Product Liability
Cases
Donoghue v Stevenson
House of Lords [1932] All ER Rep 1
LORD ATKIN: . . .
The sole question for determination in this case is legal: Do the averments made by the pursuer in her pleading, if true, disclose a cause of action? I need not re-state the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. I do not think a more important problem has occupied your Lordships in your judicial capacity, important both because of its bearing on public health and because of the practical test which it applies to the system of law under which it arises. The case has to be determined in accordance with Scots law, but it has been a matter of agreement between the experienced counsel who argued this case, and it appears to be the basis of the judgments of the learned judges of the Court of Session, that for the purposes of determining this problem the law of Scotland and the law of England are the same. I speak
with little authority on this point, but my own research, such as it is, satisfies me that the principles of the law of Scotland on such a question as the present are identical with those of English law, and I discuss the issue on that footing. The law of both countries appears to be that in order to support an action for damages for negligence the complainant has to show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury. In the present case we are not concerned with the breach of the duty; if a duty exists, that would be a question of fact which is sufficiently averred and for the present purposes must be assumed. We are solely concerned with the question whether as a matter of law in the circumstances alleged the defender owed any duty to the pursuer to take care.
It is remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty. The courts are concerned with the particular relations which come before them in actual litigation, and it is sufficient to say whether the duty exists in those circumstances. The result is that the courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at any time whether the law recognises a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. To exist’ a complete logical
definition of the general principle is probably to go beyond the function of the judge, for, the more general the definition, the more likely it is to omit essentials or introduce non-essentials. The attempt was made by Lord Esher in Heaven v Pender2 . . . As framed it was demonstrably too wide, though it appears to me, if properly limited, to be capable of affording a valuable practical guide.
At present I content myself with pointing out that in English law there must be and is some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of `culpa’, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law: You must not injure your neighbour, and the lawyers’ question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. This appears to me to be the doctrine of Heaven v Pender2 as laid down by Lord Esher when it is limited by the notion of proximity introduced by Lord Esher himself and A. L. Smith LJ in Le Lievre v Gould.3 Lord Esher MR says ([1893] 1 QB at p. 497):
`That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.’
So A. L. Smith LJ says ([1893] 1 QB at p. 504):
`The decision of Heaven v Pender2 was founded upon the principle that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken damage might be done by the one to the other.’
I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act. That this is the sense in which nearness or `proximity’ was intended by Lord Esher is obvious from his own illustration in Heaven v Pender2 (11 QBD at p. 510) of the application of his doctrine to the sale of goods.
`This [i.e. the rule he has just formulated] includes the case of goods, & c., supplied to be used immediately by a particular person or persons, or one of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to its
condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used, or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property.’
I draw particular attention to the fact that Lord Esher emphasises the necessity of goods having to be ‘used immediately’ and ‘used at once before a reasonable opportunity of inspection’. This is obviously to exclude the possibility of goods having their condition altered by lapse of time, and to call attention to the proximate relationship, which may be too remote where inspection even by the person using, certainly by an intermediate person, may reasonably be interposed. With this necessary qualification of proximate relationship, as explained in Le Lievre v Gould,’ I think the judgment of Lord Esher expresses the law of England. Without the qualification, I think that the majority of the court in Heaven v Pender2 was justified in thinking that the principle was expressed in too general terms. There will, no doubt, arise cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises but in the class of case now before the court I cannot conceive any difficulty to arise. A manufacturer puts up an article of food in a container which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer. Negligently in the course of preparation he allows the
contents to be mixed with poison. It is said that the law of England and Scotland is that the poisoned consumer has no remedy against the negligent manufacturer. If this were the result of the authorities, I should consider the result a grave defect in the law and so contrary to principle that I should hesitate long before following any decision to that effect which had not the authority of this House . . . There are other instances than of articles of food and drink where goods are sold intended to be used immediately by the consumer, such as many forms of goods sold for cleaning purposes, when the same liability must exist. The doctrine supported by the decision below would not only deny a remedy to the consumer who was injured by consuming bottled beer or chocolates poisoned by the negligence of the manufacturer, but also to the user of what should be a harmless proprietary medicine, an ointment, a soap, a cleaning fluid or cleaning powder. I confine myself to articles of common household use, where everyone, including the manufacturer, knows that the articles will be used by persons other than the actual ultimate purchaser—namely, by members of his family and his servants, and, in some cases, his guests. I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilised society and the ordinary claims which it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.
It will be found, I think, on examination, that there is no case in which the circumstances have been such as I have just suggested where the liability has been negatived. There are numerous cases where the relations were much more remote where the duty has been held not to exist. There are also dicta in such cases which go further than was necessary for the determination of the particular issues, which have caused the difficulty experienced by the courts below. I venture to say that in the branch of the law which deals with civil wrongs, dependent in England, at any rate, entirely upon
the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in the wider survey and the inherent adaptability of English law be unduly restricted. For this reason it is very necessary, in considering reported cases in the law of torts, that the actual decision alone should carry authority, proper weight, of course, being given to the dicta of the judges . . .
I do not find it necessary to discuss at length the cases dealing with duties where a thing is dangerous, or, in the narrower category, belongs to a class of things which are dangerous in themselves. I regard the distinction as an unnatural one so far as it is used to serve as a logical differentiation by which to distinguish the existence or non-existence of a legal right. In this respect I agree with what was said by Scrutton LJ in Hodge & Sons v Anglo-American Oil Cos (12 Ll L Rep at p. 187), a case which was ultimately decided on a question of fact:
`Personally, I do not understand the difference between a thing dangerous in itself as poison and a thing not dangerous as a class, but by negligent construction dangerous as a particular thing. The latter, if anything, seems the more dangerous of the two; it is a wolf in sheep’s clothing instead of an obvious wolf.’
The nature of the thing may very well call for different degrees of care, and the person dealing with it may well contemplate persons as being within the sphere of his duty to take care who would not be sufficiently proximate with less dangerous goods, so that not only the degree of care but the range of persons to whom a duty is owed may be extended. But they all illustrate the general principle .
proposition that by Scots and English law alike a manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.
It is a proposition that I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense. I think that this appeal should be allowed.
LORD MACMILLAN: . . .
