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Product Liability – The Current Irish Position - October 2020

Have you ever purchased a product, which then ultimately caused harm to yourself, family, or property, due to an unexpected defect? The adage of “Caveat emptor” (let the buyer beware) provides little solace to those who find themselves in situations where using a faulty item causes unexpected pain, suffering or potentially even untold medical and financial costs. It is therefore reasonable to ask; what recourse is available in such unforeseen circumstances?

This article aims to provide a broad overview of the current state of product liability law in Ireland, and what this means for prospective claimants.

Foundations in Statute – Relevant Legislation

In essence, there are two key pieces of law surrounding the issue of defective products in Irish consumer law:

1. Liability for Defective Products Act, 1991 (last updated May 2019)

2. Sale of Goods & Supply of Services Act, 1980

The 1980 Act sets out that goods sold must be of merchantable quality. This Act also outlines the avenues of repair, replacement, or refund, where appropriate. The 1991 Act is more widely applicable, in the sense that it is cited in cases involving goods which may not necessarily be consumer-grade e.g. medical devices, aviation equipment, specialised tools etc. Importantly, s.7 of the 1991 Act provides for a three-year window for parties to bring claims. This is consolidated by s.2(1), which states that The producer [of a given product or good] shall be liable in damages in tort for damage caused wholly or partly by a defect in his product.”

From this point, it is necessary for a claimant to prove before the Court that their injury was directly caused because of using the product in question.

Dineen v Depuy International Limited (2017) – As it stands today

The 2017 case of Dineen v Depuy concerned an 81-year-old plaintiff who, having received a faulty right hip replacement, suffered as a result. The defendant company, Depuy, was a manufacturer of orthopaedic instruments and had recalled the model in 2010. The model used on Dineen was made of plastic, an innovation over metal hips of the past. At the High Court, the hip replacement model in question was noted as being at the centre of over 1000 alleged injury claims.

The legal test used by the Court, in determining whether Depuy knew of their product’s deficiency at the time of manufacture, was based on the 1997 case of European Commission v United Kingdom. This states that the quality of an allegedly faulty product should not be judged based on industry norms as when sold, rather, based on “… the state of scientific and technical knowledge at the time.” In this case, the Court ruled that based on Depuy’s knowledge of older metal hip models, they should have applied the same level of rigorous quality testing on the new plastic models to test for wear and tear.

The key learning from this case is that producers have a duty of care to ensure that their products are not only safe for use, but also tested beyond the bare minimum standard for quality purposes. Depuy failed in their defence, as they did not prove that they had tested their new material (plastic) sufficiently in line with the contemporary scientific standard knowledge on said material.

In Summary…

In an increasingly tech-focussed society, the need for the law to keep up with objective scientific and engineering practices is more important than ever. With media coverage of proceedings around issues such as exploding smartphones, damaged computer components destroying user data, or even issues like faulty knee/hip replacements – the Dineen case outlines the potential for substantial awards, where a claim is successful. Furthermore, the legal tests used here consolidate the existing legislation around product liability, providing much needed clarity for consumers and sellers alike across Ireland.

If you are a consumer, manufacturer, distributor or retailer and need advice in this growing area of law please contact us today.

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