Watson v British Boxing Board of Control: Negligent Rule‐Making in the Court of Appeal
| Published date | 01 January 2002 |
| DOI | http://doi.org/10.1111/1468-2230.00370 |
| Author | James George |
| Date | 01 January 2002 |
In the US this balancing process has been worked out down to very product
specific case law. In Europe where there is less case law it is arguable that the
concept of defectiveness and the role of the development risks defence needs to be
spelt out in more detail in legislation. Since the Directive was adopted the issues
surrounding their interpretation have become clearer. The problem is that there
seems little evidence that the Commission has the energy to tackle these complex
questions.
56
This means slowly the Courts of Europe will have to undertake this
task. As Burton J’s judgment illustrates this will require courts to make increasing
use of comparative law. This comparative approach is to be commended as it
encourages the national courts to share in the task of the Court of Justice of
creating an even development of law within Europe.
We have previously argued that the development risks defence can best removed
and the issue addressed under the defectiveness standard.
57
In the instant case the
court was concerned with a danger known to the industry but not to the public. If
there was a danger that not even the industry knew about, the product might be held
not to be defective, although much would depend on the overall circumstances: to
make the producer liable for every unforeseen danger (even if a sensible policy)
would exceed the regime intended to be provided by the Directive.
Watson vBritish Boxing Board of Control: Negligent
Rule-Making in the Court of Appeal
James George*
In Watson vBritish Boxing Board of Control Ltd,
1
the Court of Appeal has upheld
an unprecedented decision that a regulatory body can be liable for negligence in
the exercise of its rule-making functions. The decision is of interest for several
reasons. First, Watson is apparently the first reported case in which the English
courts have had to consider whether a regulatory body can be held liable in
negligence for failing to make adequate rules. Claims against regulators in respect
of inadequate enforcement and supervision have generally failed on the ground that
no duty of care was owed to any particular member of the public or to any
regulated person. One might expect that rule-making would be even less likely to
give rise to such a duty, because its focus on generalised problems rather than
specific cases would normally preclude a finding that there was proximity between
the parties. This note will therefore consider the implications of Watson for
liability in respect of both rule-making and enforcement. Secondly, Watson is one
of a very small number of decisions about the negligence liabilities of sporting
56 Report on the Application of Directive 85/374 on Liability for Defective Products, European
Commission, 31 January 2001.
57 n 10 above especially at s C 8.
*Herbert Smith, London. I am grateful to Andrew Lidbetter for his comments on an earlier draft.
106 ßThe Modern Law Review Limited 2002
The Modern Law Review [Vol. 65
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