Tort - Product Liability

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Defective Products Act 1991

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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.

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Defective Products Act 1991 - Defences under s. 6

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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.

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EC Commission v. UK (1997)

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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.

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Limitation

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

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Liability in Negligence for Defective Products - Introduction

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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).

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

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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).

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Liability in Negligence for Defective Products - Standard of Care

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

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Cassells v. M&S (2001)

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

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Keegan v. Owens (1953)

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

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Brown v. Cotterill (1934)

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Duty owed by stonemason to child visiting a graveyard.

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Donoghue v. Stevenson (1931)

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Established that a duty of care exists for the manufacturer of a product outside of contract law

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Kirby v. Burke & Holloway (1944).

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Approved Donoghue v. Stevenson (1931) in Ireland.

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Power v. Bedford Motor Co. (1959)

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Mechanics liable for negligent repair work on a car

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Causation

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

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Duffy v. Rooney & Dunnes Stores (1997)

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