Product Liability

Question 1

What is Product Liability

Answer 1

Product liability refers to instances where a person is injured while using a product manufactured or supplied by another person.

Where a plaintiff suffers injury in this way there are generally 3 avenues of redress open to them:

(i) They can bring an action in negligence
(ii) where the goods were purchased by the plaintiff, they can sue in contract law (often relying on the sale of Goods and Supply of services legislation
(iii) They may bring a claim under the Liability for Defective Products Act, 1991

Question 2

Common Law approach - Product liability

Answer 2

A manufacturer of a defective product will be liable to the ultimate consumer for all reasonably foreseeable injury caused by that product

Question 3

what are the facts of Brown v Cotteril?

Answer 3

In Brown v Cotteril the plaintiff was visiting a churchyard when she was injured by a falling tombstone which had been erected by the defendants. In finding for the plaintiff, Lawrence J held that the defendants had been negligent in erecting the tombstone and that there was a duty owed by them to every member of the public who might lawfully enter the churchyard. Lawrence J quoted Donoghue v Stevensn and addressed the issue of proximity and the duty owed

Question 4

definition of manufactures

Answer 4

The common law definition of manufacturer has been widely defined and includes repairers, assemblers and even retailers of products

Question 5

what are the facts of Stennett v Hancock and Peters

Answer 5

The plaintiff was a pedestrian struck by a flange which became detached from the wheel of the first named defendant’s lorry. The flange had been negligently repaired by the second defendants and the repairers were found liable as “manufacturers” as it was foreseeable that should they not carry out their duties responsibly, other road users could be injured

Question 6

is liability limited to the consumer

Answer 6

liability in negligence is not limited to the ‘ultimate consumer’, but may include any member of the public who should have been in the reasonable contemplation of the manufacturer when they produced their product.

Question 7

what are the facts of Barnett v H & J parker & Co ltd

Answer 7

the plaintiff confectioner
successfully sued for personal injuries when a negligently produced sweet contained a wire which cut the plaintiff’s fingers when he handled the products causing him to contract blood poisoning.

The court found that the producer’s duty was not limited to the ultimate consumer
of the product (which would have been the purchasers of the confectionary) but to all those who it could be reasonably foreseen would be injured by the defendant’s negligent actions or omissions.

In this instance as the plaintiff handled the products, he was sufficiently proximate to impose liability.

Question 8

duty to warn

Answer 8

At common law the manufacturer of a product has a duty to warn the unsuspecting
public of any foreseeable dangers in the use of the product. The manufacturer will be liable for all foreseeable use (including misuse) of the product and must act accordingly to discharge his
duty of care.

Question 9

what are the facts of O’byrne v. Gloucester & Ors

Answer 9

In O’Byrne v. Gloucester & Ors5 the plaintiff, a 15 yr old girl, was badly burned when her skirt came into contact with a gas heater in her home.

The plaintiff brought an action against the
manufacturers of the skirt alleging that they had been negligent in failing to warn of the
product’s flammability.

The Supreme Court upheld the claim on the basis that the danger was one which should have been foreseeable to the defendants and therefore they owed the plaintiff a duty of care. It is important to note however that the Supreme Court held this duty could have been discharged by attaching an appropriate warning label.

Question 10

Liability in Contract

Answer 10

In addition to the terms agreed between the parties in their contract, legislation also imposes additional conditions, for example the Sale of Goods & Supply of Services Act 1980 which contains provisions relating to merchantability and fitness for purpose of goods sold.

A buyer can recover compensation in contract law from the seller of a product if it does not comply with the terms of the contract and if he suffers loss or damage as a direct result of the products failure.

To succeed in a case in contract law the buyer does not have to prove any negligence on the seller but rather that the product bought does not comply with the terms of the contract agreed between the parties and that he has suffered loss or damage as a result.,

Establishing liability is restricted by the doctrine of ‘privity of contract’ which requires that for a party to have recourse under a contract they must be party to the contract themselves. Thus where the injured person had no contractual relationship with the manufacturer or retailer, contract law may not afford him a remedy

Question 11

define damage

Answer 11

Damage includes death, or personal injury and includes damage to property, other than the product provided that the property was something that is normally used by a private person, and that it was in fact used by the injured person for private use

Question 12

define injured person

Answer 12

This is described as a person who has suffered damage caused wholly or partly by a defect in the product

Question 13

define a product

Answer 13

A movable, even if it is incorporated into another product or an immovable and the definition includes electricity.

Question 14

define personal injury

Answer 14

it is defined as including any disease and any impairment of a person’s physical or mental condition

Question 15

liability for Defective Products Act 1991

Answer 15

This Act created a strict liability regime for defective products and in so doing changed the basis on which actions for such damage had been brought for over fifty years. As the regime is based on statute, there is relatively little case law. Instead the scope of protection offered in individual sections is the key
defining feature of the law.

