Liability and its Influence on Designing for Product and Process Safety

Abstract

Developed nations encourage corporate development of new products and industrial processes, and rely on various social controls to assure that these technological advances do not pose unreasonable risks to health, safety, property, and the environment. The social controls, in the form of government regulation, private self-regulation, market forces, and tort liability doctrines, are expected to be responsive to risk and harm. Thus, the social controls are expected to have preventive and corrective functions: to shape or influence the design and preparation of new products and processes so they will not be harmful when they are put to their intended use; and if harmful after being put to use, to bring about corrective changes in design or modes of use in order to reduce residual risks and prevent recurrence of the harms.

Among the social controls in the U.S.A. and European Union, tort liability has gained prominence for several reasons. It can be applied to the broadest range of harm-causing products and processes. It can be quickly activated when new evidence emerges that a particular advance is injurious. It can be the most sudden and severe social control, capable of quickly causing economic loss for a company whose product or process is found to be harmful. And it is feared by companies and therefore has a preventive function in that it deters companies from disregarding risks when designing new products and processes.

This chapter focuses on tort liability in the U.S.A. and European Union domains, its doctrines of fault-based liability and strict liability, and their relevance to product and process design. It also discusses new environmental liability laws and other recent developments which have design implications. Finally, it discusses company decision-making on product and process design, a context in which the deterrent effect of tort liability, and many competing factors, are considered.