The suggestion is that she did not actually swallow it. It was held by a majority decision in any case that there was a duty of care although there was no contractual duty between the plaintiff and the manufacturer.
The manufacturer of an article of food or medicine or the like is under a legal duty to the ultimate consumer or purchaser to take reasonable care so that the article was free from defect likely to cause injury to health. Lord Atkin set forth the broad "neighbour" principle relating to the duty of care and he also expressed the obligation owed by a manufacturer of chattels to the consumer. The broad "neighbour" principle he stated as follows:
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.
The obligation owed by the manufacturer of chattels to the consumer was expressed by Lord Atkin as follows:
A manufacturer of products, which he sells in such 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 an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.
This then is the hallmark case of negligence for two reasons. First, it did away with the so-called "contract fallacy" of Winterbottom v. Wright (1842) by recognising that a duty to take care may arise even though the plaintiff and the defendant are not in a contractual relationship. Second, having thus opened "the floodgates of litigation", as it was termed at the time, the court sought to create a device, the duty of care device, by which the law could restrict and control such litigation. The Atkinian test is no more then a statement of principle which the courts have since applied with notions of public policy very much in mind, and not every act or omission causing harm to another is, therefore, redressable.
Perhaps the wisest words were spoken by Lord Macmillan. He stated and I quote:
In the daily contacts of our social and business life human beings are thrown into or place themselves in an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care, as between those who stand in that relation to each other. 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.
Although the statement of principle in Donoghue v. Stevenson (1932) represented a major step forward in the development of the law, it is the subject of a number of important restrictions. The first is that the statement as originally explained by Lord Atkin was only applicable to manufacturers. However, the Atkinian test has since been extended to other categories including repairers, erectors, installers, assemblers and builders. In the Irish case of Power v. Bedford Motor Company (1959) Justice Lavery in the Supreme Court stated that the Donoghue v. Stevenson principle “must now be taken as settled”, and he continued:
It is clear in principle that the obligation is not confined to the manufacturers of goods, but extends to persons undertaking repairs to articles, which will be dangerous to users, who should be in contemplation if there is a want of reasonable care in the work. It must also apply to persons doing work on an article, which they foresee would be used by others without examination.
It is clear from this passage that a repairer of goods may be liable under the Donoghue v. Stevenson principle. Accordingly in the Power case liability was imposed on the defendant garage for the negligent repair of a motor car which left the steering mechanism in a dangerous state after the repairs had been completed. In the case of Haseldine v. Daw Limited, (1911) due to negligent repair of a lift a block of flats fell and injured the plaintiff who was inside. On the liability of the repairers Lord Justice Goddard said:
Does the principle of Donoghue v. Stevenson apply to a repairer of chattels as it does to a manufacturer, when there is no reasonable possibility of intermediate examination after repair.
It is clear that the likelihood or absence of inspection is central to liability. If this is so, there is no logical distinction between a manufacturer and a repairer. However, it must be noted that the repairer of a chattel is only liable to those whom he can reasonably foresee would be likely to be injured by it. The liability of a car repairer is thus potentially very wide. Erectors, installers, assemblers and builders have been held liable in a number of cases.
An unusual application of the principle was made in Brown v. Cotteril (1934). In that case liability was imposed on a tombstone erector when the tombstone he had erected fell on a little girl who was placing flowers on her grandmother's grave. The court held that the erector could not shift liability from himself onto the person who had contracted with him for the erection of the tombstone because:
persons who employ monument masons to erect tombstones rely on the mason's skill, and not on their own examination, and there is, therefore, nothing in the acceptance of the mason's work to exempt him from liability for the defective work, which he has erected in a place to which the public have access.
The category of persons to whom the principle has been extended is characterised by the fact that they created the danger or were responsible for the creation of the danger. The difficulty then arises whether the principle should be extended to the retailer of defective goods. Here the situation is different because the vendor has not created the danger but has simply sold the product to the consumer. It is clear that the supplier of a chattel for reward is under a duty of care in respect of the safety of persons who are likely to use it when so supplied.