The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. What then are the circumstances which give rise to this duty to take care? In the daily contacts of social and business life human beings are thrown into or place themselves in an infinite variety of relationships with their fellows, and the law can refer only to the standards of the reasonable man in order to determine whether any particular relationship gives rise to a duty to take care as between those who stand in that relationship to each other. The grounds of action may be as various and manifold as human errancy, and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The
categories of negligence are never closed. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Where there is room for diversity of view is in determining what circumstances will establish such a relationship between the parties as to give rise on the one side to a duty to take care and on the other side to a right to have care taken.
To descend from these generalities to the circumstances of the present case I do not think that any reasonable man or any twelve reasonable men would hesitate to hold that if the appellant establishes her allegations the respondent has exhibited carelessness in the conduct of his business. For a manufacturer of aerated water to store his empty bottles in a place where snails can get access to them and to fill his bottles without taking any adequate precautions by inspection or otherwise to ensure that they contain no deleterious foreign matter may reasonably be characterised as carelessness without applying too exacting a standard. But, as I have pointed out, it is not enough to prove the respondent to be careless in his process of manufacture. The question is: Does he owe a duty to take care, and to whom does he owe that duty? I have no hesitation in affirming that a person who for gain engages in the business of manufacturing articles of food and drink intended for consumption by members of the public in the form in which he issues them is under a duty to take care in the manufacture of these articles. That duty, in my opinion, he owes to those whom he intends to consume his products. He manufactures his commodities for human consumption; he intends and contemplates that they shall be consumed. By reason of that very fact he places himself in a relationship with all the potential consumers of his commodities, and that relationship, which he assumes and desires for his own ends, imposes upon him a duty to
take care to avoid injuring them. He owes them a duty not to convert by his own carelessness an article which he issues to them as wholesome and innocent into an article which is dangerous to life and health.
. . . It must always be a question of circumstances whether the carelessness amounts to negligence and whether the injury is not too remote from the carelessness. I can readily conceive that where a manufacturer has parted with his product and it has passed into other hands it may well be exposed to vicissitudes which may render it defective or noxious and for which the manufacturer could not in any view be held to be to blame. It may be a good general rule to regard responsibility as ceasing when control ceases. So also where between the manufacturer and the user there is interposed a party who has the means and opportunity of examining the manufacturer’s product before he reissues it to the actual user. But where, as in the present case, the article of consumption is so prepared as to be intended to reach the consumer in the condition in which it leaves the manufacturer and the manufacturer takes steps to ensure this by sealing or otherwise closing the container, so that the contents cannot be tampered with, I regard his control as remaining effective until the article reaches the consumer and the container is opened by him. The intervention of any exterior agency is intended to be excluded, and was in fact in the present case excluded..
Kirby v. Burke and Holloway.
Gavan Duffy J.
[1944] IR 207
GAVAN DUFFY J.
19. April
This appeal from the Circuit Court turns on a point of law of exceptional public importance, unquestionably fit for the decision of the final tribunal, but neither party has asked me to state a case for the Supreme Court and there is no other right of appeal.
In the Circuit Court the plaintiffs, a father and three little children, recovered damages in tort against the defendant for his negligence in manufacturing and issuing for sale a pot of jam unfit for human food, bought by the housewife for the family, and eaten by the plaintiffs to the sad mischief of their internal economy.
On 6th May, 1942, Mrs. Josephine Kirby, finding butter to be unobtainable, bought for her family from a grocer a pot of rhubarb and ginger jam; the pot was wrapped in cellophane of amber hue, and the jam had a cardboard cover and under the cover, immediately over the jam, a piece of waxed paper. This was the sort of jam known to the trade as “slip” jam, from a slip of paper affixed to the pot, designating the fruit; the main attraction of slip jam seems to have been that it passed with an innocent public as home-made; and it bore no tell-tale label with the maker’s name.
Mrs. Kirby brought the pot home, opened it forthwith and spread the jam on slices of bread for her husband’s lunch; shortly afterwards she gave a similar luncheon to three of her young children, who had the like meal again for their supper. Mr. Gerald Kirby, the husband, suffered that afternoon and subsequently from an attack of gastro-enteritis, and that night the children had very severe attacks of the same malady with its unpleasant symptoms, which persisted; the eldest boy, Gabriel, aged 9 years, recovered very slowly. Mrs. Kirby herself had a toothache and took no jam, and she gave none to her baby daughter; neither she nor the baby fell ill.
I am satisfied that the members of the family who suffered did so as the direct result of eating that jam, and that “war bread,” though laxative, would not have induced the same symptoms. I am satisfied that the jam was unwholesome, when seen by Dr. Masterson next day. I am satisfied that the evidence points strongly to the conclusion that the jam was in the same condition when Mrs. Kirby bought it from the grocer. But she had no reason whatever to treat the product as suspect.
I find that the pot of jam came from the defendant, Holloway, through two intermediate grocers, one of whom had kept it for some six months; and, though neither of these reluctant gentlemen was an impressive witness, I do not on the evidence see any reason to believe that there had been any tampering with the jam pot after it left the defendant’s factory.
Professor Bayley Butler, with whose views generally Dr. John Magrath, the pathologist, agreed,kirbygave learned evidence for the plaintiffs. He knew Mrs. Kirby’s story and he examined the jam; while he could not, as a scientist, be certain of the genesis of the contamination whereof he saw symptoms in the jam, he reached the conclusion that some species of fly, carrying bacteria, must have made its way into the jam pot at the factory, probably while the jam was cooling or before its cardboard cap was affixed; that seemed to me a probable theory, unless it should be rebutted or countered by evidence for the defendant. The plaintiffs could not be expected in the circumstances to do more than put forward a probable case through witnesses of authority, and it was not to be expected that any expert witness would find himself in a position to trace the infection to its origin beyond doubt. (Cp. the judgment of Lord Greene M.R. in Dawson v. Murex, Ltd. ) (1). In my opinion, the initial burden of proof was discharged by the plaintiffs, and it remained for the defendant, with his own special knowledge of the conditions under which his jam was made, to displace thatprimá facie case, and to call any expert evidence which might undo it.
The two distinguished men of science called for the defendant gave their opinions in detail on the probabilities against the plaintiffs, but they were not able to exclude the possibility that the theory for the plaintiffs corresponded with the actual facts; the suggestion that the jam may have become infected after Mrs. Kirby opened the pot is practically excluded by the size of the larvae found in the jam by the plaintiffs’ doctor on the 7th of May. On the scientific aspect of the case, I think that the honours are clearly with the plaintiffs’ witnesses; no adequate counter-theory was opposed to them.
