Liability for Defective Products Act 1991
Encyclopedia
The Liability for Defective Products Act 1991 is an Act
of the Oireachtas
that augmented Irish law
on product liability
formerly based solely on negligence
. It introduced a strict liability
regime for defective products, implementing Council of the European Union
Directive 85/374/EEC
.
. Under the Act
, a producer shall be strictly liable for damages in tort
for damage (either to property or an individual) caused wholly or partly by a defect in his producthttp://www.bailii.org/ie/legis/num_act/1991/zza28y1991.1.html#zza28y1991s2.
a producer is anyone who:
Electricity
is considered a product for the purposes of the Act
In O'Byrne v Gloucester the plaintiff, a young girl, was standing next to an indoor heater when her cotton
dress caught fire, burning her badly. The defendants were found guilty of negligence
, in that they failed to avoid a grave and foreseeable risk by taking the easily affordable precaution of affixing a warning to the dress.
According to the decision in Cassells v Marks and Spencers, a producer of a flammable garment, need only give a basic warning. As McGuinness J said:
"In addition, I find it somewhat difficult to follow the logic of the argument asserted on behalf of the plaintiff that a warning “KEEP AWAY FROM FIRE” merely “tells people what they know already” and is too bland. The warning clearly indicates that the garment is made of flammable material - otherwise there would be no need for the warning."
statute
, the defendant's taking reasonable care is irrelevant.
It is a defence if:
In addition, where the damage arose partially out of the negligence
of the plaintiff, then the damages
shall be apportioned as per Chapter III of the Civil Liability Act, 1961.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Oireachtas
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
that augmented Irish law
Irish law
Irish law may refer to:*Northern Ireland law*Law of the Republic of Ireland*Early Irish law...
on product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
formerly based solely on negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
. It introduced a strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
regime for defective products, implementing Council of the European Union
Council of the European Union
The Council of the European Union is the institution in the legislature of the European Union representing the executives of member states, the other legislative body being the European Parliament. The Council is composed of twenty-seven national ministers...
Directive 85/374/EEC
Directive 85/374/EEC
The Product Liability Directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products is a directive of the Council of the European Union that created a...
.
Liability for Defective Products Act, 1991
The Liability for Defective Products Act, 1991 was enacted pursuant to the EC Directive on Product Liability 85/374/EECDirective 85/374/EEC
The Product Liability Directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products is a directive of the Council of the European Union that created a...
. Under the Act
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, a producer shall be strictly liable for damages in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
for damage (either to property or an individual) caused wholly or partly by a defect in his producthttp://www.bailii.org/ie/legis/num_act/1991/zza28y1991.1.html#zza28y1991s2.
Producers
Under the terms of the ActStatute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
a producer is anyone who:
- manufactures a finished product, raw material or a component of a product.
- processes agricultural or other food products (specifically plantsTillageTillage is the agricultural preparation of the soil by mechanical agitation of various types, such as digging, stirring, and overturning. Examples of human-powered tilling methods using hand tools include shovelling, picking, mattock work, hoeing, and raking...
, livestockLivestockLivestock refers to one or more domesticated animals raised in an agricultural setting to produce commodities such as food, fiber and labor. The term "livestock" as used in this article does not include poultry or farmed fish; however the inclusion of these, especially poultry, within the meaning...
, fishFishFish are a paraphyletic group of organisms that consist of all gill-bearing aquatic vertebrate animals that lack limbs with digits. Included in this definition are the living hagfish, lampreys, and cartilaginous and bony fish, as well as various extinct related groups...
or gameGame (food)Game is any animal hunted for food or not normally domesticated. Game animals are also hunted for sport.The type and range of animals hunted for food varies in different parts of the world. This will be influenced by climate, animal diversity, local taste and locally accepted view about what can or...
.) - makes himself out to be the producer by virtue of attaching his name, brand, trademarkTrademarkA trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
etc to the product. - has imported the product into the EUEuropean UnionThe European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
to supply it to another person as part of his business. - has supplied the product, where the producer cannot be identified and any attempt by the injured party to elicit the producer's identity is frustrated or ignored.
Electricity
Electricity
Electricity is a general term encompassing a variety of phenomena resulting from the presence and flow of electric charge. These include many easily recognizable phenomena, such as lightning, static electricity, and the flow of electrical current in an electrical wire...
is considered a product for the purposes of the Act
Defects
A defect is anything which results in the product failing to provide the safety a consumer is entitled to expect, taking into account all the circumstanceshttp://www.bailii.org/ie/legis/num_act/1991/zza28y1991.1.html#zza28y1991s5. The Act expressly mentions three:- The presentation of the product - e.g. warning labelsWarning Labels"Warning Labels" is the title of a song written by Kim Williams and Oscar Turman, and recorded by American country music artist Doug Stone. It was released in June 1992 as the lead single from the album From the Heart. The song reached #4 on the Billboard Hot Country Singles & Tracks chart.-Chart...
, instructions, probably even serving suggestions. - The use the product could reasonably expected to be put - jamming a fork into a toaster for example would almost certainly not be actionable.
- The time the product was put into circulation - relevant in that the safety of any product will diminish given enough time and in addition the standards expected by the community may increase
Warning labels
Over the past number of years a number of Irish cases have dealt with the issue of warning labels on products (mostly in connection with flammable clothing.) While developed in the context of negligence, they seem likely to inform future court judgments in terms of what constitutes a suitable presentation of a product.In O'Byrne v Gloucester the plaintiff, a young girl, was standing next to an indoor heater when her cotton
Cotton
Cotton is a soft, fluffy staple fiber that grows in a boll, or protective capsule, around the seeds of cotton plants of the genus Gossypium. The fiber is almost pure cellulose. The botanical purpose of cotton fiber is to aid in seed dispersal....
dress caught fire, burning her badly. The defendants were found guilty of negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, in that they failed to avoid a grave and foreseeable risk by taking the easily affordable precaution of affixing a warning to the dress.
According to the decision in Cassells v Marks and Spencers, a producer of a flammable garment, need only give a basic warning. As McGuinness J said:
"In addition, I find it somewhat difficult to follow the logic of the argument asserted on behalf of the plaintiff that a warning “KEEP AWAY FROM FIRE” merely “tells people what they know already” and is too bland. The warning clearly indicates that the garment is made of flammable material - otherwise there would be no need for the warning."
Defences
There are six specific defences availablehttp://www.bailii.org/ie/legis/num_act/1991/zza28y1991.1.html#zza28y1991s6. Being a strict liabilityStrict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, the defendant's taking reasonable care is irrelevant.
It is a defence if:
- it is proved the defendant did not put the product into circulation.
- given the circumstances, it is probable that the defect did not exist at the time the product was put into circulation, or it came into being afterwards.
- the product was not manufactured for an economic purpose (e.g. sale, marketingMarketingMarketing is the process used to determine what products or services may be of interest to customers, and the strategy to use in sales, communications and business development. It generates the strategy that underlies sales techniques, business communication, and business developments...
) nor as part of the defendant's business. - the defect arises out of compliance with EU law
- the state of scientific or technological knowledge when the product was circulated was not such as to allow the defect be discovered.
- where the product is a component, the defect lay in the design of the final product into which it was fitted (e.g. where a chandelier collapsed due to being dangerously overweighed with lights, the producer of an individual bulb would have a defence.)
In addition, where the damage arose partially out of the negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
of the plaintiff, then the damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
shall be apportioned as per Chapter III of the Civil Liability Act, 1961.