1 Liability Systems
1.1 What systems of product liability are available (i.e. liability in respect of damage to persons or property resulting from the supply of products found to be defective or faulty)? Is liability fault-based, or strict, or both? Does contractual liability play any role? Can liability be imposed for breach of statutory obligations, e.g. consumer fraud statutes?
In Ireland, liability for defective products falls under four main headings:
The principal product liability statute in Ireland is the Liability for Defective Products Act 1991 ("the 1991 Act"), which was enacted to implement EC Directive 85/374. This Act supplements, rather than replaces, the pre-existing remedies in tort and contract (see below). S.2(1) of the Act provides for strict liability, making a producer:
"liable in damages in tort for damage caused wholly or partly by a defect in his product".
It is worth noting that the 1991 Act covers only dangerous, defective products. Products which are safe, but shoddy, do not fall within its scope.
Manufacturers, repairers, installers, suppliers and others may be sued in tort for reasonably foreseeable damage caused to those to whom they owe a duty of care. As opposed to liability under the Liability for Defective Products Act 1991, liability in tort is fault-based.
For an action to lie in tort, there must be:
- a duty of care owed by the producer or manufacturer of the product;
- a breach of that duty of care; and
- a causal relationship between the breach and the damage caused to the user of the product.
Unlike under the 1991 Act, a plaintiff suing in tort may, in certain circumstances, succeed in a negligence action for non-dangerous defects.
Contracts for the sale of goods are covered in Ireland by the Sale of Goods Act 1893 ("the 1893 Act") and the Sale of Goods and Supply of Services Act 1980 ("the 1980 Act"). S.10 of the 1980 Act operates to add an implied condition to contracts for the sale of goods, that the goods are of "merchantable quality" where a seller sells them in the course of business. This means that the goods must be:
"fit for the purpose or purposes for which goods of that kind are commonly bought and durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all other relevant circumstances."
Contractual liability under the 1980 Act is strict. It must be borne in mind, however, that the principle of privity of contract applies, which often makes it difficult for an injured party to sue the manufacturer of a product in contract, since his contract is likely to be with the retailer of the product.
The principal legislation imposing criminal liability in the area of product liability is the European Communities (General Product Safety) Regulations 2004, as amended, ("the 2004 Regulations") which implemented EC Directive 2001/95. These Regulations make it an offence to place unsafe products on the market and specify the duties of producers and distributors in this regard.
Under the 2004 Regulations the Competition and Consumer Protection Commission is given the authority to ensure that only safe products are placed on the market. There is also a duty on producers and distributors to inform the Competition and Consumer Protection Commission where they know, or ought to know, that a product which has been placed on the market by them is incompatible with safety requirements. The Competition and Consumer Protection Commission has also been given the power to order a product recall, as set out in question 1.4 below.
In 2005, the Law Reform Commission published a report on Corporate Killing which proposed an offence of corporate manslaughter and an offence of grossly negligent management causing death. The Corporate Manslaughter Bill was published in December 2011, but has yet to be formally introduced into law.
Criminal liability is fault-based and must be proven beyond reasonable doubt.
1.2 Does the state operate any schemes of compensation for particular products?
This has been known to happen in Ireland in circumstances where some organ of the State may have a liability. The National Treasury Management Agency (the "NTMA") manages personal injury and property damage claims against the State. When performing these functions, the NTMA is known as the State Claims Agency (the "SCA"). Whilst this particular case was excluded from the SCA's remit, the most notable instance was the Hepatitis C Compensation Tribunal, which was set up in 1997 to compensate women who had become infected with Hepatitis C having been transfused with infected blood during pregnancy. A scheme was also set up to compensate haemophiliac plaintiffs of contaminated blood products. Such schemes are ad hoc, rather than statutorily required. The SCA issued a report in 2010 recommending that the compensation scheme providing for Irish Thalidomide survivors' compensation be revisited in order to place Ireland on a similar footing with other countries that have put Thalidomide compensation schemes in place.
1.3 Who bears responsibility for the fault/defect? The manufacturer, the importer, the distributor, the "retail" supplier or all of these?