It still remained to be seen whether the defendant could prove that his jam-making process was unexceptionable and thus put the plaintiffs’ theory out of Court; and, as in Daniels v. White & Sons, Ltd. (1) a fool-proof process, established by the defendant lemonade-makers, carried the day, the defendant here could reasonably expect to win this action on establishing a fly-proof procedure after his jam is made; but the actual evidence fell decidedly short of proving any effort to attain so high a standard.
Two, and only two, witnesses were called from the factory, the sole owner, Mr. James J. Holloway, and a Miss Brady. The evidence was that Mr. Holloway himself supervised the whole process of jam-making, while Miss Brady was in immediate control of the more important operations; these consisted, where rhubarb was concerned, of slicing, sieving and steaming first, and then of boiling and cooling, and of affixing the waxed paper to the jam; there followed the stacking of the pots; the subsequent packing was under its own charge-hand. There is no State control of jam-making as such, but a factory inspector calls once or twice a year. Mr. Holloway has had thirty years’ experience as a jam-maker in Dublin; I do not know if he has other qualifications. Miss Brady seems to be a very busy lady and she holds a highly responsible post; but she is called a charge-hand; she has had fourteen years’ experience and her pay, apart from overtime, amounts to £2 17s. 6d. a week.
Mr. Holloway says that three boiling pans are kept going together in one room, a room with good light from a glass roof and an electric fan to clear away steam. In October, 1941, when the jam in question was made, Mr. Holloway was, he states, making 7,000 lbs. of jam per diem and the factory was working overtime. After the jam is boiled, it is emptied with buckets into a copper cooling pan and then, almost immediately, while still quite hot, filled into jam pots. The boiling and cooling is done in one room, and next to that room is the stacking room, where the pots are stacked in layers, with ply-wood between them, for two or three days, (three or four days, he said later), with the wax paper on top; there is no special supervisor here. Then the jam pots go to the packing room, where the cardboard top is affixed and the cellophane placed round the pots. The packing girl has to see that the caps are properly adjusted and that the pots going out are clean. The rooms and utensils are washed and kept clean. Mr. Holloway says that he had some thirty-five employees at the material time.
I have omitted from this summary account of the process the evidence as to the covering of the jam with waxed paper, because that evidence calls for separate examination. Here Mr. Holloway and Miss Brady differed in material particulars. Mr. Holloway, the general supervisor, says that, when the jam pots have been filled, they are then run to the stacking room and the wax caps are put on immediately and the pots are then stacked. He states that two girls are employed on the wax paper and one on stacking. There are in the stacking room two windows, kept open in summer and closed in winter; they would be closed in October.
Miss Brady says that experienced hands are necessary and that all her girls have been employed for many years; she has thirteen girls under her. Two girls are employed all day on the capping and stacking; here possibly she was speaking of some different period from her employer.”The wax capping,” she goes on, “is generally done as soon as the jam is filled; it’s part of my work.” Then, in cross-examination, she says that she was told of Mrs. Kirby’s complaint, the first of its kind; she does not think she would be responsible, if there were such a complaint; Mr. Holloway always supervises after her, to see that everything is right; he himself boils when she is on holiday. “The pots are nearly always capped when filled out; sometimes they are not, a matter of a few minutes; sometimes they would be moved into the stacking room; it’s nearly always done in the room where the cooling is done; the cooling is a matter of a minute or two; very rarely the exposed trays are taken into the stacking room; the girl nearly always does it at the cooling table; the jam is capped immediately; a tray might be missed and taken into the stacking room uncapped, but it does not often happen, a few times during the day; it very seldom happens.” And then:”I’ve no need to go into the capping room.” It was, of course, not suggested that the proprietor himself checks the wax capping of every tray-load of pots done in the stacking room; the universal supervisor could not, if he would.
Thus there is no supervision at all, on any occasion when the wax cap is put on in the stacking room. A tired girl in a rush period may put on the cap badly; then a fly will have plenty of time to get in, after the jam has cooled. I do not know what precautions the packing girl takes afterwards, if any, on finding a wax cap loose. Though complaints be very rare, this was no fly-proof process, and I find that reasonable diligence was not used to ensure the continued purity of the jam, a most important matter, after the boiling was complete. Too much was taken on trust. Mr. Holloway received the impugned jam pot from one of the intermediary grocers on 8th May, 1942, and was told by telephone of the complaint; he admits that the jam had not the normal glitter and appeared to have fermented; Mrs. Kirby and her doctor said that they saw maggots in it, but he could discern none. He says he just put the jam on a shelf; he did not show the pot to Miss Brady; he did not probe it; he did not cause any portion of the jam to be analysed. A day or two later Mrs. Kirby called to recover her pot; he offered her another, which she refused; she says that he then kept her waiting for some time and that, when eventually he returned her pot, some of the jam seemed to have been replaced with fresh jam and that she told him so, but he said the jam was exactly the same. He denies this account of her protest and his reply, and says that he gave her back the pot as he received it and without any delay. Professor Bayley Butler, to whom the jam was then submitted for analysis, found the top layer brighter in colour than the rest, which had numerous bubbles, suggesting fermentation; the top layer was free from bubbles. I accept Mrs. Kirby’s evidence on this matter. I pass over other discrepancies between her evidence and Mr. Holloway’s. His failure to have a serious analysis made was a bad error of judgment.
I have now to consider whether the law sustains the claim of the plaintiffs to make the manufacturer liable for the unpleasant consequences to them of eating his jam. The defendant manufactures a common article of food, jam, made from fruit of the particular season; he then distributes it for sale by retail grocers to members of the public; he intends it to be sold as food for human consumption and bought as food for human consumption. Before sending it out he pots the jam and places waxed paper over it, closes the pot with a cover and packs it in a coloured cellophane wrapper, with the result that the jam, when sold over the counter, will be taken to be (as it is meant to be) in the condition in which it left the factory, and that the purchaser will have no reasonable opportunity to examine the contents for any visible defects; and a manufacturer must know, as a matter of ordinary experience, that a housewife, the probable purchaser, does not usually, on opening the pot at home, begin by scrutinising the contents for signs of corruption; why should she?
