Ireland: Guide To Product Liability 2017

Last Updated: 15 June 2017
Article by Tom Hayes and Michael Byrne

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:

  • Statute.
  • Tort.
  • Contract.
  • Criminal.

Statute

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: "[L]iable 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.

Tort

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.

Contract

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:

"[F]it 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.

Criminal Liability

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 ("CPCC") 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 CPCC 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 CPCC has also been given the power to order a product recall, as set out in question 1.4 below.

In May 2016, the Irish government published a draft Corporate Manslaughter Bill. This draft bill includes the separate indictable offences of "corporate manslaughter" and "grossly negligent management causing death". The Bill is based on the Law Reform Commission Report on Corporate Killing dated October 2005 which recommended that a new offence of corporate manslaughter be created. The Bill is currently at the initial parliamentary review stage. 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. More recently, the 'Surgical Symphysiotomy Ex-gratia Payment Scheme' was set up in 2014 to compensate women who underwent historical symphysiotomy procedures in the State. There is also a scheme 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?

Statute

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.

Tort

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.

Contract

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.

Criminal

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, 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 CPCC 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 CPCC 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 CPCC 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.

To view the full article please click here.

Previously published in the International Comparative Legal Guide

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Matheson
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Matheson
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions