Producer Liable without Proof of Fault

Under the defective products legislation, the producer is liable for personal injury caused by a defect in the product, without proof of fault. The legislation provides liability for death or personal injury caused by a defect in a product. There is also liability for damage or destruction of property, used for private use, provided that this exceeds £350 (€444.40).

Most goods and products are covered.  There is deemed to be a defect, if the safety of the product is not such as would generally be expected. Safety covers safety in relation to components. It covers the risk of damage to property as well as risks of death and personal injury.

Persons harmed by an unsafe product can take legal action for compensation, even if they did not purchase the product themselves.  Proceedings must be brought within three years of the event, or of the claimant becoming aware of the defect, of the product’s identity or when he should reasonably have become aware of them.

Range of Defendants

Where damage is caused by a defect in a product, a range of persons are potentially liable for the damage.  The defective products liability legislation allows direct recourse for a user of a dangerous or defective product against producers, importers, and manufacturers of the product.

The parties who are potentially liable includes any person

  • who puts his name on the product
  • uses a trade mark in relation to the product and
  • anyone who has held himself out as being the producer.

The producer includes the manufacturer and it may include the manufacturers of components. The legislation extends potential liability to entities which have undertaken any industrial or other processes which affect the essential characteristics of the product.

Producers include a person who imports the product into the European Union.

It may not be otherwise possible to sue these parties as there is no contract with them. In many cases, they would owe a duty of care, such as to make them liable in negligence. However, unlike the statutory position, a claim in negligence requires proof of fault / negligence on the part of the defendant.


Basic Obligations

Designers, manufacturers, importers, and suppliers of any product or article are obliged to ensure in as far as reasonably practicable that it is designed and constructed so that it can be used safely without risk to health and complies with relevant product safety standards.

Suppliers must provide information, including revisions where necessary, where the article gives rise to a serious risk to health and safety.  Information must include information on safe installation, use, and maintenance, dismounting, cleaning, disposal. Where up-to-date information becomes available, the supplier is obliged to pass this on to users.

The product must be properly tested and examined.  The relevant information must be acquired.  It must comply with the requisite EU standards.  The information supplied must include identification as may be arising — of risks arising from its properties and the results of tests which are relevant to safe use.

Importers

Manufacturers and importers from outside the EU are obliged to carry out research into the potential hazards associated with substances.  Repeat testing must be carried out where it is not reasonable to rely on the original testing.  The duties apply to things done in the course of business, in relation to matters within the control of the person concerned.

A supplier should take steps to ensure that persons up the distribution chain give a written undertaking that the article is safe for use.  This can relieve that person from duties for which those up the chain may be responsible. This does not relieve an importer from duties where the design, manufacture or other critical stages in production is undertaken outside the State. It does not relieve liability for breach of contract.

Basic Product Liability

Persons who design, manufacture, import or supply products and substances must ensure in so far as reasonably practicable that the substance is safe and without risk to health. They must ensure that the product is as safe as it can be and expected to be having regard to the expectations of the users.

A producer is liable for damage caused by a defect in its product.  It does not need to be found negligent.

Claimants do not need to prove that the manufacturer was negligent. It is sufficient to prove that the product did not provide the safety which a consumer is entitled to expect under the circumstances. The court takes account of the product’s presentation, when it was put into circulation, and what use could reasonably be expected of it.

Safety Measures and Procedures Required

A producer such as a manufacturer must ensure that safety is a key part of the process.   Safety must be considered at all stages from design to selling.   Specific regulations may apply to products and these must be complied with.   It is possible to join an appropriate quality assurance scheme. Importers are responsible in the same way as manufacturers.

In order to avoid liability as an intermediary, it is necessary to show the products were not faulty when supplied, to show that consumers are given adequate safety instructions and warnings about the use and to show the terms for return of faulty goods to the manufacturer or processer were included in the sales contract.

Defences

Producers may be able to rely on the following defences

  • at the defect existed because of compliance with mandatory legal requirements;
  • that the defect was in compliance with EU standards,
  • that the state of scientific and technical knowledge at the time the product was put into circulation did not know, allow the defect to be discovered,
  • that the defect did not exist at the time we put into circulation or came into being afterwards
  • that the product was not manufactured for distribution for any economic purpose; such as a prototype;
  • that the defect can be attributable to the design of the end product for which the end producer is responsible or can be attributed to instructions given by the producer

In some cases, the alleged producer may not be the appropriate defendant and may rely on the following general defences

  • that the defendant did not manufacture or distribute the product;
  • that he did not put it into circulation;
  • that it is probable that the defect never existed when he put it into circulation and that it came into being later;
  • that the defendant is a manufacturer of a component but the defect is not due to the component;

Terms in contracts which purport to limit the manufacturer’s liability are invalid.

Warning and Recall

Producers must take action to warn about the potential risks and give information to users to help them understand the risks.   They must monitor the safety of products by keeping registers of complaints and undertaking investigations and testing.   They must take action if a safety problem is found.

Non-manufacturers have safety obligations under the legislation. The business must take an active approach to prevent safety problems.    They must pass on safety information to consumers.  They must help monitor product safety when investigating complaints and passing information back to the producers. They must co-operate with the producers e.g. in the event of a recall.   They must notify the authorities of unsafe products.  They must retain relevant documentation to enable the origin of the unsafe products to be ascertained

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