A particular pot of jam turns out to be unwholesome, when bought, and injurious to the consumers, and the question at once arises on what principle is the alleged liability of the maker, who intended no injury and made no contract with the consumers, to be determined? The inquiry involves the ascertainment of the foundation, upon the authorities, of liability for tort at common law.
In 1869, an Irish Court, following English decisions, held on demurrer that, in the absence of fraudulent misrepresentation, the law could give no redress against the manufacturers to a man (the purchaser’s servant) injured by the explosion of a boiler in a steam engine, upon an allegation that the boiler was unsafe by reason of negligence in its construction: Corry v. Lucas (1). The confusion and conflict in later cases in England left the basis of liability in tort at common law so uncertain that at the time of the Treaty nobody could find in case law any sure guide to the actual legal position, and I have no Irish decision to guide me.
I am thus thrown back upon first principles in the endeavour to ascertain where the line is drawn at common law between conduct resulting in unintended hurt which entails liability for damage, and conduct resulting in unintended hurt which entails no liability.
In the quandary produced by the baffling inconsistencies among the pre-Treaty judicial pronouncements, I turn from the Courts to one of the outstanding juristic studies of the nineteenth century, “The Common Law” by Oliver Wendell Holmes, afterwards Mr. Justice Holmes of the Supreme Court of the United States. The work was published in London in 1887. The law which I apply to this case is taken from his penetrating Lectures III and IV on torts and the theory of torts.
That master of the common law shows that the foundation of liability at common law for tort is blameworthiness as determined by the existing average standards of the community; a man fails at his peril to conform to those standards. Therefore, while loss from accident generally lies where it falls, a defendant cannot plead accident if, treated as a man of ordinary intelligence and foresight, he ought to have foreseen the danger which caused injury to his plaintiff.
Applying that norm to the facts, I have to inquire whether a man in the position of the defendant, making jam for the public to eat, is bound, according to the standards of conduct prevailing among us, to take specific precautions against the danger, to the hurt of consumers, of infection to his jam from
external causes before it finally leaves his factory; or, more exactly, though he may not have anticipated the precise injury that ensued to the plaintiffs from infection, was he bound, in conformity with those standards, to safeguard his jam from access by flies, as notoriously ubiquitous as they are notoriously dirty, during the interval between the moment when the jam is poured into a jam pot after boiling and the moment, three or four days later, when the jam pot is finally enveloped for sale and sent out? I answer this question, as I believe a jury of practical citizens would answer it, in the affirmative, because our public opinion undoubtedly requires of a jam manufacturer that he shall take care to keep flies out of his jam. Any novice would foresee that a fly might get in, given the chance, and I have already found as facts that the defendant failed to take adequate precautions and that the buyer was in no way at fault.
On the facts of the case now before me, there is no question of remoteness of damage. The test, as Holmes J. puts it is whether the result actually contemplated was near enough to the remoter result complained of to throw the peril of that result upon the actor. The plaintiffs are therefore entitled to succeed.
The much controverted “Case of the Snail in the Bottle,”while leaving subsidiary questions open, has settled the principle of liability on a similar issue finally against the manufacturer in Great Britain. But the House of Lords established that memorable conclusion only twelve years ago in Donoghue v. Stevenson (1), by a majority of three Law Lords to two, “a Celtic majority,” as an unconvinced critic ruefully observed, against an English minority. Where lawyers so learned disagreed, an Irish Judge could not assume, as I was invited to assume, as a matter of course, that the view which prevailed must of necessity be the true view of the common law in Ireland. One voice in the House of Lords would have turned the scale; and it is not arguable that blameworthiness according to the actual standards of our people depends upon the casting vote in a tribunal exercising no jurisdiction over them. Hence my recourse to the late Mr. Justice Holmes. His classic analysis supports the principle of Lord Atkin and the majority. And to that principle I humbly subscribe.
As to damages, this appeal is a re-hearing, so that I must exercise my own judgment on the quantum to award. I shall affirm the decree of the Circuit Court with variations. I award to Mr. Gerald Kirby, the father of the family, the
sum of £27 7s. 0d., to include the fees of £7 7s. 0d. payable to the doctor; Mr. Kirby was the breadwinner for the family. I award to Gabriel Kirby, an infant, the sum of £20; I award to Winifred Kirby, an infant, the sum of £12; I award to Noel Kirby, an infant, the sum of £12. I shall follow the order of the learned Circuit Court Judge in every respect as to the payment into Court and investment of the moneys payable to the three infants.
The order for costs made in the Circuit Court will stand, with the substitution of £71 7s. 0d. for damages instead of £87 7s. 0d. The plaintiffs will have their costs of the appeal, to be taxed and ascertained as one set of costs on the basis of a judgment for £71 7s. 0d., and the same witnesses’ expenses as in the Circuit Court, with an additional sum of £3 3s. 0d. for Professor Bayley Butler and an allowance of £3 3s. 0d. for Dr. Magrath. I reserve for further argument the question of the jurisdiction to allow refresher fees.
Number 28 of 1991
Liability for Defective Products Act 1991
REVISED
Updated to 28 May 2019
This Revised Act is an administrative consolidation of the Liability for Defective Products Act 1991. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.
All Acts up to and including Greyhound Racing Act 2019 (15/2019), enacted 28 May 2019, and all statutory instruments up to and including European Communities (Sheep Identification) (Amendment) Regulations 2019 (S.I. No. 243 of 2019), made 28 May 2019, were considered in the preparation of this Revised Act.
Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to
REVISED
Updated to 28 May 2019
AN ACT TO ENABLE EFFECT TO BE GIVEN TO THE PROVISIONS OF DIRECTIVE NO. 85/374/EEC OF 25 JULY 1985 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES ON THE APPROXIMATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS OF THE MEMBER STATES OF THE EUROPEAN COMMUNITIES CONCERNING LIABILITY FOR DEFECTIVE PRODUCTS. [4th December, 1991]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Annotations
Editorial Notes:
E1
Functions under Act transferred to Competition and Consumer Protection Commission (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), ss. 2, 10 and 39, S.I. No. 366 of 2014.
E2
Previous affecting provision: enforcement of Act provided for (1.05.2007) by Consumer Protection Act 2007 (19/2007), ss. 2, 8, 37 and sch. 1 pt. 1, S.I. No. 178 of 2007; functions transferred as per E-note above.
