Tort - Product Liability

Front 1

General Principles

Back 1

Three distinct areas of law affect defective products:

i. Contract law, where there is an enforecable contract, the parties have recourse to the Sale of Goods and Supply of Services Act 1980;

ii. Defective Products Act 1991, where there is no contract or where a party to the contract is bankrupt;

iii. Negligence principles, where there is no contract or where a party to the contract is bankrupt.

A Pl needing to sue in tort for a defective product has recourse to both (ii) and (iii), although negligence claims have tended to be more successful before the courts since 1991.

Front 2

Defective Products Act 1991

Back 2

Enacted on foot of Council Directive 85/374.

Responds to the difficulty in proving negligence of the manufacturer, which requires proof of duty, breach of standard, causation and damage, and which can involve difficulties in terms of non-dangerous products.

DPA 1991 includes strict liability.

Front 3

Defective Products Act 1991 - Definitions and Primary Issues

Back 3

s. 1: Damage = death, personal/mental injury, property damage (where the property is not the product itself and exceeds the value of €445). The Act is unclear whether pain and suffering can be recovered.

s. 2: Liability = strict liability; the producer shall be liable for damage caused wholly/partly by his product.

s. 2: Product = moveable, saleable industrially-produced products; under EC Reg 2000, now also primary agricultural products.

s. 2: Producer = very broadly defined; manufacturer of finished product or of component parts, processors of agricultural products, importers into the EU, suppliers where the producer’s identity cannot be reasonably established; trademark bearers.

s. 4: Onus of proof is on the Pl to show causation; then liability is strict.

s. 5: Defective = failing to provide the safety the consumer is entitled to expect, with regard to (a) presentation of the product; (b) intended use of the product; (c) time of circulation.

Front 4

Defective Products Act 1991 - Defences under s. 6

Back 4

i. Did not put product into circulation (e.g. stolen/still in production);

ii. Defect not present at time of circulation, appeared later (per cur: excluding latent defects);

iii. Not put into circulation for commercial purposes;

iv. Compliance with EC law caused defect;

v. State of science at time of circulation insufficient to discover defect.

vi. Raw material producers’ defence: overall design or assembly cause the defect.

Front 5

EC Commission v. UK (1997)

Back 5

ECJ interpreted defence v. (State of science at time of circulation insufficient to discover defect.) to refer not just to established industrial practice, but to any scientific knowledge available to the Def.

Front 6

Limitation

Back 6

Limitations (s. 7): 3 years from accrual, maximum 10 years from circulation.

Front 7

Liability in Negligence for Defective Products - Introduction

Back 7

NB: This should be examined in tandem with the 1991 Act; one major advantage here is that res ipsa cannot be used with the 1991 Act, whereas it can for negligence, and sometimes the Pl may have difficulty showing how the product caused damage.

Leading case: Donoghue v. Stevenson (1931): established that a duty of care exists for the manufacturer of a product outside of contract law (contract law was not applicable because of privity).

Approved in Ireland in Kirby v. Burke & Holloway (1944).

Front 8

Liability in Negligence for Defective Products - Persons Owing a Duty of Care

Back 8

Since Donoghue, the duty has been extended to various parties in addition to producers:

Parties with control over the condition of the product, parties with special skill and expertise, commercial entites;

Repairers (under Power v. Bedford Motor Co. (1959) – negligent repair work on a car);

Suppliers (under Keegan v. Owens (1953) – supplier of carnival swing boats held directly responsible for injury).

Front 9

Liability in Negligence for Defective Products - Standard of Care

Back 9

Depends on the nature of the product – e.g. high for pharmaceutical products; for clothing, there is a duty to warn sufficiently about flammability.

Front 10

Cassells v. M&S (2001)

Back 10

SC held a label stitched into the garment under the hem to be sufficient warning.

Front 11

Keegan v. Owens (1953)

Back 11

Pl was a voluntary assistant helping out with rides at a fairground, duty owed. – supplier of carnival swing boats held directly responsible for injury.

Front 12

Brown v. Cotterill (1934)

Back 12

Duty owed by stonemason to child visiting a graveyard.

Front 13

Donoghue v. Stevenson (1931)

Back 13

Established that a duty of care exists for the manufacturer of a product outside of contract law (contract law was not applicable because of privity).

Front 14

Kirby v. Burke & Holloway (1944).

Back 14

Approved Donoghue v. Stevenson (1931) in Ireland.

Front 15

Power v. Bedford Motor Co. (1959)

Back 15

Mechanics liable for negligent repair work on a car

Front 16

Causation

Back 16

Causal link between the defect (or lack of warning) and the damage must be shown by the Pl.

Front 17

Duffy v. Rooney & Dunnes Stores (1997)

Back 17

Despite insufficient warning as to flammability, no liability, as evidence showed that the garment would have been bought and worn regardless of a warning.