I move amendment No. 1:
In page 2, subsection (1), to delete line 20, and substitute the following: "(a) damage caused by death or by personal injuries, or".
I welcome the fact that in this Bill the Directive which is being implemented is given for convenience of reference in the Schedule to the Bill. This is a welcome development which I hope will be followed whenever this kind of legislation is brought before the House. All too often we have had to do tremendous research to find these documents. This precedent should be followed on all occasions.
This is a very important amendment. Something very strange has happened here. I do not know whether it is intentional. The drafting of the Bill has moved away from the wording of the Directive, although normally one is at pains to follow very exactly the wording of the Directive. The definition of the word "damage" has been changed from that contained in the Directive. It may at first sight not appear to matter but it has very serious implications, intended or otherwise.
The Bill states that "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.
If a defective product exploded or otherwise caused injury the Bill would provide for two categories of damage only. An injured person could get compensation for that injury and he could also be compensated for damage to any item of property. One very important category is omitted, that is, the category of consequential losses. It is an inherent and basic principle of our law, and has been for centuries, that if damage is caused a person can get compensation for injury, damage to property and consequential loss. If a car has a defective mechanism which causes it to crash, serious injury may result which may cause a man to be out of work for two years or even permanently, say in the case of loss of limbs. The consequential element, the loss of earnings, is excluded as the Bill is presented.
All will hinge on the definition of the word "damage". A person will get compensation for an injury and for any loss of property. This important category of consequential losses, including things like loss of earnings or loss of the use of an article, such as a motor car, is being specifically excluded in the wording of the Bill.
This is all the more strange when one goes back to the directive. We see that the wording of the directive has been changed. The definition of "damage" in the directive at Article 9 on page 11 of the Bill is as follows:
For the purposes of Article 1, "damage" means:
(a) damage caused by death or by personal injuries;
At first sight that might appear to be the same thing but it is very different in fact because if one adopts the wording of the directive damage caused by personal injuries would clearly include consequential losses. It seems quite clear that the intent of the directive is to include that category of damage. Damage caused by death or personal injuries includes the normal use of the word "damage" which does include consequential losses. However, because the Minister has changed the wording of the directive, he is giving an entirely artificial and limited meaning to "damage" from the position it has under ordinary law. I find that strange and I wonder is that intentional or did it work its way into the drafting of the Bill by accident.
There is another strange thing about it. If we were to adopt the Bill in its present form we would immediately be running into apparent conflict within the Bill itself. I would like to draw attention to page 3, line 19, which says:
"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".
By that definition it is purporting to be giving a primacy of interpretation to the position in the directive which is in conflict with the definition of damage given here. In a nutshell, what it amounts to is that the definition of damages is all too limited and a meaning has been given to it that would not be in accordance with the directive, and that, I am quite sure, Deputies would not want. It is an important and very worthwhile new concept that is being brought in in the Bill. However, it seems to be limited so that one would only get compensation for the injury as a result of a bad product and for damage to other property and if one loses earnings from being put out of work for a long period, one cannot recover earnings or damages for the loss of the use of the item itself and one might have to hire another item, say, a tractor or something one used for work. I am rather puzzled about it and I hope we can correct that position.