory claim may not easily fitinto a traditional juridical category each claim must be fitted in to whichever category ismost appropriate,330 however, there is no decision of high authority which requires this. Ifa statutory cause of action is manifestly different to any of the traditional categories there

319 As opposed to merely norms of conduct: contrast Brown v Jam Factory Pty LJd (1981) 53 FLR 340 at 348-9.320 Namely the 'own-brander' and importer of the product into the jurisdiction, if any. See s 2(2) of the CPA and

s 75AB of the TPA.321 As defined in s 5(1) of the CPA and the liability provisions of the TPA (ie ss 75AD, 75AE, 75AF, and 75AG).322 Section 2(1) of the CPA and s 75AC of the TPA.323 ie negligence, malice or intention (including recklessness): Markesinis et al (1994) pp 17-18, and Clerk and

Lindsell (1989) paras 1-60 and 1-61.324 See s 2(1), the second 'Whereas' in the preamble to the Directive, article 1 of the Directive, Paragraph 2 of the

Proposal from the Commission, and Official Report House of Lords vol 482, col 1004, 8 December 1986 per theLord Advocate; and the liability actions of the TPA.

325 See ss 2(1) and 5(4) of the CPA and s 75AD(d) of the TPA, respectively.326 Cf Kuhne (1972) at 11 and 20, Kaye (1991) p 63, n 14 and p 10.327 Cf Fawcett (1993) at 228.328 Kuhne (1972) p 11, however contrast the authors own contrary views at p 11, n 67 and p 20 where he advocates

characterising products liability as a tort for choice of law purposes.329 However a decision of a Supreme Court Master cannot be described as high authority.330 Op cit, n 40.


appears to be nothing to prevent the court declaring the action sui generis.331 If the causeof action created by the CPA or TPA were to be so characterised then if a choice of lawrule is to be applied to the action under the Act332 it will be a choice of law rule of thecourt's own creation which may borrow from other choice of law rules or may be acompletely new creation. This tailor-made choice of law rule may well reflect the policiesor parliamentary intention behind the statute.333

If a statutory cause of action is created that is based on a factual or legal matrix whichis manifestly different from the traditional juridical categories, it is a logical consequenceof the traditional choice of law structure that the cause of action be characterised as suigeneris with a choice of law rule appropriate to the nature, purpose and source of theaction.334 However, the causes of action created by the CPA and the TPA should not becharacterised as sui generis, they are analogous to a traditional juridical category - tort.Even if the courts decided to characterise the cause of action created by the CPA or TPAas a liability sui generis the choice of law rule which the courts would have to devisewould arguably be similar in effect to the tort choice of law rule because of the identicalcircumstances in which the CPA or TPA and the common law tort of negligence areapplicable335 and the fact that in practice a claim based upon the CPA will invariably bejoined with a common law claim of negligence.336 If the plaintiff has a contract with thedefendant, the defendant will be strictly liable under normal contractual principles and sothe CPA or TPA will be largely irrelevant.

The better rationale is that of Tebbens. Even if an argument does exist that thetheoretical nature of product liability is such that it should be characterised as sui generis,the courts would be disinclined to so characterise the cause of action created by the CPAor TPA. It is not the case that there is sufficient material in existence to justifycharacterisation as either a tort or sui generis. A preponderance of the features of liabilityunder the CPA and TPA are analogous to tort such that an irrefutable case would have tobe made for liability to be characterised otherwise. The better view is that no such casecan be made.

The better view upon the weighing up of all of these factors, is that the causes of actioncreated by the CPA and TPA should be characterised as torts for private international lawpurposes.337

331 Op cit, n 41.332 As Fawcett believes that the courts would do were this scenario to arise: Fawcett (1993) at 197.333 Cf R J Sharpe, Inter provincial Product Liability Litigation, Butterworths, Toronto, 1982, pp 90-101; A H

Robertson, Characterization in the Conflict of Laws, Harvard University Press, Cambridge, 1940, p 181 in respectof workers' compensation claims; pp 190-1, 200-1 and 204-9; and_M C Pryles, 'Tort And Related ObligationsIn Private International Law' [1991] II Recueil des Cours 9 at 197.

334 Cf Plozza v South Australia Insurance Company [1963] SASR 122: W R Lederman, 'Classification in PrivateInternational Law' (1951) 29 Canadian Bar Review 3 at 25, E I Sykes, & M C Pryles, Australian PrivateInternational Law, (3rd 00), Law Book Company, Sydney, 1991, p 202, Fawcett (1993) at 126, and Dicey andMorris (1993) P 44. Contrast Nygh (1995) pp 222 and 223.

335 Cf Fawcett (1993) at 126 and 128, D Kingsford-Smith and G Burton, 'Recent Problems with Characterization ofStatutory Rights in the Conflict of Laws' (1980) 9 Sydney Law Review 190 at 201; Kaye (1991) P 63, n 14; andJ Goldring, 'Product Liability And The Conflict Of Laws In Australia' (1978) 6 Adelaide Law Review 413 at425.

336 Cf J C Campbell QC, 'Contribution, Contributory Negligence and Section 52 of the Trade Practices Act - PartII' (1993) 67 Australian Law Journal 177 at 186; Fawcett (1993) at 126; and Kaye (1991) p 63, n 14.

337 Cf Fawcett (1993) at 27, 128 and 196-7 but contrast the unsupported statements at 233-4; C G J Morse, 'ProductLiability in the Conflict of Laws' (1989) 42 Current Law Problems 167 at 185; Kaye (1991) p 63, n 14; andS M Waddams, Products Liability, (3rd ed), Carswell, Toronto, 1993, p 157.

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