As stated above, S.2(1) of the 1991 Act makes the "producer" of the defective product liable in damages caused wholly or partly by the defect in his product. In this regard, S.2(2) of the Act defines "producer" as:
- the manufacturer or producer of a finished product;
- the manufacturer or producer of any raw material or the manufacturer or producer of a component part of a product;
- in the case of products of the soil, of stock-farming and of fisheries and game, which have undergone initial processing, the person who carried out such processing;
- any person who, by putting his name, trademark or other distinguishing feature on the product or using his name or any such mark or feature in relation to the product, has held himself out to be the producer of the product;
- any person who has imported the product into a Member State from a place outside the European Communities in order, in the course of any business of his, to supply it to another; or
- the supplier of the product where the manufacturer of the product cannot be identified through the plaintiff taking reasonable steps to establish his identity and where the supplier fails to identify the manufacturer of the product within a reasonable amount of time of a request being made.
Under the law of tort, the test to be applied is whether a particular individual, e.g. the manufacturer, retailer, supplier or importer, owes a duty of care towards the injured party. If such a duty is owed and has been breached, that person is capable of having responsibility.
It is clear that the manufacturer of a product will owe a duty of care to all those who may foreseeably be injured or damaged by his product. The same will apply to retailers, suppliers and importers, though the scope of their duty will typically be narrower than that of manufacturers, extending to, for example, a duty to ensure that their stock is not out-of-date. In practice, a plaintiff will not be required to choose which of a number of possible defendants to sue, and any or all potential tortfeasors are likely to be sued.
Under the 1893 Act and the 1980 Act, the seller will, subject to certain conditions and exemptions, have a contractual responsibility to the buyer in respect of faults or defects.
In terms of the criminal law, the 2004 Regulations make a "producer" who places or attempts to place an unsafe product on the market, guilty of an offence. The 2004 Regulations define a "producer" as:
- the manufacturer of a product and any other person presenting himself as the manufacturer by affixing to the product his name, trademark or other distinctive mark, or the person who reconditions the product;
- the manufacturer's representative, when the manufacturer is not established in the Community or, if there is no representative established in the Community, the importer of the product; or
- other professionals in the supply chain, in so far as their activities may affect the safety properties of a product placed on the market.
The 2004 Regulations also make distributors who supply or attempt to supply a dangerous product, which they know or it is reasonable to presume that they should know, is dangerous, as guilty of an offence. In this regard, a "distributor" is defined as any professional in the supply chain whose activity does not affect the safety properties of the product.
1.4 In what circumstances is there an obligation to recall products, and in what way may a claim for failure to recall be brought?
Under S.9 of the 2004 Regulations, the Competition and Consumer Protection Commission is given the power to "take all reasonable measures" to ensure that products placed on the market are safe, including issuing a direction ensuring "the immediate withdrawal of [a] product from the marketplace, its recall from consumers and its destruction in suitable conditions". Under S.9(2) of the 2004 Regulations in taking this, or any other measure, under the Regulations, the Competition and Consumer Protection Commission must act "in a manner proportional to the seriousness of the risk and taking due account of the precautionary principle".
A person who fails to comply with a direction of the Competition and Consumer Protection Commission with respect to the recall of products is guilty of a criminal offence and is liable on summary conviction to a fine not exceeding €3,000, or to imprisonment for a term not exceeding three months, or to both.
In addition, the common law duty of care imposed by the law of tort (see above) may extend to product recall depending on the circumstances of the particular case. Thus a failure to recall in particular circumstances may be a breach of such duty, giving rise to a civil action.
1.5 Do criminal sanctions apply to the supply of defective products?
Yes, under the 2004 Regulations "producers", or "distributors", as defined, may be made criminally liable where unsafe products have been placed on the market. Please see questions 1.1 and 1.3 above for details.
2.1 Who has the burden of proving fault/defect and damage?
As a general principle, it is for the injured party to prove the defect to the product and the damage caused. This is stated in S.4 of the 1991 Act and is a general rule of the laws of contract and tort.
In tort and contract, the standard of proof is "on the balance of probabilities", while in criminal cases, the guilt of the accused must be proved "beyond reasonable doubt".
In certain circumstances, particularly in tort, the doctrine of res ipsa loquitur can be applied to, in effect, reverse the burden of proof and place the onus on the defendant to disprove an allegation of negligence. Since the 1991 Act operates a system of strict liability and is thus unconcerned with the negligence or otherwise of the defendant, res ipsa loquitur will have no such application in the context of a claim relying solely on the provisions of the 1991 Act. In practice, however, for this reason, claims will seldom, if ever, be brought relying solely on the provisions of the 1991 Act.
In criminal cases, it is for the prosecution to prove the guilt of the accused. Under the 2004 Regulations, the prosecutor in such offences is the Competition and Consumer Protection Commission.