S.2(1)
Producer shall be liable for any damages caused wholly or in part due to defect in his product.
S.4
The onus shall be on the injured person concerned to prove damage, and the defect, and their causal relationship
– strict liability.
S.9(2)
Defence of contributory negligence.
S.10
Cant contract out of liability.

Question 16

what are the facts of the thalidomide tragedy?

Answer 16

There was outrage due to the inability in law to compensate the children who suffered significant personal injuries as a result of their mothers taking the drug thalidomide.

The product was
designed to ease ‘morning sickness’ and is still incirculation as a powerful anti-nausea drug but when taken by pregnant women it caused their children to suffer significant deformities with
some of them missing limbs.

In S v Distillers (Biochemicals) Ltd8 the issue arose because the children had no claim in contract law as they had not contracted with the manufacturers - their
mothers did. Therefore they had to rely on the tort of negligence. However, there were considerable difficulties in proving breach of duty as the evidence showed the injuries were
attributable to the product’s design yet medical and scientific opinion was sharply divided on the state of scientific and medical knowledge at the time it was put into circulation. Testing on
embryos was not part of ilie screening process in 1958 when the drug was released to the market and so the plaintiffs failed to establish a case in negligence.

Question 17

what are the facts of Cohanova v Dunnes Stores

Answer 17

Pl used a glass jug to hold tea – this was a practice in eastern Europe but not in Ireland. The jug exploded when
she used it for tea causing injury – argued that there should have been a warning. COA overturned the HC. A ct. requires common sense. It is well established that a glass vessel can’t hold hot boiling water. Evidence also suggest
that she did have understanding of the risk. There was no duty to warn over such an apparent risk. Dunnes was
not required to be aware that it was a common practice in Europe – they had sold 11,000 units with no accident
previously.

Question 18

Limitation of Damages

Answer 18

Section 3 provides a minimum threshold before damages will be awarded under the Act.
To rely on the Act, a plaintiff’s injuries must exceed 350 and the damage recovered will be for amounts in excess of this minimum threshold. therefore, if a person has a claim where they suffered 500 worth of damage, then the Act provides that they would be able to clim for 150 in court

Question 19

Definition of Defect

Answer 19

According to Section 5, a product is defective if it fails to provide the safety which a
person is entitled to expect, taking all circumstances into account, including:

(i) The presentation of the product
(ii) The use to which it could reasonably be put and
(iii) The time it was put into circulation.

Question 20

Suppliers

Answer 20

Section 2(3) imposes potential liability on all who supply a product. Importantly however, liability is provisional in that it only renders suppliers liable in circumstances where that supplier fails to identify a person higher up the chain of liability as the producer

The section therefore turns a supplier into a producer if the following conditions are satisfied

(i) the producer s(2)(2) cannot be identified by taking reasonable steps;
(ii) The injured person requests the supplier to identify someone from the s2(2) list;
(iii) The request is made within a reasonable time after the damage occurs; and
(iv) The supplier fails to comply with it or identify the producer

Question 21

consumer expectation test

Answer 21

The safety of a product will be judged according to objective criteria based on the circumstances of the case

Question 22

inferior quality product

Answer 22

An inferior quality product is not considered defective for the purpose of the directive unless it introduces a risk of injury.

Question 23

what are the facts of Bogle v mcdonald’s restaurant? - legitimate expectations test

Answer 23

The legitimate expectations test was applied by Field J who held that the hot drinks which McDonald’s sold to customers were not defective since persons generally expected that such drinks would be hot and the risks of spilling a hot drink on someone and being scalded as a result were well known.
Field J rejected the claim that McDonalds could have avoided injury by serving coffee at a lower temperature

Question 24

what are the facts of Pollard v Tesco?

Answer 24

In Pollard v Tesco Stores, which concerned the ease with which a young child could open
a bottle of dishwasher powder, the Court set the relevant expectation as being that the bottle
should be “more difficult to open that an ordinary screw-top”, which it was, and so there was no defect despite the existence of a British Standard minimum torque for such bottles. Such a
standard would not be within the knowledge of most members of the public.

Question 25

circumstances taken into account in assessing defectiveness

Answer 25

.(i) Presentation of a Product:
This category concerns products which are alleged to be defective because they are not
accompanied by adequate warnings or instructions for safe use or installation. For example a child’s toy that does not warn of small pieces causing a choking hazard.

(ii) Reasonable Use: The use to which a product can reasonably be put will be based on an objective test of
reasonableness. It acknowledges that while most products are capable of causing harm if used
in an unreasonable way, this does not of itself mean that they have failed to achieve the required level of safety.

(iii) Time then the product was out into circulation: this consideration throws light on what a person is entitled to expect from a product. For example one would not be entitled to expect that chocolate cake would be edible after a year, and equally one should expect that a product will become unsafe after sufficient wear and tear

Question 26

x v Johnson and Johnson

Answer 26

X v Johnson and Johnson, another Belgian case, dealt with a claim brought by a 16-year-old girl
who had incorrectly inserted a mini tampon into the urethra and not the vagina. The incorrect insertion involved a lot of effort and pain and, on her mother’s advice, vaseline.

