Is there a statute that governs product liability litigation?
The Liability for Defective Products Act 1991 (the 1991 Act) transposed the EU Product Liability Directive 85/374/EC into Irish law and is the primary source of product liability legislation in Ireland. The 1991 Act adds to rather than replaces the already existing remedies available in both tort and contract and provides for strict liability in circumstances where damage is caused wholly or partly by a defect in a manufacturer’s product.
What other theories of liability are available to product liability claimants?
Traditional theories of liability are available to product liability claimants and these are described below.
Tort
The tort of negligence also applies in addition to statutory obligations and claims for defective products can therefore be brought in tort. The relevant test is whether the individual (eg, manufacturer, supplier or importer) owed a duty of care to the injured party that was breached, and this breach caused the alleged damage.
Contract
In Ireland, sales of goods are regulated by the Sale of Goods Act 1893 and the Sale of Goods and Supply of Services Act 1980; this legislation implies a contractual obligation on the seller to ensure that their products are of merchantable quality. This implied term will have been breached if the products in question are:
- not fit for the purpose or purposes for which goods of that kind are commonly bought;
- not as durable as it is reasonable to expect with regard to the description given to them, the price and all other relevant circumstances; or
- where a product can foreseeably be considered to breach the implied term that a product correspond with its description.
In addition to the Sale of Goods Acts, the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003 (the 2003 Regulations) apply to contracts for the sale of goods to consumers. The 2003 Regulations require that goods delivered under a contract of sale to the consumer must conform with that contract.
Criminal
Under the European Communities (General Product Safety) Regulations 2004 (GPSR), which implemented EC Directive 2001/95, it is an offence to place ‘unsafe’ products onto the market.
The GPSR defines a ‘producer’ as being:
- the manufacturer of the product;
- the manufacturer’s representative in the European Union (if the manufacturer is not established in the EU);
- the importer (in certain circumstances); or
- other professionals working within the supply chain of the dangerous product.
Under the legislation, distributors are also held liable if they supply or attempt to supply a dangerous product, or one that they would reasonably presume to be dangerous.
Is there a consumer protection statute that provides remedies, imposes duties or otherwise affects product liability litigants?
The following consumer protection statutes in Ireland impose duties or otherwise affect product liability litigants.
Consumer Protection Act 2007
The Consumer Protection Act 2007 established the former National Consumer Agency and the Competition Authority. These were subsumed by the Competition and Consumer Protection Commission (CCPC), which was created by the Competition and Consumer Protection Act 2014 and is responsible for product safety. It is charged with enforcing legislation aimed at protecting consumers, and its broad remit includes product safety legislation.
Sale of Goods Acts
The Sale of Goods Acts impose an implied condition into contracts for the sale of goods that the goods supplied are of merchantable quality and where a buyer expressly or by implication makes known to a seller any particular purpose for which the goods are being bought, there is an implied condition that the goods are reasonably fit for that purpose.
2003 Regulations
Under the 2003 Regulations, any lack of conformity that becomes apparent within six months from the date of delivery of the goods must, unless the contrary is proved, be presumed to have existed at the time of delivery of the goods. The seller is liable to the consumer for any lack of conformity that exists at the time the goods were delivered. If the goods do not conform, the consumer may request that the seller repairs the goods or replaces them free of charge. If either of those remedies is impossible or disproportionate, the consumer may require an appropriate reduction of the price or have the contract rescinded. The consumer is also entitled to a reduction or rescission if the seller has not completed the repair or replacement within a reasonable time or without significant inconvenience to the consumer. The consumer is not entitled to rescission if the lack of conformity is minor.
Can criminal sanctions be imposed for the sale or distribution of defective products?
Yes. Under the GPSR, criminal sanctions can be imposed for the sale or distribution of defective products. These Regulations also give the CCPC powers to ensure that only safe products are placed on the market. Distributors and producers are under an obligation to cooperate with and inform the CCPC about any unsafe products placed on the market and can be guilty of an offence if they fail to adhere to these obligations. A person found liable on conviction can be made subject to a fine not exceeding €3,000 or to a term of imprisonment not exceeding three months, or both.
At present, there is no legislation providing for an offence of corporate manslaughter in Ireland. The Corporate Manslaughter Bill introduced in 2016 followed a Law Reform Commission Report in 2005 that recommended that this new offence be created. However, this Bill has now lapsed.
Are any novel theories available or emerging for product liability claimants?
Members of the Irish parliament have introduced the Multi-Party Actions Bill, which is making its way through the legislative system. Should this bill become law, it would be the first formal basis on which plaintiffs could bring group actions for product liability, which would have a significant impact on the legal landscape in this jurisdiction.
While the Bill is still currently in the legislative procedure, its future is now uncertain given that Ireland is due to implement the EU Collective Redress Directive.
What breaches of duties or other theories can be used to establish product defect?
Statute
The 1991 Act states that a product will be considered defective if, taking into consideration all the circumstances, it does not provide the level of safety that consumers are entitled to expect, and this includes:
- presentation of the product;
- the use to which it could reasonably be expected that the product would be put; and
- the time when the product was put into circulation.
Tort
To establish tortious liability, the injured party must show that:
- there was a duty of care owed to them;
- this duty was breached; and
- as a result of the breach, damage was done to them.
Manufacturers could also be held liable if they fail to issue adequate instructions or warnings about the safety of the product, for example, in relation to risks the product poses.
Contract
The 2003 Regulations assist consumers by establishing a presumption that any lack of conformity that becomes apparent within six months of the date of delivery of the goods is deemed to have existed at the time of delivery of the goods. The burden of proof rests on the seller to prove the contrary. This presumption does not apply if it would not be a reasonable inference that the lack of conformity existed at the time of delivery by reason of the nature of the goods concerned or the nature of the lack of conformity concerned.
The Sale of Goods Acts imply a contractual obligation on the seller that the goods supplied are of ‘merchantable quality’ (ie, that they are as fit for the purpose or purposes for which goods of that kind are commonly bought and as durable as it is reasonable to expect with regard to any description applied to them, the price (if relevant) and all other relevant factors). If products are deemed as failing to meet this standard, then a seller is in breach of the implied term.
Criminal
Criminal liability is governed by the GPSR. This legislation outlines a number of offences under which producers or distributors can be prosecuted. These include placing unsafe products on the European market or supplying or attempting to supply a product that they know or should reasonably suspect to be unsafe.
By what standards may a product be deemed defective and who bears the burden of proof? May that burden be shifted to the opposing party? What is the standard of proof?
Generally, the onus in the laws of contract and tort is on the injured party to establish damage and the defect, and the causal link between both. This is also outlined in section 4 of the 1991 Act. The standard of proof in statutory, tort and contract claims is ‘on the balance of probabilities’, that is, 51 per cent or ‘more likely than not’, whereas in criminal proceedings, the standard of proof is proven ‘beyond reasonable doubt’. The 1991 Act operates on terms of strict liability; therefore negligence of the defendant is not a consideration. The majority of personal injury claims are founded on a combination of tortious, contractual and statutory bases.
The 2003 Regulations assist consumers by establishing a presumption that any lack of conformity that becomes apparent within six months of the date of delivery of the goods is deemed to have existed at the time of delivery of the goods. The burden of proof rests on the seller to prove the contrary. This presumption does not apply if it would not be a reasonable inference that the lack of conformity existed at the time of delivery by reason of the nature of the goods concerned or the nature of the lack of conformity concerned.
Who may be found liable for injuries and damages caused by defective products? Is it possible for respondents to limit or exclude their liability?
Statute
The 1991 Act lays liability firmly at the door of the ‘producer’ of the defective product. ‘Producer’ is defined 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 the 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 or her name, trademark or other distinguishing feature on the product or using his or her name or any such mark or feature in relation to the product, has held him or herself out to be the producer of the product; or
- 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, to supply it to another.
Tort
In tort, liability extends to anyone who is found to have breached a duty of care that they owed to a party who suffered damage as the result of a defective product. This could cover a number of individuals involved in the supply chain of the product.
Contract
Privity of contract in Irish law means that only those parties ‘party’ to a contract can enforce the rights and obligations under the contract. This in effect means that a seller will only be liable in contract to a buyer with whom they have contracted, and third parties have no right to enforcement of the contract.
Criminal
The GPSR make it an offence to place ‘unsafe’ products on the market. The GPSR define a ‘producer’ as being:
- the manufacturer of the product;
- the manufacturer’s representative in the European Union (if the manufacturer is not established in the EU);
- the importer (in certain circumstances); or
- other professionals working within the supply chain of the dangerous product.
Under the GPSR, distributors can also be held liable if they supply or attempt to supply a dangerous product, or one that they would reasonably presume to be dangerous.
What is the standard by which causation between defect and injury or damages must be established? Who bears the burden and may it be shifted to the opposing party?
Under both common law and the 1991 Act, the burden is on the plaintiff to prove a causal link between the physical or psychological injury or damage sustained by them and the alleged defective product.
If the plaintiff cannot prove that, ‘on the balance of probabilities’, their injury was sustained as a direct result of the defendant’s wrongdoing, they have failed in establishing causation.
What post-sale duties may be imposed on potentially responsible parties and how might liability be imposed upon their breach?
The CCPC is responsible for market surveillance and product recalls in Ireland and has the power to take all ‘reasonable measures’ to ensure the safety of products being placed on the Irish market. Failure to comply with a product recall order can result in criminal and financial sanctions and could give rise to a civil claim. The GPSR state that a product recall must be considered as a last resort, and Regulation 9(2) states that the CCPC is required to act in a manner that is proportional to the seriousness of the risk involved.
Regulations 6 and 7 of the GPSR also outline the post-sale duties and obligations of distributors and producers. The duties of producers include a duty to provide consumers with all relevant information relating to the product to enable them to assess the risks inherent in the product as well as adopting measures commensurate with the characteristics of the product that they have placed on the market, to enable them to be informed of the risks that the product might pose, or take appropriate action (if necessary) to include withdrawal from the market, recall of the product and warning consumers. Distributors’ duties include acting with due care to ensure that any product he or she supplies is a safe product and not supplying or attempting to supply a product they know is, or should reasonably presume as a result of their profession to be, dangerous.