2.2 What test is applied for proof of causation? Is it enough for the claimant to show that the defendant wrongly exposed the claimant to an increased risk of a type of injury known to be associated with the product, even if it cannot be proved by the claimant that the injury would not have arisen without such exposure?
S.4 of the 1991 Act provides that the injured person must prove the damage, the defect and the causal relationship between the two.
Wrongful exposure to an increased risk of injury will not, in itself, provide a claimant with a cause of action. The causal relationship to a concrete loss or injury must be proven. If a claimant cannot prove, on the balance of probabilities, that an injury would not have occurred without exposure to the product in question, he/she has not discharged the civil burden of proof on causation.
As stated above, where the claimant encounters problems in proving a causal relationship, the doctrine of res ipsa loquitur may be of assistance.
2.3 What is the legal position if it cannot be established which of several possible producers manufactured the defective product? Does any form of marketshare liability apply?
As stated above, under S.2(3) of the 1991 Act, where the producer of a product cannot be identified through the plaintiff taking reasonable steps, the supplier of the product may be treated as its producer unless he informs the plaintiff of the identity of the producer, or of the person who supplied him with the product, "within a reasonable time" of such a request being made.
In terms of the law of tort, it would be usual, in circumstances where a plaintiff cannot, with absolute certainty, identify the producer of a defective product, that the plaintiff would institute proceedings against all parties whom he reasonably suspects could have been responsible for its manufacture. Notices of Indemnity and Contribution may be served by each of the defendants on their co-defendants and ultimate liability (or an apportionment thereof), if any, will be decided by a court at trial of the issue.
Market share liability has not, to date, been applied by the Irish courts in product liability cases.
2.4 Does a failure to warn give rise to liability and, if so, in what circumstances? What information, advice and warnings are taken into account: only information provided directly to the injured party, or also information supplied to an intermediary in the chain of supply between the manufacturer and consumer? Does it make any difference to the answer if the product can only be obtained through the intermediary who owes a separate obligation to assess the suitability of the product for the particular consumer, e.g. a surgeon using a temporary or permanent medical device, a doctor prescribing a medicine or a pharmacist recommending a medicine? Is there any principle of "learned intermediary" under your law pursuant to which the supply of information to the learned intermediary discharges the duty owed by the manufacturer to the ultimate consumer to make available appropriate product information?
As in other Member States, Ireland's membership of the European Union has necessitated the introduction of regulations in many industries stipulating specific information and warnings which must be provided to consumers as to the nature, ingredients/contents and safety of products. Failure to comply with these regulations can have consequences for product manufacturers and distributors. Such consequences vary depending on the provisions of the individual regulations.
Specific statutory requirements aside, however, the issue of whether warnings must be provided to consumers falls within the question of compliance with the standard of reasonable care under the Irish law of tort. It should be noted that an increased level of awareness in society of product safety, and increased expectations on the provision of product information, have made it more likely in recent times that the absence of an express warning in respect of a danger attaching to a product will be deemed to constitute negligence.
As further evidence of the pro-consumer approach within this jurisdiction, the relevance of intermediate examination has been consistently undermined by the law over the years. Formerly, it was not considered negligent to allow a potentially dangerous product into circulation if the danger could reasonably be discovered by way of intermediate examination by the consumer or a middleman in the chain of distribution. However, S.34(2)(f) of the Civil Liability Act 1961 provides that, while the possibility of intermediate examination may be taken into account as a factor in determining negligence, it is no longer conclusive. Whether the release of the product is seen as negligent will, therefore, depend on all the circumstances.
While the concept of a "learned intermediary" has not yet received specific judicial examination in Ireland, it is likely that the fact that an examining intermediary has some expertise in the composition and safety of the product could be pleaded to the benefit of the manufacturer in arguing that the release was not negligent in all the circumstances.
As regards criminal law, S.6 of the 2004 Regulations provides that a producer must provide consumers with "all relevant information" relating to a product which it has put on the market to "enable [the consumer] to assess the risks inherent in the product throughout the normal or reasonably foreseeable period of its use, where such risks are not immediately obvious without adequate warnings and to take precautions against those risks". In addition, powers are granted to the Competition and Consumer Protection Commission under S.9 of the 2004 Regulations to issue a direction that a particular product be marked with a risk warning.
3 Defences and Estoppel
3.1 What defences, if any, are available?
Under S.6 of the 1991 Act, a Producer is freed from liability under the Act if he proves:
- that he did not put the product into circulation;
- that it is probable that the defect causing the damage came into being after the product was put into circulation by him;
- that the product was not manufactured for a profit-making sale;
- that the product was neither manufactured nor distributed in the course of his business;
- that the defect is due to compliance of the product with mandatory regulations issued by the public authorities;
- that the state of scientific and technical knowledge at the time when the product was put into circulation was not such as to enable the defect to be discovered ("State of the Art" Defence); or
- in the case of a manufacturer of a component of the final product, that the defect is attributable to the design of the product or to the instructions given by the product manufacturer.
Furthermore, if the damage was caused, partly by a defect in the product, and partly by the fault of the injured person, or a person for whom the injured person was responsible, the provisions of the Civil Liability Act 1961 in relation to contributory negligence apply (see below).
In Ireland, this defence is regulated by the Civil Liability Act, 1961 ("the 1961 Act"), which provides, with some exceptions, that where the plaintiff is partly at fault, damages will be reduced in proportion to that fault. It has been held that the fault necessary is to be equated with blameworthiness and not to the extent of the causative factors moving from each side. Equally, a plaintiff will be responsible for the acts of a person for whom he is vicariously liable (imputed contributory negligence). Finally, failure by a plaintiff to mitigate damage is also considered to be contributory negligence.
Voluntary Assumption of Risk (Volenti Non Fit Injuria)
This defence is regulated by S.34(1)(b) of the 1961 Act. A defendant may escape liability in two cases:
- where he shows that by contract he is not liable (though the contract will be construed strictly against the party claiming the benefit of the exception); or
- where he shows that, before the act, the plaintiff agreed to waive his legal rights in respect of it.
In both cases, the burden of proof is on the defendant to prove that the defence applies. In practice, this defence is difficult to prove.
To have a workable contract, the basic rules of contract formation must be complied with, i.e. there must be an offer, acceptance and consideration. The absence of these essential elements can act as a defence to an action in contract. Likewise, mistake, misrepresentation and duress will affect the validity of a contract. Furthermore, "illegal" contracts are invalid or, in some cases, may have the offending provision severed. Inadequate capacity to contract may also affect the validity of a contract.
Under S.5 of the 2004 Regulations a product shall be deemed safe if it conforms with any specific rules of the law of the State laying down the health and safety requirements which the product must satisfy in order to be marketed, or with voluntary Irish standards transposing European standards. However, notwithstanding this, the Competition and Consumer Protection Commission may take "appropriate measures" to impose restrictions on a product being placed on the market, or to require its withdrawal or recall, where there is evidence that, despite such conformity, the product is dangerous.
3.2 Is there a state of the art/development risk defence? Is there a defence if the fault/defect in the product was not discoverable given the state of scientific and technical knowledge at the time of supply? If there is such a defence, is it for the claimant to prove that the fault/defect was discoverable or is it for the manufacturer to prove that it was not?
Yes (see question 3.1 above), under the provisions of the 1991 Act. Where the defence is raised by a manufacturer, the burden of proof lies with the manufacturer to prove the state of scientific and technical knowledge at the relevant time, and that the fault/defect was not discoverable.
3.3 Is it a defence for the manufacturer to show that he complied with regulatory and/or statutory requirements relating to the development, manufacture, licensing, marketing and supply of the product?
Yes, under S.6 of the 1991 Act, where this compliance can be shown to be the cause of the defect itself, this will be a defence to any cause of action based upon the 1991 Act. It may not necessarily, however, be a defence to a cause of action based upon breach of duty or breach of contract.
With respect to criminal law, please see question 3.1 above. While compliance with regulatory and statutory requirements will, prima facie, be taken to show that the product is safe, the Competition and Consumer Protection Commission is given the power, under the 2004 Regulations, to take "appropriate measures" where there is evidence that the product is, nonetheless, dangerous.
3.4 Can claimants re-litigate issues of fault, defect or the capability of a product to cause a certain type of damage, provided they arise in separate proceedings brought by a different claimant, or does some form of issue estoppel prevent this?
Provided they arise in separate proceedings brought by a different claimant, findings on issues of fact, as opposed to issues of law, are of no precedent value and are not binding in a court. Issues of fault, defect and capability of a product to cause damage are issues of fact and unless the parties, of their own volition, or the court, by order, consolidates two or more claims into one set of proceedings, findings of fact will not be binding in respect of other claimants.
To continue reading, please click here.
This article appeared in the 2015 edition of The International Comparative Legal Guide to: Product Liability; published by Global Legal Group Ltd, London.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.