Interpretation.
1.—(1) In this Act, except where the context otherwise requires—
F1[“the Council Directive” means Council Directive No. 85/374/EEC of 25 July 1985(1) (as amended by Directive No. 1999/34/EC of the European Parliament and of the Council of 10 May 1999(2)) the texts of which in the English language are set out for convenience of reference in the Schedule to this Act;]
“damage” means—
(a) death or personal injury, or
(b) loss of, damage to, or destruction of, any item of property other than the defective product itself:
Provided that the item of property—
(i) is of a type ordinarily intended for private use or consumption, and
(ii) was used by the injured person mainly for his own private use or consumption;
“initial processing” means, in relation to primary agricultural products, any processing of an industrial nature of those products which could cause a defect therein;
“injured person” means a person who has suffered damage caused wholly or partly by a defect in a product or, if he has died, his personal representative (within the meaning of section 3 of the Succession Act, 1965) or dependants (within the meaning of section 47 (1) of the Civil Liability Act, 1961);
“Member State” means a Member State of the European Communities;
“the Minister” means the Minister for Industry and Commerce;
“personal injury” includes any disease and any impairment of a person’s physical or mental condition;
“primary agricultural products” means the products of the soil, of stock-farming and of fisheries and game, excluding such products and game which have undergone initial processing;
“producer” shall be construed in accordance with section 2 of this Act;
F1[“product” means all movables, including primary agricultural products which have not undergone initial processing, and includes—
(a) movables even though incorporated into another product or into an immovable, whether by virtue of being a component part or raw material or otherwise, and
(b) electricity where damage is caused as a result of a failure in the process of generation of electricty,]
(2) A word or expression that is used in this Act and is also used in the Council Directive has, unless the contrary intention appears, the meaning in this Act that it has in the Council Directive.
(3) In construing a provision of this Act, a court shall give it a construction that will give effect to the Council Directive, and for this purpose a court shall have regard to the provisions of the Council Directive, including its preamble.
(4) In this Act a reference to any other enactment shall be construed as a reference to that enactment as amended by or under any other enactment, including this Act.
Annotations
Amendments:
F1
Substituted (4.12.2000) by European Communities (Liability For Defective Products) Regulations 2000 (S.I. No. 401 of 2000), reg. 2.
(1) O.J. No. L210 of 7.8.1985, p.29
(2) O.J. No. L141 of 4.6.1999, p.20, and
Liability for damage caused by defective products.
2.—(1) The producer shall be liable in damages in tort for damage caused wholly or partly by a defect in his product.
(2) In this Act, “producer” means—
(a) the manufacturer or producer of a finished product, or
(b) the manufacturer or producer of any raw material or the manufacturer or producer of a component part of a product, or
(c) 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, or
(d) any person who, by putting his name, trade mark 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, or
(e) any person who has imported the product into a Member State from a place outside the European Communities inorder, in the course of any business of his, to supply it to another, or
(f) any person who is liable as producer of the product pursuant to subsection (3) of this section.
(3) Without prejudice to subsection (1) of this section, where damage is caused wholly or partly by a defect in a product, any person who supplied the product (whether to the person who suffered the damage, to the producer of any product in which the product is comprised or to any other person) shall, where the producer of the product cannot by taking reasonable steps be identified, be liable, as the producer, for the damage if—
(a) the injured person requests the supplier to identify any person (whether still in existence or not) to whom paragraph (a), (b), (c), (d) or (e) of subsection (2) of this section applies in relation to the product,
(b) that request is made within a reasonable time after the damage occurs and at a time when it is not reasonably practicable for the injured person to identify all those persons, and
(c) the supplier fails, within a reasonable time after receiving the request, either to comply with the request or to identify the person who supplied the product to him.
Limitation of damages.
3.—(1) Where, but for this section, damages not exceeding £350 in respect of loss of or damage to, or destruction of, any item of property other than the defective product itself would fall to be awarded by virtue of this Act, no damages shall be awarded, and where, but for this section, damages exceeding that amount would fall to be awarded, only that excess shall be awarded.
(2) The Minister may by order vary with effect from a date specified in the order, being a date subsequent to the making of the order, the amount specified in subsection (1) of this section but such variation shall not apply to proceedings pending in any court at that date.
(3) The Minister may by order amend or revoke an order made under this section.
Proof of damage and defect.
4.—The onus shall be on the injured person concerned to prove the damage, the defect and the causal relationship between the defect and damage.
Defective product.
5.—(1) For the purposes of this Act 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.
(2) A product shall not be considered defective for the sole reason that a better product is subsequently put into circulation.
Defences.
6.—A producer shall not be liable under this Act if he proves—
(a) that he did not put the product into circulation, or
(b) that, having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that that defect came into being afterwards, or
(c) that the product was neither manufactured by him for sale or any form of distribution for an economic purpose nor manufactured or distributed by him in the course of his business, or
(d) that the defect concerned is due to compliance by the product with any requirement imposed by or under any enactment or any requirement of the law of the European Communities, or
(e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered, or
(f) in the case of the manufacturer of a component or the producer of a raw material, that the defect is attributable entirely to the design of the product in which the component has been fitted or the raw material has been incorporated or to the instructions given by the manufacturer of the product.
Limitation of actions.
7.—(1) An action for the recovery of damages under this Act shall not be brought after the expiration of 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.
(2) (a) A right of action under this Act shall be extinguished upon the expiration of the period of ten years from the date on which the producer put into circulation the actual product which caused the damage unless the injured person has in the meantime instituted proceedings against the producer.
(b) Paragraph (a) of this subsection shall have effect whether or not the right of action accrued or time began to run during the period referred to in subsection (1) of this section.
(3) Sections 9 and 48 (6) of the Civil Liability Act, 1961, shall not apply to an action for the recovery of damages under this Act.
(4) The Statutes of Limitation, 1957 and 1991, shall apply to an action under this Act subject to the provisions of this section.
(5) For the purposes of subsection (4)—
(a) subsection (1) of this section shall be deemed to be a provision of the Statute of Limitations (Amendment) Act, 1991, of the kind referred to in section 2 (1) of that Act,
(b) “injury” where it occurs in that Act except in section 2 (1) (b) thereof includes damage to property, and “person injured” and, “injured” shall be construed accordingly, and
(c) the reference in subsection (1) of this section to the date when the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer shall be construed in accordancewith section 2 of that Act, but nothing in this paragraph shall prejudice the application of section 1 (3) of this Act.
