The International Comparative Legal Guide to: Product Liability 2016
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The document is the 14th edition of the International Comparative Legal Guide to Product Liability, providing insights into various jurisdictions' product liability laws. It includes contributions from multiple legal firms covering recent developments, practicalities of product recalls, and statutory and tort liabilities across various countries. The guide is designed to serve as a reference for legal practitioners in understanding product liability laws globally.
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Chapter 18
Matheson
Tom Hayes
Michael Byrne
Ireland
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:
“[F]it 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.
Criminal
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 (“CPCC”) 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 CPCC 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
CPCC 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. While preparations have been made to draft
legislation to implement the report, it is not possible to say when
the proposals will 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
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 ProductsAct 1991 (“the 1991Act”), 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:
“[L]iable 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.
Tort
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.
Contract
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](https://image.slidesharecdn.com/theinternationalcomparativelegalguidetoproductliability2016-161220151542/85/The-International-Comparative-Legal-Guide-to-Product-Liability-2016-3-320.jpg)
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name, trademark or other distinctive mark, or the person who
reconditions the product;
■ the manufacturer’s representative, when the manufacturer
is not established in the Community or, if there is no
representative established in the Community, the importer of
the product; or
■ other professionals in the supply chain, in so far as their
activities may affect the safety properties of a product placed
on the market.
The 2004 Regulations also make distributors who supply or attempt
to supply a dangerous product, which they know, or it is reasonable
to presume that they should know, is dangerous, guilty of an offence.
In this regard, a “distributor” is defined as any professional in the
supply chain whose activity does not affect the safety properties of
the product.
1.4 In what circumstances is there an obligation to recall
products, and in what way may a claim for failure to
recall be brought?
Under S.9 of the 2004 Regulations, the CPCC is given the power
to “take all reasonable measures” to ensure that products placed
on the market are safe, including issuing a direction ensuring “the
immediate withdrawal of [a] product from the marketplace, its
recall from consumers and its destruction in suitable conditions”.
Under S.9(2) of the 2004 Regulations in taking this, or any other
measure, under the Regulations, the CPCC must act “in a manner
proportional to the seriousness of the risk and taking due account of
the precautionary principle”.
A person who fails to comply with a direction of the CPCC with
respect to the recall of products is guilty of a criminal offence and
is liable on summary conviction to a fine not exceeding €3,000, or
to imprisonment for a term not exceeding three months, or to both.
In addition, the common law duty of care imposed by the law of
tort (see above) may extend to product recall depending on the
circumstances of the particular case. Thus a failure to recall in
particular circumstances may be a breach of such duty, giving rise
to a civil action.
1.5 Do criminal sanctions apply to the supply of defective
products?
Yes, under the 2004 Regulations, “producers”, or “distributors”, as
defined, may be made criminally liable where unsafe products have
been placed on the market. Please see questions 1.1 and 1.3 above
for details.
2 Causation
2.1 Who has the burden of proving fault/defect and
damage?
As a general principle, it is for the injured party to prove the defect
to the product and the damage caused. This is stated in S.4 of the
1991 Act and is a general rule of the laws of contract and tort.
In tort and contract, the standard of proof is “on the balance of
probabilities”, while in criminal cases, the guilt of the accused must
be proved “beyond reasonable doubt”.
In certain circumstances, particularly in tort, the doctrine of res ipsa
loquitur can be applied to, in effect, reverse the burden of proof
and place the onus on the defendant to disprove an allegation of
“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 with other
countries that have put Thalidomide compensation schemes in place.
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
Statute
As stated above, S.2(1) of the 1991 Act makes the “producer” of
the defective product liable in damages caused wholly or partly by
the defect in his product. In this regard, S.2(2) of the Act defines
“producer” as:
■ the manufacturer or producer of a finished product;
■ the manufacturer or producer of any raw material, or the
manufacturer or producer of a component part of a product;
■ in the case of products of the soil, of stock-farming and of
fisheries and game, which have undergone initial processing,
the person who carried out such processing;
■ any person who, by putting his name, trademark 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;
■ 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
■ the supplier of the product where the manufacturer of the
product cannot be identified through the plaintiff taking
reasonable steps to establish his identity and where the
supplier fails to identify the manufacturer of the product
within a reasonable amount of time of a request being made.
Tort
Under the law of tort, the test to be applied is whether a particular
individual, e.g. the manufacturer, retailer, supplier or importer, owes
a duty of care towards the injured party. If such a duty is owed and
has been breached, that person is capable of having responsibility.
It is clear that the manufacturer of a product will owe a duty of
care to all those who may foreseeably be injured or damaged by his
product. The same will apply to retailers, suppliers and importers,
though the scope of their duty will typically be narrower than that of
manufacturers, extending to, for example, a duty to ensure that their
stock is not out-of-date. In practice, a plaintiff will not be required
to choose which of a number of possible defendants to sue, and any
or all potential tortfeasors are likely to be sued.
Contract
Under the 1893 Act and the 1980 Act, the seller will, subject to
certain conditions and exemptions, have a contractual responsibility
to the buyer in respect of faults or defects.
Criminal
In terms of the criminal law, the 2004 Regulations make a “producer”
who places or attempts to place an unsafe product on the market
guilty of an offence. The 2004 Regulations define a “producer” as:
■ the manufacturer of a product and any other person presenting
himself as the manufacturer by affixing to the product his
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and Contribution may be served by each of the defendants on their
co-defendants and ultimate liability (or an apportionment thereof),
if any, will be decided by a court at trial of the issue.