The claimant was unable to remove the tampon after insertion and suffered toxic shock syndrome. The
claimant argued that the product was defective because it did not warn against insertion in the wrong place.

The court dismissed the claim, on the basis that the use to which the claimant put the product was not to be reasonably expected.

Question 27

what are the facts of Abouzaid v Mothercare (UK)

Answer 27

it involved the defendant’s product Cosytoes. The plaintiff minor was helping his mother attach the product to his brother’s push chair when one of the elastic straps slipped and the buckle hit him in the left eye blinding him.

The defendant had argued that the defect in question was only regarded as a defect when the case was brought (10 years after the incident) and so when the product ws put into circulation it was not so regarded, as they had had no complaints.

The Court of Appeal held that although the case was a boderline example, the product was defective because a product was to be judged by the expectations of the public at large as determined by the Court. Public expectations had not changed in the ten years since the incident and the Court held that elasticated products had been in use for many years and there was no suggestion of any technical advance that might reasonably affect the level of safety which persons generally were entitled to expect in relation to a product of this nature

Question 28

causation

Answer 28

Section 4 provides that in claims under the Act, the onus is on the plaintiff to prove the
damage, defect and the causal relation between them.

In establishing causation for the purposes of the Act, there are three elements that must be proved by a plaintiff:

(i) That the plaintiff suffered damage,
(ii) That the product was defective, and
(iii) That there was a causal relationship between the defect and the damage.

Question 29

defences

Answer 29

(a) The producer did not put the product into circulation
(b) The defect came into existence after the product was put into circulation
(c) Non-commercial producers
(d) Compliance with Mandatory Statutory Requirements
(e) Development Risks Defence
(f) Component Producers

Question 30

Defence - (a) The producer did not put the product into circulation

Answer 30

An article has normally been put into circulation once it has been put into the chain of
distribution. Thus, if a product is released onto a market as a result of theft, the Act provides
that the producer in that instance would not be strictly liable.

In O’Byrne v Sanoft Pasteur, the ECJ held that that a product is put into circulation when it leaves the production process operated by the producer and enters a marketing process in
the form in which it is offered to the public in order to be used or consumed.

Question 31

Defence - (b) The defect came into existence after the product was put into circulation

Answer 31

One of the conditions of liability is that the defect should arise in the production process.
Liability is therefore excluded where the defect arose after the product was put into
circulation.
It is expected that products will weaken and decay over time and provided this
decay is within reasonable expectations, there will be no liability under the Act. It is only
when this decay is premature, that the product will be considered defective and normally this defect will be regarded as a defect inhering in it from the time it was put into circulation

Question 32

Defence - (c) Non-commercial producers

Answer 32

This defence recognises that the law seeks to impose liability on consumers and sellers but does not seek to enforce such standards on non-commercial activity.

In 1977 the UK Law
Commission gave the following examples:
“A housewife for instance, who makes home-made jam for her local church sale-of-work should not be liable; nor should the man who sells apples to his neighbours over the garden wall.

On the other hand, the country dweller who provides home-made teas for tourists throughout the summer,
and the small scale market gardener would presumably be regarded as acting the in the course of business.

Question 33

Defence - (d) Compliance with Mandatory Statutory Requirements

Answer 33

This is a very narrow defence, in that, in the unlikely event that the defect in the product
results from compliance with a safety statute or mandatory regulations, then the producer
will not be liable. However, the defect must be attributable to compliance with the relevant
requirements and it is difficult to envisage a situation where safety standards would create
a dangerous defect.

Question 34

Defence - (f) Component Producers

Answer 34

This defence allows the manufacturer of a component part to escape liability where the responsibility rests with the manufacturer of the product in which the component is fitted.
The case at which the defence is aimed is where component parts such as nuts and bolts are made to the order of the finished product manufacturer, who then uses them for purposes for which they were not designed.

Question 35

Defence - (e) Development Risks defence

Answer 35

This has proved to be one of the most controversial elements of the Products Liability reform. Under the defence, a producer will be relieved of liability if they can prove that the state of scientific and technical knowledge at the time when he put the product into
circulation was not such that the existence of the defect could have been discovered.

Thus if the product was as safe as the state of the art would allow at the time of production, subsequent improvements in safety in the production process may not be relied upon by an injured plaintiff in setting the standard of safety. In determining what constitutes ‘state of the art’, the knowledge must have been accessible at the time when the product in question
was put into circulation.

Question 36

limitation period

Answer 36

Although all the other ingredients of a successful action may be present, a claim under the Act will nonetheless fail if it is not brought in time. Section 7(1) provides that a limitation period of three years is to apply to proceedings for the recovery of damages and the limitation period begins to run from the date on which the 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.

S.7(2) a
Claims extinguish after 10 years being in circulation.