Joint and several liability.
8.—Where two or more persons are liable by virtue of this Act for the same damage, they shall be liable jointly and severally as concurrent wrongdoers within the meaning of Part III of the Civil Liability Act, 1961.
Reduction of liability.
9.—(1) Without prejudice to Part III of the Civil Liability Act, 1961 concerning the right of contribution, the liability of the producer shall not be reduced when damage is caused both by a defect in a product and by the act or omission of a third party.
(2) Where any damage is caused partly by a defect in a product and partly by the fault of the injured person or of any person for whom the injured person is responsible, the provisions of the Civil Liability Act, 1961, concerning contributory negligence, shall have effect as if the defect were due to the fault of every person liable by virtue of this Act for the damage caused by the defect.
Annotations
Modifications etc. (not altering text):
C1
Application of Act restricted (1.04.2009) by European Communities (Environmental Liability) Regulations 2008 (S.I. No. 547 of 2008), reg. 18(2).
Joint and several liability
18. …
(2) Nothing in these Regulations shall be taken to affect the operation of—
(a) section 9(1) of the Liability for Defective Products Act 1991 (No. 28 of 1991), where the imminent threat of environmental damage, or environmental damage, as the case may be is caused both by a defect in a product and by the act or omission of a third party, or
(b) section 9(2) of the Liability for Defective Products Act 1991 where the imminent threat of environmental damage, or environmental damage, as the case may be, is caused partly by a defect in a product and partly by the fault of an injured person (within the meaning of that Act) or of any person for whom the injured person is responsible.
Prohibition on exclusion from liability.
10.—The liability of a producer arising by virtue of this Act to an injured person shall not be limited or excluded by any term of contract, by any notice or by any other provision.
Other rights of action not precluded.
11.—This Act shall not affect any rights which an injured person may have under any enactment or under any rule of law.
Application of Courts Act, 1988.
12.—Section 1 of the Courts Act, 1988, shall apply to an action in the High Court claiming damages under this Act or a question of fact or an issue arising in such an action as if such damages were mentioned in subsection (1) (a) of that section.
Application of this Act.
13.—This Act shall not apply to any product put into circulation within the territory of any Member State before the commencement of this Act.
Short title and commencement.
14.—(1) This Act may be cited as the Liability for Defective Products Act, 1991.
(2) This Act shall come into operation on such day as the Minister may appoint by order.
Annotations
Editorial Notes:
E3
Power pursuant to section exercised (16.12.1991) by Liability for Defective Products Act (Commencement Order) 1991 (S.I. No. 316 of 1991).
2. The Liability for Defective Products Act, 1991 (No. 28 of 1991) shall come into operation on the 16th day of December, 1991.
SCHEDULE
7.8.85 Official Journal of the European Communities No. L 210/29
Section 1.
COUNCIL DIRECTIVE of 25 July 1985
on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products
(85/374/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 100 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social Committee(3),
Whereas approximation of the laws of the Member States concerning the liability of the producer for damage caused by the defectiveness of his products is necessary because the existing divergences may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property;
Whereas liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production;
Whereas liability without fault should apply only to movables which have been industrially produced; whereas, as a result, it is appropriate to exclude liability for agricultural products and game, except where they have undergone a processing of an industrial nature which could cause a defect in these products; whereas the liability provided for in this Directive should also apply to movables which are used in the construction of immovables or are installed in immovables;
Whereas protection of the consumer requires that all producers involved in the production process should be made liable, in so far as their finished product, component part or any raw material supplied by them was defective; whereas, for the same reason, liability should extend to importers of products into the Community and to persons who present themselves as producers by affixing their name, trade mark or other distinguishing feature or who supply a product the producer of which cannot be identified;
Whereas, in situations where several persons are liable for the same damage, the protection of the consumer requires that the injured person should be able to claim full compensation for the damage from any one of them;
Whereas, to protect the physical well-being and property of the consumer, 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;
Whereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances;
Whereas the protection of the consumer requires that the liability of the producer remains unaffected by acts or omissions of other persons having contributed to cause the damage; whereas, however, the contributory negligence of the injured person may be taken into account to reduce or disallow such liability;
Whereas the protection of the consumer requires compensation for death and personal injury as well as compensation for damage to property; whereas the latter should nevertheless be limited to goods for private use or consumption and be subject to a deduction of a lower threshold of a fixed amount in order to avoid litigation in an excessive number of cases; whereas this Directive should not prejudice compensation for pain and suffering and other non-material damages payable, where appropriate, under the law applicable to the case;
Whereas a uniform period of limitation for the bringing of action for compensation is in the interests both of the injured person and of the producer;
Whereas products age in the course of time, higher safety standards are developed and the state of science and technology progresses; whereas, therefore, it would not be reasonable to make the producer liable for an unlimited period for the defectiveness of his product; whereas, therefore, liability should expire after a reasonable length of time, without prejudice to claims pending at law;
Whereas, to achieve effective protection of consumers, no contractual derogation should be permitted as regards the liability of the producer in relation to the injured person;
Whereas under the legal systems of the Member States an injured party may have a claim for damages based on grounds of contractual liability or on grounds of non-contractual liability other than that provided for in this Directive; in so far as these provisions also serve to attain the objective of effective protection of consumers, they should remain unaffected by this Directive; whereas, in so far as effective protection of consumers in the sector of pharmaceutical products is already also attained in a Member State under a special liability system, claims based on this system should similarly remain possible;
Whereas, to the extent that liability for nuclear injury or damage is already covered in all Member States by adequate special rules, it has been possible to exclude damage of this type from the scope of this Directive;
Whereas, since the exclusion of primary agricultural products and game from the scope of this Directive may be felt, in certain Member States, in view of what is expected for the protection of consumers, to restrict unduly such protection, it should be possible for a Member State to extend liability to such products;
Whereas, for similar reasons, the possibility offered to a producer to free himself from liability if he proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of a defect to be discovered may be felt in certain Member States to restrict unduly the protection of the consumer; whereas it should therefore be possible for a Member State to maintain in its legislation or to provide by new legislation that this exonerating circumstance is not admitted; whereas, in the case of new legislation, making use of this derogation should, however, be subject to a Community stand-still procedure, in order to raise, if possible, the level of protection in a uniform manner throughout the Community;
Whereas, taking into account the legal traditions in most of the Member States, it is inappropriate to set any financial ceiling on the producer’s liability without fault; whereas, in so far as there are, however, differing traditions, it seems possible to admit that a Member State may derogate from the principle of unlimited liability by providing a limit for the total liability of the producer for damage resulting from a death or personal injury and caused by identical items with the same defect, provided that this limit is established at a level sufficiently high to guarantee adequate protection of the consumer and the correct functioning of the common market;
Whereas the harmonization resulting from this cannot be total at the present stage, but opens the way towards greater harmonization; whereas it is therefore necessary that the Council receive at regular intervals, reports from the Commission on the application of this Directive, accompanied, as the case may be, by appropriate proposals;
Whereas it is particularly important in this respect that a re-examination be carried out of those parts of the Directive relating to the derogations open to the Member States, at the expiry of a period of sufficient length to gather practical experience on the effects of these derogations on the protection of consumers and on the functioning of the common market,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The producer shall be liable for damage caused by a defect in his product.
