1 Liability Systems
1.1 What systems of product liability are available (i.e. liability in respect of damage to persons or property resulting from the supply of products found to be defective or faulty)? Is liability fault-based, or strict, or both? Does contractual liability play any role? Can liability be imposed for breach of statutory obligations, e.g. consumer fraud statutes?
In Ireland, liability for defective products falls under four main headings:
Statute. Tort. Contract. Criminal. Statute
The principal product liability statute in Ireland is the Liability for Defective Products Act 1991 ("the 1991 Act"), which was enacted to implement EC Directive 85/374. This Act supplements, rather than replaces, the pre-existing remedies in tort and contract (see below). S.2(1) of the Act provides for strict liability, making a producer:
"liable in damages in tort for damage caused wholly or partly by a defect in his product".
It is worth noting that the 1991 Act covers only dangerous, defective products. Products which are safe, but shoddy, do not fall within its scope.
Manufacturers, repairers, installers, suppliers and others may be sued in tort for reasonably foreseeable damage caused to those to whom they owe a duty of care. As opposed to liability under the Liability for Defective Products Act 1991, liability in tort is fault-based.
For an action to lie in tort, there must be:
a duty of care owed by the producer or manufacturer of the product; a breach of that duty of care; and a causal relationship between the breach and the damage caused to the user of the product. Unlike under the 1991 Act, a plaintiff suing in tort may, in certain circumstances, succeed in a negligence action for non-dangerous defects.
Contracts for the sale of goods are covered in Ireland by the Sale of Goods Act 1893 ("the 1893 Act") and the Sale of Goods and Supply of Services Act 1980 ("the 1980 Act"). S.10 of the 1980 Act operates to add an implied condition to contracts for the sale of goods, that the goods are of "merchantable quality" where a seller sells them in the course of business. This means that the goods must be:
"fit for the purpose or purposes for which goods of that kind are commonly bought and durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all other relevant circumstances."
Contractual liability under the 1980 Act is strict. It must be borne in mind, however, that the principle of privity of contract applies, which often makes it difficult for an injured party to sue the manufacturer of a product in contract, since his contract is likely to be with the retailer of the product.
The principal legislation imposing criminal liability in the area of product liability is the European Communities (General Product Safety) Regulations 2004, as amended, ("the 2004 Regulations") which implemented EC Directive 2001/95. These Regulations make it an offence to place unsafe products on the market and specify the duties of producers and distributors in this regard.
Under the 2004 Regulations the Competition and Consumer Protection Commission is given the authority to ensure that only safe products are placed on the market. There is also a duty on producers and distributors to inform the Competition and Consumer Protection Commission where they know, or ought to know, that a product which has been placed on the market by them is incompatible with safety requirements. The Competition and Consumer Protection Commission has also been given the power to order a product recall, as set out in question 1.4 below.
In 2005, the Law Reform Commission published a report on Corporate Killing which proposed an offence of corporate manslaughter and an offence of grossly negligent management causing death. The Corporate Manslaughter Bill was published in December 2011, but has yet to be formally introduced into law.
Criminal liability is fault-based and must be proven beyond reasonable doubt.
1.2 Does the state operate any schemes of compensation for particular products?
This has been known to happen in Ireland in circumstances where some organ of the State may have a liability. The National Treasury Management Agency (the "NTMA") manages personal injury and property damage claims against the State. When performing these functions, the NTMA is known as the State Claims Agency (the "SCA"). Whilst this particular case was excluded from the SCA's remit, the most notable instance was the Hepatitis C Compensation Tribunal, which was set up in 1997 to compensate women who had become infected with Hepatitis C having been transfused with infected blood during pregnancy. A scheme was also set up to compensate haemophiliac plaintiffs of contaminated blood products. Such schemes are ad hoc, rather than statutorily required. The SCA issued a report in 2010 recommending that the compensation scheme providing for Irish Thalidomide survivors' compensation be revisited in order to place Ireland on a similar footing...