In the case of Keegan v. Owens (1953) the Supreme Court held that the supplier for reward of swing boats for a charity carnival owed a duty to protect a worker employed by the carnival committee from injury in the operation of the swing boats. It seems that a supplier may be liable in tort where he fails to inspect the goods and he is under a duty so to inspect them. Such a duty to examine the goods does not arise in every case and it only arises where the supplier could reasonably be expected to carry out such an examination. Winfield and Jolowiz in their book The Law of Torts have put the issue in the following terms:
A second-hand car dealer may be expected to discover a patent defect in the steering mechanism of one of his cars, but a retail grocer, for example, cannot be expected to discover whether his tinned food is contaminated.
In specialised trades a retailer will be expected to carry out such inspections to goods as a retailer who sells those goods would be expected to make. In the case of Andrew v. Hopkins (1957) the court held that a car dealer could be expected to examine the steering system of a used car. However, the obligation imposed upon suppliers does not arise in every case, and even where it does arise, it is not an onerous obligation, and it can even be discharged by selling goods “as seen and with all its faults and without warranty”. (Hurley v. Dyke (1979)).
A further question of some importance arises in relation to the liability of a manufacturer or supplier in respect of a product supplied to him by an outside contractor. Is he liable for damage caused by it? If so, in what circumstances? In Fleming v. Henry Denny & Sons Ltd. (1955) Kingsmill-Moore J. stated:
It is, I think, impossible to lay down a universal rule. The nature of the material purchased, the reputation of the dealer from whom it is purchased, the obligation imposed by law on a vendor, the processes through which the materials have already passed in the hands of the manufacturer dealer, the past experience of the purchaser and the general experience of mankind; all these have their bearing on the remoteness or otherwise of the contingency. The manufacturer is not bound to take precautions against any contingency however remote and the nature of the precautions which he is obliged to take must bear a relation to the probability or improbability of the risk. A manufacturer of cakes may well be bound to take great care that stones are not incorporated in the currants which he uses, for the occasional presence of such stones is notorious, but it does not follow that if he purchases flour from millers of unblemished reputation he is bound to test it for the presence of Ergot, and still less would he be bound to examine the sugar, which he purchases from reliable sources, to see that it is not contaminated with strychnine or other poisonous crystals.
In Fleming's case the Supreme Court held that the manufacturers of black pudding were entitled to rely on the firms that supplied them with oatmeal and rusk meal and spices which form part of the ingredients of that pudding to take care that what they supplied to them was free from hidden dangers, such as a piece of metal. Kingsmill-Moore J. stated that it seemed to him that:
A manufacturer whose duty is to take reasonable care not to send out food containing any harmful substance may, in so far as the ingredients of the food are concerned, discharge this duty by obtaining the ingredients from firms of high repute, who have a like responsibility to see that the ingredients are free from any harmful substance. It may not be so in every case. The defect may be so obvious that it is a failure of reasonable care not to observe it. There may be special facts which require special precautions.
The second qualification in Lord Atkin's judgment is that it only applies to products. However, the principle as interpreted is not confined to items such as food and drink. It has been applied to motor cars, as in the case of Andrews v. Hopkinson; Power v. Bedford Motor Company and Brown v. Cotteril.
The third qualification is that in the Donoghue v. Stephenson case Lord Atkins described the duty as being owed to the “ultimate consumer”. The courts have taken a broad view of this element of the duty and have extended its scope significantly. Clearly “consumer” in the narrowest sense of the word: namely the user of a retail product, will come within the scope of the definition. Various cases demonstrate that: Kirby v. Burke and Holloway (1944); Grant v. Australian Knitting Mills Ltd. and Fleming v. Henry Denny and Sons Ltd. However, the broader view has been taken in Power v. Bedford Motor Company and in case the purchaser of a car from another person was killed as a result of the negligent repair work done by the defendants for the former owner and liability was imposed on the repairer. Lavery J. in the Supreme Court again stated:
The deceased did belong to that class of persons whom the defendants should have contemplated as being exposed to the danger, if the work was done wrongly.
That class of persons included "any person who might drive, or be a passenger in the car, and perhaps others who might be injured if the car went out of control, though it is unnecessary to consider them". The Supreme Court has since recognised in O'Sullivan v. Noonan (1972) that the supplier of a car with a defect that renders it dangerous may be liable for resulting damage not only to passengers in the car but also to “other users of the highway or other parties who would foreseeably come into proximity with the motor vehicle”. In any other decisions this ultimate consumer test has also been broadened.
In Barnett v. Packer (1940) a confectioner was injured by a lump of metal protruding from a sweet which he ate from his own stock and he was permitted to sue in the court, though quite clearly the goods in question were never intended for the ultimate consumer. Similarly, as I said previously, in the case of Brown v. Cotteril (1934) the child in the churchyard was entitled to recover when hit by a tombstone, Lawrence J. considered that the mason was under a duty “To every member of the public, who might lawfully enter the churchyard and be injured by the fall of the tombstone”.
In Stennett v. Hancock and Peters (1939) a garage owner defectively fixed a flange on a lorry wheel and a pedestrian was stuck by the flange when it fell off a passing lorry. Liability was imposed on the garage owner.
In the interesting case of Grant v. the Australian Knitting Mills (1936) the plaintiff contracted dermatitis as a result of wearing underpants manufactured by the defendants which contained an excess of sulphite. The Privy Council held that the defendants were liable to the plaintiff on the principle of Donoghue v. Stevenson. Lord Wright stated in that case that the defendants' manufacturing process was very thorough and careful but the fact that the chemical was present raised an inference of negligence on their part which they had not rebutted. The principle of Donoghue's case can only be applied where the defect is hidden and unknown to the consumer. Thus, the snail in the sealed opaque bottle could not be discovered so, here was the presence of the chemical undiscoverable. The garments were not intended to be the subject of intermediate examination. It is irrelvant here that the pants were sold in unsealed packets, whereas the ginger beer was in a sealed bottle.
The essence of Donoghue's case was not that the bottle was sealed but that it was intended to reach the consumer in the same condition it left the manufacturer. Not only may res ipsa loquiter, or a variation of it, assist the plaintiff, but also the duty appears to be a very high one. In that case the evidence showed that the Australian Knitting Mills had sold pants to over five million happy customers and that Dr. Grant was the first casualty. However, as Lord Wright said, it was not their system of manufacture which was at fault and even one in five million did not rebut the inference of negligence.
The fourth qualification then in the Atkinian tests is that the manufacturer must intend the goods to reach the consumer in the form in which they left the manufacturer. This is not to say that they must be in exactly the same form. For example, in the Grant case, the defendants argued that they were not liable to the plaintiff because the underwear left the factory in packets of six, and as only two had been sold to the plaintiff somebody could have tampered with them when they were in the shop being unpacked. This argument, however, was rejected by the Privy Council who held that the mere possibility of someone else tampering with the goods was insufficient to discharge the liability of the defendants. However, the Privy Council did concede that where there was the possibility of someone else tampering with the goods, the difficulties of proof may be greater for the plaintiff because the plaintiff must provide sufficient evidence that the defect existed when the product left the possession of the defendants.
In the case of evidence against Triplex Safety Glass Company Ltd., (1936) P., the plaintiff, bought a new Ford car with a Triplex toughened windscreen. A year after the purchase, when the car was being used, the windscreen suddenly shattered for no apparent reason and injured the plaintiff. The court held that D, the manufacturer, was not liable to P because P could not show that the defect was in the windscreen when it left D. It was possible that the defect occurred in the motor assembly plant after the windscreen had left D or in the period of one year while P had been using the car. Porter J. stated in that case:
Given the amount of time which had elapsed since the windscreen had left the manufacturers, negligence could not be inferred. Damage may have been caused when the screen was fitted, or in the course of one year's driving. Furthermore, there was an opportunity for intermediate examination of the screen by the car makers.
The fifth qualification to the Atkinian test is that it has confined to the case where there was no real possibility of intermediate examination by the consumer. Thus, it was held that the defendant was not liable where the defendant was actually aware of the danger and disregarded it or where an examination was so carelessly carried out as not to reveal the defect.
In the case of Kuback v. Hollands (1937) a manufacturer sold chemicals to D2, with an express warning that the chemicals had to be tested before use. D2, the second defendant, then mistakenly sold the chemical to D1, the first defendant, a school laboratory, but did not supply the warning relating to the need to test before use. P, the plaintiff, a schoolgirl, was injured when the chemical exploded in an experiment. P was unsuccessful in her attempt to recover damages from D1 but she did succeed against D2. D2 then sought an indemnity from the manufacturer. The court held that the manufacturer was not liable because they had given adequate warning to D2 of danger and D2 had chosen to ignore it. However, it is not the case that the mere fact that there was a possibility of intermediate examination is sufficient of itself to exonerate the defendant.