Article 2
For the purpose of this Directive ‘product’ means all movables, with the exception of primary agricultural products and game, even though incorporated into another movable or into an immovable. ‘Primary agricultural products’ means the products of the soil, of stock-farming and of fisheries, excluding products which have undergone initial processing. ‘Product’ includes electricity.
Article 3
1. ‘Producer’ means the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer.
2. Without prejudice to the liability of the producer, any person who imports into the Community a product for sale, hire, leasing or any form of distribution in the course of his business shall be deemed to be a producer within the meaning of this Directive and shall be responsible as a producer.
3. Where the producer of the product cannot be identified, each supplier of the product shall be treated as its producer unless he informs the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the product. The same shall apply, in the case of an imported product, if thisproduct does not indicate the identity of the importer referred to in paragraph 2, even if the name of the producer is indicated.
Article 4
The injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage.
Article 5
Where, as a result of the provisions of this Directive, two or more persons are liable for the same damage, they shall be liable jointly and severally, without prejudice to the provisions of national law concerning the rights of contribution or recourse.
Article 6
1. A product is defective when it does not 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;
(c) the time when the product was put into circulation.
2. A product shall not be considered defective for the sole reason that a better product is subsequently put into circulation.
Article 7
The producer shall not be liable as a result of this Directive if he proves:
(a) that he did not put the product into circulation; or
(b) that, having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that this defect came into being afterwards; or
(c) that the product was neither manufactured by him for sale or any form of distribution for economic purpose nor manufactured or distributed by him in the course of his business; or
(d) that the defect is due to compliance of the product with mandatory regulations issued by the public authorities; or
(e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered; or
(f) in the case of a manufacturer of a component, that the defect is attributable to the design of the product in which thecomponent has been fitted or to the instructions given by the manufacturer of the product.
Article 8
1. Without prejudice to the provisions of national law concerning the right of contribution or recourse, the liability of the producer shall not be reduced when the damage is caused both by a defect in the product and by the act or omission of a third party.
2. The liability of the producer may be reduced or disallowed when, having regard to all the circumstances, the damage is caused both by a defect in the product and by the fault of the injured person or any person for whom the injured person is responsible.
Article 9
For the purpose of Article 1, ‘damage’ means:
(a) damage caused by death or by personal injuries;
(b) damage to, or destruction of, any item of property other than the defective product itself, with a lower threshold of 500 ECU, provided that the item of property:
(i) is of a type ordinarily intended for private use or consumption, and
(ii) was used by the injured person mainly for his own private use or consumption.
This Article shall be without prejudice to national provisions relating to non-material damage.
Article 10
1. Member States shall provide in their legislation that a limitation period of three years shall apply to proceedings for the recovery of damages as provided for in this Directive. The limitation period shall begin to run from the day on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.
2. The laws of Member States regulating suspension or interruption of the limitation period shall not be affected by this Directive.
Article 11
Member States shall provide in their legislation that the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a period of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer.
Article 12
The liability of the producer arising from this Directive may not,in relation to the injured person, be limited or excluded by a provision limiting his liability or exempting him from liability.
Article 13
This Directive shall not affect any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability or a special liability system existing at the moment when this Directive is notified.
Article 14
This Directive shall not apply to injury or damage arising from nuclear accidents and covered by international conventions ratified by the Member States.
Article 15
1. Each Member State may:
(a) by way of derogation from Article 2, provide in its legislation that within the meaning of Article 1 of this Directive ‘product’ also means primary agricultural products and game;
(b) by way of derogation from Article 7 (e), maintain or, subject to the procedure set out in paragraph 2 of this Article, provide in this legislation that the producer shall be liable even if he proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of a defect to be discovered.
2. A Member State wishing to introduce the measure specified in paragraph 1 (b) shall communicate the text of the proposed measure to the Commission. The Commission shall inform the other Member States thereof.
The Member State concerned shall hold the proposed measure in abeyance for nine months after the Commission is informed and provided that in the meantime the Commission has not submitted to the Council a proposal amending this Directive on the relevant matter. However, if within three months of receiving the said information, the Commission does not advise the Member State concerned that it intends submitting such a proposal to the Council, the Member State may take the proposed measure immediately.
If the Commission does submit to the Council such a proposal amending this Directive within the aforementioned nine months, the Member State concerned shall hold the proposed measure in abeyance for a further period of 18 months from the date on which the proposal is submitted.
3. Ten years after the date of notification of this Directive, the Commission shall submit to the Council a report on the effect that rulings by the courts as to the application of Article 7 (e) and of paragraph 1 (b) of this Article have on consumer protection and the functioning of the common market. In the light of this report the Council, acting on a proposal from the Commission and pursuant tothe terms of Article 100 of the Treaty, shall decide whether to repeal Article 7(e).
Article 16
1. Any Member State may provide that a producer’s total liability for damage resulting from a death or personal injury and caused by identical items with the same defect shall be limited to an amount which may not be less than 70 million ECU.
