by Andrew McClurg, Adem Koyuncu and Luis Eduardo Sprovieri. Durham, North Carolina; Carolina Academic Press, 2007. 262pp. Paperback. $25.00. ISBN: 9781594601927.
Reviewed by Wade Mansell, Kent Law School, University of Kent, UK. Email: W.M.Mansell [at] kent.ac.uk.
Casual readers of the LPBR might wonder whether asking a tort legal academic from the UK to review a book about tort litigation in the USA, Germany and Argentina was altogether wise – apprehensions shared by the reviewer. But having read and thought about the book, I am very pleased with my somewhat reckless acceptance. Furthermore because I was outside all three jurisdictions it was easier to understand, as might a US student, the advantages and disadvantages of such an approach. But although open-minded, I was concerned and imagined that I might finish the book with too little knowledge of each of the jurisdictions to make the exercise worthwhile.
Although restricted in scope the book is extraordinarily ambitious – an ambition belied by the insistence that the book ‘is intended as a basic primer on comparative tort law and litigation in the US common law system and a major civil law system from Europe (Germany) and Latin America (Argentina) using one common kind of products liability case as the vehicle for exploration’ (p.3). Not only is it ambitious, it is also innovative. Each of the three authors works within the legal system about which they write, but each is able to write lucidly in a style that is ‘user friendly’ and always comprehensible. If there really is an audience interested to know how a products liability case would proceed in these three different jurisdictions then this is the book to recommend.
Happily its audience should be much wider than this. The products liability case is primarily the vehicle to enable the similarities and differences of the three jurisdictions to be described. While it might be thought that the restricted facts of a typical products liability case could scarcely bear such a burden, this is manifestly not the reality. As an outsider to all three jurisdictions I found the exposition of the legal system and substantive and procedural law and legal method cogent and compelling. And while an overall evaluation of the qualities and disadvantages of each is largely missing this is because the description itself is the objective. And while there is no overall evaluation, each of the authors does engage in ‘self-criticism’ and compares and contrasts the other jurisdictions with his own. Overall evaluation is (rightly) left to the reader.
It is this that may prove problematic. Although the contrasts between the three jurisdictions are of great interest, what they have in common is much greater than their differences. All have effectively concluded (by legislation, directive or otherwise) that liability for [*844] product defects causing harm, whether the defect occurs in the manufacturing, the design or through an informational defect (such as inadequate warnings or instructions for use) should effectively be strict. This means that once the defect has been proven, it will not, in any of the jurisdictions, usually be necessary to show that it arose through negligence. In the words of the authors, ‘[a]lthough the law varies in details from country to country, the core liability theories show strong cohesion’ (p.108).
Nevertheless there is one significant difference that arises from the difference of the personnel called upon to decide the level of damages in a successful claim. In the US negligence will be alleged (if it is thought it can be proven) even though apparently unnecessary, because it is thought, on good empirical evidence that if it can be shown that the defendant did something ‘wrong’ then the chances of a favourable verdict (and greater damages) are enhanced (pp.108-109). To one educated in a different system this seems strange indeed. If the object of an award of damages is, as it is in each of the jurisdictions, to put the plaintiff as nearly as possible into the position she would have been in but for the tort, then either those who simply rely upon the strict product liability as their cause of action are being under-compensated or those who additionally prove negligence may be over-compensated. Such are the hazards of using lay juries to determine quantum.
As most readers will appreciate, to accept that liability is strict in the case of accidents that result from product liability, does not entirely remove all problems, even though there will be no need to prove negligence. In particular, and this is a main theme of the book, causation must be proved. What this means is that liability will only arise if it can be proved as required that the injury was caused by the product satisfactorily shown to have been defective. How this may be proved and the method of doing so in each of the jurisdictions is crucial as is the question of who, if anyone, beyond the manufacturer may be sued. Again the comparisons are revealing and do give a significant flavour of the operation of the legal system of each country.
But again it is the high level of consensus that detracts from any overall perspective upon the law. The chosen ‘case’ (the facts were invented) concerns a woman who allegedly, while pressing a lid back on to an opened jar of peanuts, suffers very severe lacerations when the glass jar shatters. The final chapter considers the probable course and outcome of the case in each jurisdiction. These conclusions are instructive. The US writer (McClurg) concludes that the outcome is uncertain (and the prospect of success less than 50%), as is whether Silvia (the maimed woman) would be able to persuade a lawyer to represent her on a contingency basis. The rather alarming conclusion is that the resolution of both uncertainties will finally be dependent on how Silvia presents herself!
We always pictured Silvia as a sincere, honest, hardworking “victim” of circumstances. If she came across that way to the jury, she would have a much better chance of winning, particularly if she were attractive. Not attractive in a glamorous way, which could work against her, but pleasant-looking. Many empirical studies show we are inclined to associate good qualities with people – both men and women – who are physically attractive. Studies show that less attractive people are less favored in [*845] almost every context of life: by their teachers, employers, even parents. Why should jurors be immune? (p.197)
The German author (Koyuncu) concludes that Silvia would obtain legal representation, but unless there is more proof of the likelihood of the glass jar having been defectively manufactured, her chances of recovering damages are no more than 50% and probably lower. The Argentinian author (Sprovieri) concludes that without further evidence concerning the state of the jar (the shattered pieces had been disposed of) Silvia’s chances of success in the courts are no higher than 20-30%.
What surprises me about these conclusions is not their uniformity but their apparently sanguine acceptance by each author of the projected result, as an appropriate outcome. It is this together with the explicit decision that the book should not be about the category of torts themselves but only an exposition of the process by which cases are decided that seems to me to be this interesting book’s greatest deficiency. How much more intellectually stimulating this book would have been had a fourth jurisdiction (New Zealand) been included for comparison. This would usefully have challenged the consensus to be found in the other three. In New Zealand, common law actions for negligence (and product liability) have been abandoned in favour of compensation for accidents. Instead of directing enquiry to the cause of an accident, New Zealand accident compensation law focuses upon the fact of the accident and the needs of the injured party. Almost all of the ‘unknowns’ of Silvia’s case that need to be known to ensure compensation in the US, Argentina or Germany are irrelevant to the question of compensation in New Zealand. And while the level of compensation is significantly less than that of a successful common law tort action it is not inconsiderable. What is surely objectionable about Silvia’s case is the arbitrariness of the outcome. It is at least arguable that it is preferable that all accident victims receive some compensation, rather than some receiving full compensation and others none at all though their needs may be identical.
Nevertheless, that observation should not detract from what is an accessible introduction to one piece of comparative law. The different attitudes to the role of juries in personal injury cases, the different ways by which litigants have access to lawyers and their level of required financial commitment (and the consideration of contingency fees), the differences in the level and burden of proof, the disparity between the appropriate level of damages, and the different particular procedures for obtaining evidence are all informative and useful in evaluating each of the jurisdictions. The idea of how to write such a book by applying different law to the same set of facts was inspired, and I look forward to further volumes in this Contextual Approach Series.
Last but not least, the production of the book by the publishers is exemplary and is both aesthetically pleasing and priced (for a law book) very reasonably.
© Copyright 2007 by the author, Wade Mansell.