We may feel some sympathy for the manufacturer with the Sword of Damocles hanging over his head. We certainly feel sorry for the manufacturer of a water meter, hit by a claim for property damages some 26 years after he sold the meter. This is what happened in Rosenau v. City of New Brunswick (238 A2d 169). On the other hand, we would hardly be unmoved by the misfortunes of the property owner if he is told by a court “You are out of time” when a defect has remained dormant for so many years. Moreover, the Rosenau case involved only property damage, and we would feel even more sorry for a plaintiff who suffers personal injury, and who is yet deprived of a remedy. There is thus a dilemma, a social problem created by the conflicting interests of manufacturer and consumer.

This dilemma exists because of the distinction between tort and contract. Statutes of limitations provide that an action may not be brought after the lapse of a certain time from the date when the cause of action arose, and the trouble is that a cause of action arises in contract when the goods are delivered, and in tort when the injury happens. A plaintiff suing for a defect under breach of warranty has a certain number of years in which to sue, counted from the date of sale, and the supplier therefore knows that his liability is not going to extend into infinity. If the plaintiff sues in negligence, however, the period of limitation starts when the injury occurs, no matter how many years that may be after the product was sold. The exposure of the manufacturer, and of his insurer, is thus indefinite. It is this indefinite exposure that has caused a demand in some quarters for “Reform of the Law of Tort,” although all that is really needed is revision of the statutes of limitations.

Some legislatures have in fact listened to the cries for reform, and have passed statutes restricting in some way the right to sue. Since legislatures tend often to listen to the loudest voices, and the loudest voices seem to be those of manufacturers and their insurers, we must be aware of the danger that these amending statutes may favour the manufacturer at the expense of the user or the bystander. In April, 1977, a Senate subcommittee of the U.S. Congress held a three-day hearing on the subject of Product Liability Insurance, and it is not surprising that several proposals put forward at this hearing were intended to restrict the right to sue. For example, on behalf of the American Insurance Association, which has nearly 150 insurance company members, Dennis R. Connolly said, referring to the current law that a cause of action arises when the injury occurs: