产品责任制为设计带来的启示.doc

【篇名】Design Implications of Product Liability（产品责任制为设计带来的启示）【作者】J.G. Roche【出处】Elsevier期刊 Procedia Engineering, 2012年08月【关键词】产品设计、责任制、用户分析、【摘要】Fitness for use is judged not by the designer, manufacturer or retailer but by the user. Juran et al. 1 identify the following as the major parameters of fitness for use:Quality of Design,Quality of Conformance,The abilities,Field service.Quality of Design can be regarded as a composite of three separate steps ina common progression of activities:Identification of what constitutes fitness for use to the user;Choice of a concept of product or service to be responsive to the identifiedneeds of the user;Translation of the chosen product concept into a detailed set of specificationswhich, if faithfully executed, will then meet the users needs.Juransl four parameters of fitness for use and their inter-relationships are shownin Figure 1.As is implied in Figure 1, Quality of Design is influenced by the quality of marketresearch. Market inputs may be vague and the designer or design team may haveto frame a design concept with incomplete market information. But market inputis just one of the inputs which make up the designers brief. Knowledge of the production facilities available and their capabilities is essential as is knowledgeof the process involved in production. Does the workforce have the necessaryskills? What materials are available and what do they cost; What will productioncosts be? Are they expected to be too high in the light of the expected selling price?For many engineering products, reliability and maintainability requirements needto be determined. The ready availability of spare parts may be crucial for someproducts. Likewise, field service may be of major importance.The Arrival of Strict Product LiabilityThese then are the factors which influence Fitness for Use and which shouldbe expressed or implied in the designers brief. But how successful have designersbeen in achieving fitness for use in the products which they have designed? Theremarkable growth of the consumer movement in the past twenty years is areflection of widepread dissatisfaction with products and services available. Oneaspect of consumer dissatisfaction, safety or more correctly, the lack of safety,has received particular attention in courts and in legislatures, especially in the US.In 1963, the Supreme Court of California ruled that A manufacturer is strictlyliable in tort when an article he places on the market, knowing that it is to beused without inspection for defects, proves to have a defect which causes injuryto a human being. This Californian decision was followed by many other statesand led to the Product Liability Crisis of the early 1970s in the US. Despitethis legal background, it was estimated that in 1973 there were over six millionproduct-associated accidents in the US. The sheer size of the problem led to theestablishment of the US Consumer Product Safety Commission (CPSC) in 1973.The Commissions main task is to reduce unreasonable risks of injury associatedwith consumer products. It can set mandatory safety standards, ban products andorder recalls if necessary.In Europe, court decisions eased the lot of injured consumers. But the courtsdid not introduce strict product liability in tort as did the Californian Supreme Court.However, events such as the thalidomide disaster focused attention on the needfor legal changes to assist persons injured by defective products. If the injuredperson has purchased the product, existing contract laws make it comparativelyeasy to obtain redress. But if the injured person is not the purchaser, redressis very difficult, if not impossible, to secure.The accident toll in Europe was, as in the US, horrendously high. In 1985, BEUC,the European organisation for consumers, published a report on consumer safety.The report quoted EEC Commission estimates that there were 30,000 deathsper year and 40 million injuries due to domestic accidents in 19842.During the 1970s various British and European organisations considered theintroduction of strict product liability in tort. The Council of Europe opened theConvention on Products Liability to signature by the Member States in 1977. TheConvention made the producer liable to pay compensation for death or personalinjuries caused by a defect in his product. But few Member States of the Councilof Europe were willing to adopt the Convention as there was also a Draft Directiveon Product Liability under discussion. This Draft had been issued by the EECCommission in 1976; it was amended in 1979 and was finally adopted in July 1985.Unlike the Convention, the Directive requires Member States to pass legislationconforming to the Directive on or before 30 July 1988.From the viewpoint of the designer, the critical articles of the Directive areArticles 1 and 6 and (b), (d), (e) and (f) of Article 7. Article 1 states:The producer shall be liable for damage caused by a defect in his product.Article 6 defines a defective product as follows:A product is defective when it does not provide the safety which a person is entitled toexpect, taking all circumstances into account, including:the presentation of the product;the use to which it could reasonably be expected that the product would be put;the time when the product was put into circulation.A product shall not be considered defective for the sole reason that a better product issubsequently put into circulation.Article 7 describes defences available to the producer; only those relevant to designare reproduced