In Griffiths v. Arch Engineering Company (1968) P borrowed a portable grinding tool from the defendant. The tool was in a dangerous condition as an incorrect part had been fitted to it at some time by a servant of D. P was injured while using the tool. The court held that although P had an opportunity to examine the tool, D had no reason to suppose that the examination would actually be carried out and therefore, D was liable to P. If the manufacturer can reasonably anticipate intermediate examination he will, nevertheless, be liable if the defect is one which the examination would not ordinarily reveal.
In the case of Herschtal v. Stewart and Arden (1940), D, a garage owner sold a second-hand car to P. They had, in fact, fitted wheels on the car in a careless manner and one came off injuring P. The court held that although it was reasonable to expect intermediate examination of the car wheels, the defect was one which would not have been revealed on examination. In the case of Andrews v. Hopkinson (1957), P bought a car on hire purchase from D. The car was secondhand and D had taken no steps to ensure that the car was roadworthy, although the car had been in his possession for a week. The car had a defective steering mechanism and as a result P was involved in an accident shortly after he took possession of the car. The court held that this was the type of defect of which P should have been warned by D, and that this was not the type of defect which P was expected to discover upon reasonable examination of the car. Accordingly, D was held to be liable to P in that case. If P knows of the dangerous nature of a chattel and disregards it, then the defendant is not liable unless he should have foreseen that P was bound to disregard the danger, the case being Farr v. Britters Brothers in 1932.
If the danger is known to a third party whose duty it was to withdraw the chattel from circulation, then D is not liable, the case being Taylor v. Rover Company Limited in 1966. In that case a chattel had been negligently manufactured and its defect was known to P's employers who had done nothing about it but let P continue to use the car until he was injured by it. The court held that there was a break in the chain of causation between the manufacturer and P's injury because the employer had a duty to withdraw the article from circulation. Thus, the courts in keeping with the general trend to favour the injured plaintiff have gradually relaxed their attitude regarding intermediate inspection.
Section 34 (2) (f) of the Civil Liability Act, 1961 went no further than what the courts have already done and have already decided in providing that where an action is brought for negligence in respect of a article that has caused damage, the fact that there was a reasonable possibility or probability of examination after it had left the hands of the defendant does not, by itself, exclude the defendant's duty but may be taken as evidence that he was not in the circumstances negligent in parting with the article in a dangerous state. A technical approach to the issue has been set aside in favour of an approach that makes the issue a jury question, to be determined according to common sense, albeit with the likelihood of sympathy for the plaintiff.
In the case of Colgan v. Connolly Construction Company (Ireland) Limited, 1980, Justice McMahon went so far as to express the view that section 34 (2) (f) of the 1961 Act has shifted the onus of proof to the defendants in product liability cases. These defects led to strong arguments for reform. Advocates for reform included the Pearson Commission, the English Law Reform Commission and the Scottish Law Reform Commission. The European Community produced a directive on product liability, Directive 35/374 EC which gave member states three years from 23 July 1985 to introduce national laws which complied with the terms of the directive. It is this directive which is the main source of influence on this Bill which is intended to bring Irish law into line with the provisions of the directive. The essence of the measure is contained in Article 1 of the directive and in section 2 (1) of this Bill. Section 1 (1) provides that the producer shall be liable in tort for damage caused wholly or partly for a defect in his product.
There are some important qualifications to this statement of principle but the main notion is clear: liability is based not on wrongful conduct by the producer which in theory is the hallmark of negligence but merely on proof of a fact that a defect in the product caused the plaintiff damage. However, it seems that normative considerations enter into the picture when deciding what constitutes defectiveness in this context. The range of liability under the directive is not radically different from that under common law principles.
The statement of principle contained in section 2 (1) of this Bill can be broken down into a number of separate elements. The first element is that the principle contained in section 2 (1) only applies to a product. A product is defined in section 1 (1) as including all movables with the exception of primary agricultural products which have not undergone initial processing, even where the movables are incorporated into other movables or into immovables whether by virtue of being a component part or raw material or otherwise.
Primary agricultural products are also defined in section 1 (1) as meaning the products of the soil, stock farming and fisheries and game including such products and fisheries which have undergone initial processing. The dividing line between products which have undergone initial processing and those which have not may sometimes be difficult to draw. What about the use of hormones, antibiotics and other additives in feeding-stuffs? What about the use of pesticides and fertilisers on fruit and vegetables? The English Law Reform Commission and the Scottish Law Reform Commission have observed:
...even fresh vegetables which at first sight would seem to be a good example of unprocessed natural products may have been sprayed by chemicals and the land in which they grew artifically fertilised.
It is doubtful whether the concept of initial processing ranges quite so far but the point is worth noting as McMahon and Binchy have stated, that the exception relating to primary agricultural products is a good deal narrower than might first appear.
Sir Gordon Borrie, Queen's Counsel, Director General of Fair Trading in the United Kingdom in an article entitled "Product Liability in the EC" published in the Dublin University Law Journal, 1987 is of the view that none of these arguments removes the exemption in regard to primary agricultural products. The UK Government's view of the intentions of the directive and of the way that it has been embodied into domestic legislation is that the exemption for agricultural products is lost only where there is alteration in the essential characteristics of the product through the use of machinery on a continuous basis. Thus, the exemption, is lost when, for example, fruit, vegetables and chickens undergo the process of freezing in a factory or meat is turned into meat pies.
Any member state may by derogation exempt itself from article 2 of this directive. It may provide for this in its own domestic legislation. Products are to include primary agricultural products and game. There is a general exclusion of immovables, buildings or land. In the law of negligence immovables tended to remain outside the scope of a full duty of care. It is only in recent years that the exemption from liability for owners and builders has gradually been swept away. The leading Irish case on this is Ward v. McMaster in 1985.
The directive will not apply, for example, to a defective house which collapses except to the extent that any movable incorporated into the house is defective. Thus, if a girder installed in a house is defective and this brings about the collapse of the house the directive will apply. Since most immovables are composed of movables which are incorporated into the home, the range of application of this section cannot be ignored. However, McMahon and Binchy in their book The Law of Torts in Ireland suggest that in such cases it would be necessary to show that the particular movable or movables were defective. In other words, a defective combination into an immovable, or movables which themselves are not defective, would not appear to fall within the scope of this legislation. Alex Schuster, lecturer in law at Trinity College, Dublin, considers that this provision will have important implications for the building industry in so far as a producer of cement or steel joists used in the construction of a building, could find himself legally responsible if a defect in his product triggers a major catastrophe.
Section 1 (1) (b) also provides that electricity is a product for the purposes of this legislation but liability is restricted to those instances where danger is caused as a result of a failure in the process of generation of electricity. Finbar O'Mahony, Secretary of the Electricity Supply Board, in a recent article entitled "Customer Policy — The New EC Trading Environment. The ESB Position" states that electricity is mentioned in the directive because under many laws electricity is deemed to be energy and not goods. However, the inclusion of electricity in the definition of products is intended solely to cover defects which are due to a failure in the process of production of electricity and not to defects which are due to external agents intervening after the electricity has been put into the network, nor to damage resulting from a failure to supply.
He also observed that each EC country was required to adapt its laws to give effect to the directive by 25 July 1988, and that Ireland had not done so at that time. However, in the case of Foster v. British Gas (1980), it was held that an EC directive can have direct effect against a nationalised company, such as the ESB, even if domestic legislation does not implement the directive. Therefore, an individual can rely on it in a claim for damages against the body responsible for providing a service under the control of the State. Such bodies must comply with the EC directives even though the State has not implemented them.
The second element contained in the statement of principle relates to the persons to whom section 2 (1) apply. Section 2 (2) reads:
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 in order, 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.
Section 2 (3) provides that where the product cannot be identified each supplier of the product is 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. Alex Schuster observes that this extension of the parameters of liability carries important implications for all the major players in the distribution process. It will encourage the keeping of comprehensive records to enable both the wholesale and retail industry to pass the burden of liability to the manufacturer of dangerously defective products.
It is scarcely surprising that the manufacturers of finished products, the producers of raw materials and the manufacturers of component parts should be treated as producers for the purposes of this legislation and this directive, nor should it be a matter of serious debate that those who present themselves as producers by putting their names, trade mark or other distinguishing feature on a product should also be treated as producers. This practice is particularly common among large retail organisations and has been part of Irish merchantile life for many years. It would be curious if, having presented products as their own to the public, retail organisations should be later allowed to disclaim strict liability on the basis that the articles were not really their own products. Indeed, it will not produce an appreciable increase in exposure to legal liability for firms such as Quinnsworth, Dunnes Stores, etc. All these firms are already liable under the law of contract in respect of both dangerous and qualitative defects in their products. Therefore, there is no reason to suggest that the new legislation will lead to significant increases in insurance premiums payable by such firms, but they would be well advised to keep comprehensive records of all their suppliers to enable them to pass the burden of liability further down the distribution chain.
Importers will also fall within this catchment area of new legislation. For example, the Irish victim of a defectively wired television set manufactured in South Korea might in the past have found himself without an effective remedy if the retailer who supplied it had absconded or had gone into liquidation. Although there would have been nothing to prevent him from suing abroad, the expense involved in what would have been a risky undertaking and the difficulties inherent in suing in a foreign language would have militated against this course of action.
The new legislation will vest Irish consumers with a remedy against the importer where a dangerously defective product emanates from outside the Community. If the product has been imported from another member state, the importer will not be subjected to liability under this legislation. However, in this event the consumer who finds himself bereft of a domestic market for damages can sue the manufacturer directly by harnessing the redress mechanism provided by the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988.
So far as imported products are concerned, it is only the person who imports the product in order, in the course of any business of his, to supply to another who is deemed to be a producer. Thus, for example, there is no question that the directive will apply to non-commercial importations of food or gadgets purchased abroad by holidaymakers. This was a fear that troubled the English Law Commission and the Scottish Law Commission. The argument in favour of imposing strict liability on the commercial importer is that his business involves exposing consumers within the Community to the risk of being injured by imported products. Realistically, therefore, consumers will be grateful for being presented with a relatively easy target within the Community rather than having to face the prospect of expensive and uncertain litigation in some foreign jurisdiction outside the Community.
Where the producer cannot be identified there is much to be said for effectively treating the supplier as the producer, unless he discloses the identity of the actual producer. The English Law Commission and the Scottish Law Commission have observed that it assists the injured person in tracing the anonymous producer in circumstances where assistance is needed; it encourages retailers and other suppliers to keep records from which it may be possible to establish the identity of the supplier or producer of the product in question; and by making it harder for the producer to remain anonymous, it encourages him to reveal his identity by labelling his products where practicable. The third element contained in the statement of principle is that the product must suffer from a defect.
Section 5 of this Bill defines defectiveness in the following terms:
(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 produce would be put, and
(c) the time when the product was put into circulation.
Section 5 is concerned with the circumstances in which a product is defective. Under existing Irish law a person, in some circumstances may be liable in negligence for producing a defective, non-dangerous product. However, under section 5, defectiveness does not have this wider meaning. Thus, products that are safe but shoddy will not fall within the scope of this legislation. The key word in section 5 is "safety". A product is defective when it does not provide the safety which a person is entitled to expect taking all the circumstances into consideration.
Section 5 (1) mentioned three specific circumstances, giving them no particular weight relative to each other or relative to other unspecified circumstances. What weight each should have must depend on the facts of the particular case. The first of these is the presentation of the product. If, for example, a product is represented in advertising literature or in the detailed descriptive literature accompanying its sale as being of a particular quality a consumer who is injured or suffers damage as a result of the product's dangerousness in lacking this quality may have a right of action. Thus, where a hot water bottle, for example, is represented as being capable of taking boiling water and it is not, an injured user who relies on this representation may well succeed on this account on showing that the hot water bottle did not provide the safety which he was entitled to expect.
McMahon and Binchy suggest it would appear that presentation of the product includes an omission to provide information which should have been given to protect the user from harm. Thus, the failure of a producer to refer to an allergic reaction which was known to the producer to affect the product, could in some circumstances be relied on by the injured consumer.
The second circumstance specified in section 5 (1) is the use to which it could reasonably be expected that the product would be put. Clearly, there are limits to what reasonably may be expected. It is unreasonable, for example, to expect that a hammer should be capable of being successfully used as a car jack. Moreover, a competent adult who deviates widely from specified instructions as to the use of a product may have no right to complain about injuries resulting from his or her failure to comply with those instructions. It remains to be seen how the courts will interpret that phrase "could reasonably be expected". McMahon and Binchy have observed as follows: On one interpretation it would extend to all cases that might reasonably be anticipated. On another view it excludes unreasonable but nonetheless foreseeable misuse. This difference is important because products are sometimes used for purposes which they were not meant to serve in circumstances where the practice of misuse may be perfectly forseeable by the producer. If the phrase "could reasonably be expected" excludes such foreseeable instances of misuse, the range of liability under this directive will be restricted in a very significant respect.
The third circumstance specified in section 5 (1) is the time when the product was put into circulation. This factor may operate in one of two ways, first the passage of time may be relevant as throwing light on what a person is entitled to expect and, second, to take an obvious example, one would not be entitled to expect that a chocolate cake would be edible after a year. Indeed, one should surely expect that a consumer product after sufficient wear and tear will eventually become likely to be unsafe. This is one of the reasons we change our cars and our electrical appliances periodically.
The second way the time factor specified in section 5 (1) operates is somewhat different. It relates to the fact that safety standards may change over a period of time. This change may be as a result of a development in the state of scientific and technical knowledge. Such a case is also covered by section 6 (e). Safety standards may also change without direct reference to such scientific and technical developments. What may have been an acceptable risk from a product 20 years ago may simply cease to be acceptable to the community over this period. For example, there is a greater sensitivity to questions of hygiene and road safety today than there were some years back.
The thrust, therefore, of section 5 is to seek to ensure that producers will not suffer unduly from these changes in attitude. Section 5 does not give the producer an absolute defence to show that the product complied with the standards of the time when the product was put into circulation. However, this will be merely a factor to be considered as one of a number of circumstances in determining whether the product was defective.
These are the specific factors to which the courts are directed to have regard in this legislation. It is not yet clear whether the courts will have regard to the cost of making the product here or the cost of the product itself. The passage of time since the product was put on the market may also be relevant to the question of proof. Prosser and Keating have noted that the older the product the less likely it is that the evidence of malfunctioning will suffice as an inference of a construction flaw, although some courts would permit the plaintiff to negative misuse and overuse in such a case.
Finally, in this context section 5 (2) provides that a product shall not be considered defective for the sole reason that a better product is subsequently put into circulation. This recognises the fact that the production processes are inevitably subject to constant technological change and that to stigmatise as defective merely because a better product has later been produced would be unfair and impractical. However, in some cases later circulation of a better product may be potent evidence that greater safety could have been achieved earlier. Section 5 (2) does not prevent this inference.
The fourth element to note is the factor of causation plays a crucial role in determining the ambit of liability. The plaintiff must show that the damage was caused wholly or partly by a defect in the product. There is no requirement that the loss be a foreseeable one; simply that it was caused by the defect in the product. Nor need the defect be the sole cause of the damage to the plaintiff. It is sufficient that it was partly responsible for the damage which occurred.
Section 4 provides that the onus shall be on the injured person concerned to prove the damage, the defect and the causal relationship between the defect and the damage. The onus of proof is thus clearly on the injured person, the consumer. What must be proved in less conceptually encumbered than what is necessary to establish in a negligence action.
There is no need to establish any breach of a duty of care on the part of the defendant. All that need be shown is that the product was defective, that the plaintiff suffered damage and that the causal relationship between the defect and the damage existed.
One or two questions arise about this approach. First, to what extent if at all may the doctrine of res ipsa loquiter or some analogue apply? This is a formidable issue under the present law in Ireland since it is less than fully clear what precisely this doctrine means at the moment and what are its effects to the onus of proof.
Secondly, what is meant by the phrase "the causal relationship between the defect and the damage"? Obviously if there is no causal relationship the plaintiff cannot succeed but the converse is not necessarily the case, as the doctrine of proximate cause or remoteness of damage makes clear. In tort law, not every case involving causal relationship will be sufficient to impose liability on the defendant. This limitation aplies even in cases of strict liability. Section 4 specifies no similar limitations. McMahon and Binchy have observed: "Perhaps it should be interpreted as implicitly imposing liability. Alternatively, it could be read subject to implicit limitations to be filled by judicial exegesis".
Another element to note is that the Bill only applies to certain types of losses which are suffered by the plaintiff. Two heads of damages are recoverable as damage under this new regime. Section 1 (1) provides 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 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 primarily for his private use or consumption. This definition of damage is subject to the proviso that the claim exceeds the qualifying threshold of £350 in respect of property.
It is important to stress that the new regime only covers unsafe products; products which cause death or personal injury automatically fall within the parameters of the new regime. It is important to point out that damage to or destruction of property will only fall within the ambit of liability if the property is of a type ordinarily intended for private use or consumption.
To succeed, therefore, in this type of claim the injured party must also prove that he used the defective product primarily for his own use or consumption. If, therefore, an unscheduled interruption of an electricity supply caused major economic loss to a computer firm the commercial nature of the computer firm would effectively preclude it from initiating a statutory action against the ESB. There would be nothing to prevent the firm in question from pursuing a claim in negligence but claims in respect of interruptions in the electricity supply have not met with great success in recent years.
The legal position would be different if, for example, a computer company designed a programme for consultants in a hospital and a glitch in the programme caused important diagnostic information to disappear from a patient's medical record which might prevent consultants from identifying a curable tumour. If the patient subsequently died as a direct result of the uncontrollable proliferation of the tumour, it would be open to personal representatives of the plaintiff or the consultants to argue that the computer company should bear the brunt of strict liability under this new regime, subject, of course, to the state of the art defence and the defences afforded by this legislation. The company might also be liable under tort of negligence but the plaintiff would have an uphill struggle to establish fault in this category of case.
Section 11 implements Article 9 of the directive but Article 9 specifies that it shall not prejudice national provisions relating to non-material damage. Thus recovery of consequential economic loss is left to the existing rules of both contract and tort. The Minister of State in his reply could elaborate why the legislation has not dealt in specific terms with the recovery of consequential economic loss.
Doubts have been expressed as to whether damages for pain and suffering fall within the field of liability introduced by the directive. This uncertainty has been removed by the interpretation section in this legislation which defines personal injury as including "any disease and any impairment of a person's physical or mental condition". So far as property damage is concerned, section 1 (1) requires first that the damage be to any item of property other than the defective product itself. Thus if an electric kettle self destructs and burns to a cinder but causes no damage to other property, no liability accrues under this new legislation. Section 1 (1) requires, secondly, that the item of property damaged by the defective product be of a type ordinarily intended for private use or consumption and that it had been used by the injured person mainly for his own private use or consumption.
Clearly, the directive is seeking to exclude damages to property used in the course of a trade, business or profession. McMahon and Binchy consider, however, that the language used in this section is perhaps unfortunate. It would seem in its expressed terms to exclude property damage sustained by an innocent party as a result of an accident brought about through the innocent use of an unsafe product by its owner. For example, if X buys a car with defective brakes and smashes through Y's front window leaving X physically unscathed, Y is surely morally entitled to compensation for property damage but it cannot be said that the car was used by the injured person, Y, mainly for his own private use or consumption. Y never used the car and he first became acquainted with it in his livingroom after the damage was done.
This legislation creates a statutory right of action and proof of specific matters. However, a number of defences will be open to a defendant sued under this legislation when it becomes operative. I notice that the only defences mentioned by the Minister of State are the statutory defences contained in the legislation but other defences are open to the defendant including primary defences where the defence may contest the primary facts. The defence of contributory negligence is open to a defendant sued under this legislation but it is unclear to me how this apportionment is to be determined.
The legislation provides that the producer as defined in the Bill has a number of defences to claims brought under this legislation. He will not be liable if he is able to prove any one of six defences. I hope that on Committee Stage we will be able to deal more specifically with the statutory defences outlined.
There are many other defences such as the defence of novus actus interveniens open to the defendant. This legislation constitutes a significant improvement on the common law and is a real improvement for consumers. However, the Bill does not remove the difficulty of recovering in respect of the defect in the product itself nor does it make it significantly easier for a consumer to recover from a supplier.
The inclusion of the state of the art defence may undermine to a considerable degree the claim of this legislation to have introduced a regime of strict liability applicable to defective products. The inclusion of this state of the art defence in this Bill may prove a significant flaw in the legislation and is likely to lead at some time in the future to further calls for reform in his area of the law.
I appreciate that Senator Conroy has been waiting for a long time. I intended to deal with other aspects of the Bill but I will do that on Committee Stage.