2. Ten years after the date of notification of this Directive, the Commission shall submit to the Council a report on the effect on consumer protection and the functioning of the common market of the implementation of the financial limit on liability by those Member States which have used the option provided for in paragraph 1. In the light of this report the Council, acting on a proposal from the Commission and pursuant to the terms of Article 100 of the Treaty, shall decide whether to repeal paragraph 1.
Article 17
This Directive shall not apply to products put into circulation before the date on which the provisions referred to in Article 19 enter into force.
Article 18
1. For the purposes of this Directive, the ECU shall be that defined by Regulation (EEC) No. 3180/78(1), as amended by Regulation (EEC) No. 2626/84(2). The equivalent in national currency shall initially be calculated at the rate obtaining on the date of adoption of this Directive.
2. Every five years the Council, acting on a proposal from the Commission, shall examine and, if need be, revise the amounts in this Directive, in the light of economic and monetary trends in the Community.
Article 19
1. Member States shall bring into force, not later than three years from the date of notification of this Directive, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof(3).
2. The procedure set out in Article 15 (2) shall apply from the date of notification of this Directive.
Article 20
Member States shall communicate to the Commission the texts of the main provisions of national law which they subsequently adopt in the field governed by this Directive.
Article 21
Every five years the Commission shall present a report to the Council on the application of this Directive and, if necessary, shall submit appropriate proposals to it.
Article 22
This Directive is addressed to the Member States.
Done at Brussels, 25 July, 1985.
For the Council,
The President,
J. POOS.
F2
[
DIRECTIVE 1999/34/EC
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 10 MAY 1999
amending Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95, thereof,
Having regard to the proposal from the Commission,(1)
Having regard to the opinion of the Economic and Social Committee, (2)
Acting in accordance with the procedure laid down in Article 251 of the Treaty (3)
(1) Whereas product safety and compensation for damage caused by defective products are social imperatives which must be met within the internal market; whereas the Community has responded to those requirements by means of Directive 85/374/EEC(4) and Council Directive 92/59/EEC of 29 June 1992 on general product safety(5);
(2) Whereas Directive 85/374/EEC established a fair apportionment of the risks inherent in a modern society in which there is a high degree of technicality; whereas that Directive therefore struck a reasonable balance between the interests involved, in particular the protection of consumer health, encouraging innovation and scientific and technological development, guaranteeing undistorted competition and facilitating trade under a harmonised system of civil liability; whereas that Directive has thus helped to raise awareness among traders of the issue of product safety and the importance accorded to it;
(3) Whereas the degree of harmonisation of Member States’ laws achieved by Directive 85/374/EEC is not complete in view of the derogations provided for, in particular with regard to its scope, from which unprocessed agricultural products are excluded;
(4) Whereas the Commission monitors the implementation and effects of Directive 85/374/EEC and in particular its aspects relating to consumer protection and the functioning of the internal market, which have already been the subject of a first report; whereas, in this context, the Commission is required by Article 21 of that Directive to submit a second report on its application;
(5) Whereas including primary agricultural products within the scope of Directive 85/374/EEC would help restore consumer confidence in the safety of agricultural products; whereas such a measure would meet the requirements of a high level of consumer protection;
(6) Whereas the circumstances call for Directive 85/374/EEC to be amended in order to facilitate, for the benefits of consumers, legitimate compensation for damage to health caused by defective agricultural products;
(7) Whereas this Directive has an impact on the functioning of the internal market in so far as trade in agricultural products will no longer be affected by differences between rules on producer liability;
(8) Whereas the principle of liability without fault laid down in Directive 85/374/EEC must be extended to all types of product, including agricultural products as defined by the second sentence of Article 32 of the Treaty and those listed in Annex II to the said Treaty;
(9) Whereas, in accordance with the principle of proportionality, it is necessary and appropriate in order to achieve the fundamental objectives of increased protection for all consumers and the proper functioning of the internal market to include agricultural products within the scope of Directive 85/374/EEC; whereas this Directive is limited to what is necessary to achieve the objectives pursued in accordance with the third paragraph of Article 5 of the Treaty,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Directive 85/374/EEC is hereby amended as follows:
1. Article 2 shall be replaced by the following;
“Article 2
For the purpose of this Directive, ‘product’ means all movables even if incorporated into another movable or into an immovable. ‘Product’ includes electricity”
2. In Article 15, paragraph 1 (a) shall be deleted.
Article 2
1. Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof.
They shall apply these measures as from 4 December 2000.
When the Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the text of the provisions of national law which they subsequently adopt in the field governed by this Directive.
Number 28 of 1991
LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991
REVISED
Updated to 28 May 2019
This Revised Act is an administrative consolidation of the Liability for Defective Products Act 1991. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.
All Acts up to and including Greyhound Racing Act 2019 (15/2019), enacted 28 May 2019, and all statutory instruments up to and including European Communities (Sheep Identification) (Amendment) Regulations 2019 (S.I. No. 243 of 2019), made 28 May 2019, were considered in the preparation of this Revised Act.
Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to
revisedacts@lawreform.ie.
S.I. No. 401/2000 –
European Communities (Liability For Defective Products) Regulations, 2000.
I, MARY HARNEY, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Directive 1999/34/EC of the European Parliament and of the Council of 10 May 19991 , hereby make the following Regulations:
1. (1) These Regulations may be cited as the European Communities (Liability for Defective Products) Regulations, 2000.
(2) These Regulation shall come into operation on the 4 December 2000.
2. The Liability for Defective Products Act, 1991 (No. 28 of 1991) is amended,—
(a) in section 1(1) by—
(i) the substitution for the definition of “the Council Directive” of the following—
“ ‘the Council Directive’ means Council Directive No. 85/374/EEC of 25 July 1985(1) (as amended by Directive No. 1999/34/EC of the European Parliament and of the Council of 10 May 1999(2) ) the texts of which in the English language are set out for convenience of reference in the Schedule to this Act;
(ii) the substitution for the definition of “product” of the following—
“ ‘product’ means all movables, including primary agricultural products which have not undergone initial processing, and includes—
(a) movables even though incorporated into another product or into an immovable, whether by virtue of being a component part or raw material or otherwise, and
(b) electricity where damage is caused as a result of a failure in the process of generation of electricty,” and
(b) in the Schedule by the insertion after “For the Council, The President, J. Poos.” of the following—
“DIRECTIVE 1999/34/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 10 MAY 1999
amending Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.
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