here:(b) that, having regard to the circumstances, it is probable that the defect which caused thedamage did not exist at the time when the product was put into circulation or that thisdefect came into being afterwards; or(d) that the. defect is due to compliance of the product with mandatory regulations issued bythe public authorities; or(e) that the state of scientific and technical knowledge at the time was not such as to enablethe existence of the defect to be discovered; or(f) in the case of a manufacturer of a component, that the defect is attributable to the designof the product in which the component has been fitted or to the instructions given by themanufacturer of the product.According to Article eight, the producers liability may be reduced or disallowedin cases where there is both a product defect and contributory negligence by theinjured party or by a person for whom the injured party is responsible. Article19 of the Directive requires Member States to bring into force the laws, regulationsand administrative provisions necessary to comply with this Directive beforethe end of July 1988.Design for SafetyThe emphasis on safety in this Directive makes product safety an essentialcomponent of the designers brief. Undoubtedly, many designers have alwaysregarded safety as an essential part of product design. But the evidence of somany product-related accidents and injuries indicates that some designers havenot given safety its due prominence. A booklet3 produced by Insurance Companyof North America states that design and manufacturing defects were the mostfrequently alleged cause of liability suits (39 per cent and 37 per cent). But thebooklet also notes that failure to warn defects were cited in 21 per cent of thecases. So in considering Fitness for Use the designer must pay attention not merelyto the design quality but also to Quality of Conformance. When hazards can notbe effectively designed out of products, appropriate warnings are an obviousrequirement.In assessing defectiveness our courts will have to determine the safety to whicha person is entitled to expect. In this assessment the court is required to takeinto account the presentation of the product, the use to which it could reasonablybe expected that the product could be put and the time when the product wasput into circulation. When defectiveness is determined in this fashion, it meansthat the definition of product must be revised to include:the actual product,labels,packaging,container,installation/use instructions,warranty documents,sales brochures,spare parts,advertising material,catalogues.If the producer wishes to avail of defence (b) in Article 7, evidence will be requiredto show that the defect did not exist at the time that the product was put intocirculation. Defence (d) will require designers to be familiar with mandatoryregulations or standards issued by the relevant public authorities. Defence (e)will require the designer to keep abreast of scientific and technical developmentsthat are relevant to the product in question. Defence (0 will require the designerof a product used as a component to be sufficiently competent to be able to showthat it was the design of the product in which the component was fitted or theinstructions given by the manufacturer of the product that caused the damage.The American report Safety in the Market Place notes that for any product,the development and design activities comprise the most fluid stage in itspreparation for the market place. It is also one of the most important, for onceperformance specifications have been selected and the design has been committed,it will dictate in large measure what processes, materials and quality controlprocedures will be required 4. A design defect, unlike a production defect, affectsall items p policies. roduced. A design defect may also nullify the shield of product liability insurance .外文资料翻译译文 产品责任制为设计带来的启示产品使用的舒适性不是根据设计者、制造商或者零售商自身的需求作为设计标准的，而是根据使用者的需要进行设计的。Juan等人就将以下内容作为主要舒适性能的判断参数 产品设计质量 产品的适用性 特定性能 适用领域的服务性设计质量是在指在一项设计中所针对的三个分别独立的步骤：(1)满足使用舒适性的构成要素；(2)产品或服务的设计观念的选择，需要满足使用者对必要功能的需要；(3) 如果可以严格执行将已确定的产品设计观念融入到一系列具体的设计规范中这一理念，那么就会满足使用者的需求。Juran将四个和使用舒适性相关的使用参数以及它们彼此的关系进行了归纳总结，正如表一所示。而所设计产品的好坏会受到市场调查效果的影响。产品的好坏的标准可能是很模糊的，而对于设计师或者是一个设计团队而言就有必要将不完整的市场信息列出一个设计理念框架进行研究。市场上对生产设施的可用性和它们的承载能力的了解是必不可少的，因为对这一过程的了解和生产息息相关。但工人们都有这种必要的技能吗？什么样的材料可用而它们的成本是多少？是否是人们依据预期的售价对成本估计过高？许多工程材料的可靠性和可维护性的基本性能还没确定，因此备件的应急使用能力对许多产品可能是至关重要的。而产品适用领域的服务性也同样具有重要意义。严格的产品责任的落实这些因素影响了使用的舒适性而且应该在设计师的设计中得到体现，可是设计师们在他们的设计工作中有多少成功的满足了这一要求呢？在过去的20年里消费者运动的大规模增长反映了消费者对产品以及服务的不满。更准确的说消费者的不满在安全方面，安全保障的缺失已经引起了法院和立法机关的重视，特别是在美国。在1963年，加州最高法院裁定，“当制造商生产劣质产品并将其投放到市场上时买卖，之前又没有用探伤仪检测，结果证明这导致了人身伤害，那么他就已经严重侵犯了他人的权益”。加州政府的决策被许多州效仿结果导致了20世纪70年代美国的产品责任危机，尽管那时有立法，但是据估计在1973年仍然有超过600000人发生和产品质量相关的事故。由于这个问题波及的巨大范围带来的影响，同年美国消费者产品安全委员会成立，该委员会的只要责任是减少由消费品所引起的意外伤害， 并设立了强制性的安全标准，如果有必要的话，还要禁止劣质产品买卖并召回有问题的产品。在欧洲，法庭的判决会使很多受伤的消费者的身心压力得到缓解，可是他们不会介绍关于人身侵犯方面应该依据产品安全保障法方面的知识，因为这是加利福尼亚最高法院的职责。例如反应停灾害事件，它将问题集中在法律修改有问题的产品方面以帮助那些因为使用劣质产品而受伤的人， 如果他们已经亲自购买了这些产品，依据现有具体的法律法规很容易使消费者得到补偿，但如果受害者不是直接的购买者，补救是很难的，而如果他是，则他的权益是可以得到保障的。在欧洲也发生了和美国一样的事故。BEUC是一所专门为消费者服务的组织，它在1985年针对消费者的安全问题发表了一篇报告，报告里引用了EEC组织的调查结果，平均每年有30000人死亡，而在1984这一年就有4000000人因为类似的事故受伤。在20世纪70年代英国和欧洲各机构审议认为严格的产品责任制是侵权行为。在1977年欧洲理事会举办了关于产品安全责任公约的签字仪式。公约规定生产者要赔偿因为它所生产的产品缺陷引起的伤亡事件。由于产品责任落实的草案还处于讨论阶段，因此大多数成员国表示不愿意接受这一条约，这一草案已经在1976年就被EEC委员会谈论过,在1979年修正，而在1985年才最后被各成员国承认接受。但与这个条约不同，依照现有规章制度，这个立案需要在1988年7月30日前通过立法审核。从设计师的角度来看，客观的讲该法令中关键条款是第1和第6条以及（b），（d），（e）和（f号中的第7条）。第1条规定：生产者应当承担由于自己的产品缺陷所造成的损害。第6条规定如下：(1)产品不能提供安全保障时它就是有缺陷的，而使用者有权利将以下因素