Products Liability Part 2 Flashcards
-Introduction to Liability for Defective Products Act 1991
Liability for defective products is governed by both the tort of negligence and the Liability for Defective Products Act, 1991.
The 1991 Act implements an EU Directive (Directive 85/374/EC) and provides a form of strict liability for injuries caused by defective products.
Generally, it will be easier to recover under the 1991 Act, however, the common law on products liability has not been abolished and must also be considered as it may be relevant in certain cases where either the 1991 Act does not apply, or the plaintiff wishes to rely on the common law to recover for some reason.
For example, the Act is designed to provide a remedy for consumers who suffer damage to their property rather than persons acting in the course of a business who suffer damage to their property. Persons acting within the course of a business are entitled to use the common law.
The Act applies to dangerous defects rather than non-dangerous defects. The common law of negligence provides a remedy for non-dangerous defects.
What is the Cause of Action under the 1991 Act? What section applies and what type of liability is it? What must the plaintiff prove?
Section 2(1) of the Act provides, “the producer shall be liable in damages in tort for damage caused wholly or partly by a defect in his product”.
The Act provides a scheme of “strict” liability: the plaintiff does not need to prove negligence on the defendant producer’s part once the plaintiff can prove that the damage in question was caused by a defect in the producer’s product. There are, however, a number of defences open to a defendant, which if established exclude the defendant’s liability.
Thus, liability is not absolute.
Four elements of cause of action?
- Producer
- Damage
- Defect
- Product
What must the plaintiff prove? Under the Liability for Defective Products Act 1991?
Section 4 of the Act provides that the burden is on the plaintiff to prove the damage, the defect and the causal relationship between the defect and the damage.
Who is a producer?
Ó hAonghusa v. DCC plc
[2011] IEHC 300 the plaintiff alleged that he was travelling in his motorised wheelchair when the tube in the front right tyre gave out and caused the wheelchair to topple over, as a result of which the plaintiff suffered personal injuries. The plaintiff sued the retailer, the supplier and the manufacturer of the wheelchair under the Act and the common law of negligence.
McGarry v. McGarry & Ors.
the plaintiff was a three-year-old child who was injured when a glass table-top separated from its supporting legs. Barton J held the third defendant, who was the retailer, could also be considered to be a “producer” on the basis that it had been responsible for assembling the table.
Define Damage under the Liability for Defective Products Act 1991
Damage is defined in s 1(1) as meaning (a) death or personal injury and (b) loss of, damage to, or destruction of, any item of property other than the defective product itself.
Define personal injury
defined to include “any disease and any impairment of a person’s physical or mental condition”.
Define Defect
Section 5 provides a product is defective if it fails to provide the safety which a person is entitled to expect, taking all circumstances into account, including:
a) the presentation of the product,
b) the use to which it could reasonably be expected that the product would
be put, and
c) the time when the product was put into circulation.
What type of safety is required under the act
reasonable safety not absolute safety
How does the Directive Define Safety
On the other hand, the preamble to the Directive makes it clear that just because a product is fit for use does not mean it cannot be defective in terms of safety:
[6] … the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances;
A v. National Blood Authority [2001] 3 All ER 289
Plaintiffs won case when they were infected with Hep C from infected blood transfers. Blood was found to be a defective product for the purpose of the Directive.
The safety is not what is actually expected by the public at large, but what they are entitled to expect … The common ground is that the question is what the legitimate expectation is of persons generally, i.e., what is legitimately to be expected, arrived at objectively. “Legitimate expectation”, rather than ‘entitled expectation’ appeared to all of us to be a more happy formulation (and is analogous to the formulation in other languages in which the Directive is published); the use of that expression is not intended to import any administrative law concepts.
The Court decides what the public is entitled to expect … Such objectively assessed legitimate expectation may accord with actual expectation; but it may be more than the public actually expects, thus imposing a higher standard of safety, or it may be less than the public actually expects.
Abouzaid v. Mothercare
2-year- old boy suffered an eye injury when he was helping his mother attach a product known as “Cosytoes” to a pushchair. The product was a fleece-lined sleeping bag for use by a young child. The product was intended to be attached to the pushchair by elasticated straps passed around the back of the pushchair from each side of it and joined by a metal buckle attached to one of the straps. While attaching the buckle, one of the straps slipped from his hand and the buckle hit the boy in his left eye and the injury left him with seriously impaired vision. Pill LJ held the product was defective for the purposes of the Act, even though the risk of eye injury was unlikely,
The product was defective because it was supplied with a design which permitted the risk to arise and without giving a warning that the user should not so position himself that the risk arose. Members of the public were entitled to expect better from the appellants. A factor in that expectation is the vulnerability of the eye and the serious consequences which may follow from a blunt injury to the eye. Expectations would be different if the worst which could occur was an impact of elastic on the hand. It is not necessary for the Court to determine precisely what more should have been done. It is clear that more could have been done, for example a non-elasticated method of attachment or instructions to fasten the straps from behind the seat unit, together with a warning.
Pill LJ held the defendant was liable under the Act, even though there it was not negligent at common law.
On the other hand, the objective standard of care which a producer is required to reach may be higher than the level of safety the public is legitimately entitled to expect, for example having regard to the state of knowledge of the public of the actual safety standards in the industry. This was seen in the case of
Tesco Stores Ltd v. CFP [2006] EWCA Civ 393
where a child of 13 months ingested dishwasher powder purchased from Tesco and became seriously ill. It was alleged the neck of the bottle and the cap were defective so the cap was easier to detach that it should have been. The cap was a child resistant, squeeze and turn cap. It was found as fact that the cap was easier to open that it should have been but still had some child resistance effect. The trial judge held it was improbable a child of 13 months would attempt to open the bottle as an adult would, i.e. by squeezing and turning the cap, although the child could have opened the bottle by squeezing the cap with both hands or otherwise pulling or twisting the cap. It was held the cap was defective in allowing the child to obtain access to the contents of the bottle.
The trial judge found that although there was no legal requirement to fit a child resistant cap on the product, the fact the producer had elected to do so meant a consumer was entitled to expect and would expect the cap to function at least to the standard usually applied to such caps in accordance with the British Standard Certificate issued in respect of that cap. It was found that the pressure required to open the cap was in fact less than the minimum required by the certificate. The fact that the product was marketed with a child resistant cap as a safety feature meant the consumer had an expectation that it would comply with the expected standard of child resistant caps.
Define Product
“Product” is defined in s 1(1) of the Act and includes all movables even where those movables are incorporated into other movables or immovables (e.g. component parts and raw materials) Land and buildings are excluded from the definition, therefore. However, component parts of a building are included.
Limitations of the Act: Time
Section 7 provides that the right of action under the Act expires three years from the date on which the cause of action accrued or the date, if later, on which the plaintiff became aware or should reasonably have become aware of the damage, the defect, and the identity of the producer. All rights of action expire ten years after the date on which the product in question for first put into circulation unless proceedings have been initiated.