Market-share liability has not, to date, been applied by the Irish
courts in product liability cases.
2.4 Does a failure to warn give rise to liability and,
if so, in what circumstances? What information,
advice and warnings are taken into account: only
information provided directly to the injured party,
or also information supplied to an intermediary
in the chain of supply between the manufacturer
and consumer? Does it make any difference to the
answer if the product can only be obtained through
the intermediary who owes a separate obligation to
assess the suitability of the product for the particular
consumer, e.g. a surgeon using a temporary or
permanent medical device, a doctor prescribing a
medicine or a pharmacist recommending a medicine?
Is there any principle of “learned intermediary” under
your law pursuant to which the supply of information
to the learned intermediary discharges the duty owed
by the manufacturer to the ultimate consumer to make
available appropriate product information?
As in other Member States, Ireland’s membership of the European
Union has necessitated the introduction of regulations in many
industries stipulating specific information and warnings which must
be provided to consumers as to the nature, ingredients/contents and
safety of products. Failure to comply with these regulations can
have consequences for product manufacturers and distributors. Such
consequences vary depending on the provisions of the individual
regulations.
Specific statutory requirements aside, however, the issue of whether
warnings must be provided to consumers falls within the question
of compliance with the standard of reasonable care under the Irish
law of tort. It should be noted that an increased level of awareness
in society of product safety, and increased expectations on the
provision of product information, have made it more likely in recent
times that the absence of an express warning in respect of a danger
attaching to a product will be deemed to constitute negligence.
As further evidence of the pro-consumer approach within this
jurisdiction, the relevance of intermediate examination has been
consistently undermined by the law over the years. Formerly, it was
not considered negligent to allow a potentially dangerous product
into circulation if the danger could reasonably be discovered by way
of intermediate examination by the consumer or a middleman in the
chain of distribution. However, S.34(2)(f) of the Civil Liability Act
1961 provides that, while the possibility of intermediate examination
may be taken into account as a factor in determining negligence, it is
no longer conclusive. Whether the release of the product is seen as
negligent will, therefore, depend on all the circumstances.
While the concept of a “learned intermediary” has not yet received
specific judicial examination in Ireland, it is likely that the fact that
an examining intermediary has some expertise in the composition
and safety of the product could be pleaded to the benefit of the
manufacturer in arguing that the release was not negligent in all the
circumstances.
As regards criminal law, S.6 of the 2004 Regulations provides that
a producer must provide consumers with “all relevant information”
relating to a product which it has put on the market to “enable [the
consumer] to assess the risks inherent in the product throughout the
normal or reasonably foreseeable period of its use, where such risks
are not immediately obvious without adequate warnings and to take
precautions against those risks”. In addition, powers are granted to
negligence. Since the 1991 Act operates a system of strict liability
and is thus unconcerned with the negligence or otherwise of the
defendant, res ipsa loquitur will have no such application in the
context of a claim relying solely on the provisions of the 1991 Act.
In practice, however, for this reason, claims will seldom, if ever, be
brought relying solely on the provisions of the 1991 Act.
In criminal cases, it is for the prosecution to prove the guilt of
the accused. Under the 2004 Regulations, the prosecutor in such
offences is the CPCC.
2.2 What test is applied for proof of causation? Is it
enough for the claimant to show that the defendant
wrongly exposed the claimant to an increased risk
of a type of injury known to be associated with the
product, even if it cannot be proved by the claimant
that the injury would not have arisen without
such exposure? Is it necessary to prove that the
product to which the claimant was exposed has
actually malfunctioned and caused injury, or is it
sufficient that all the products or the batch to which
the claimant was exposed carry an increased, but
unpredictable, risk of malfunction?
S.4 of the 1991 Act provides that the injured person must prove the
damage, the defect and the causal relationship between the two.
In general, wrongful exposure to an increased risk of injury will
not, in itself, provide a claimant with a cause of action. The causal
relationship to a concrete loss or injury must be proven. If a claimant
cannot prove, on the balance of probabilities, that an injury would
not have occurred without exposure to the product in question, he/
she has not discharged the civil burden of proof on causation.
However, the recent CJEU judgment C-503/13 and C-504/13,
Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt –
and Others has the potential to expand the scope of liability beyond
what was previously understood. This case held that where it is
found that products belonging to the same group or forming part of
the same production series have a potential defect, such a product
may be classified as defective without there being any need to
establish that the particular product in question has such a defect.
This is a significant decision and it remains to be seen how it will be
interpreted by the Irish courts, whether they will apply the decision
only in cases of high risk product groups (such as implanted medical
devices as in the Boston Scientific case) or whether they will take a
broader approach.
As stated above, where the claimant encounters problems in proving
a causal relationship, the doctrine of res ipsa locquitur may be of
assistance.
2.3 What is the legal position if it cannot be established
which of several possible producers manufactured
the defective product? Does any form of market-share
liability apply?
As stated above, under S.2(3) of the 1991Act, where the producer of
a product cannot be identified through the plaintiff taking reasonable
steps, the supplier of the product may be treated as its producer
unless he informs the plaintiff of the identity of the producer, or of
the person who supplied him with the product, “within a reasonable
time” of such a request being made.
In terms of the law of tort, it would be usual, in circumstances
where a plaintiff cannot, with absolute certainty, identify the
producer of a defective product, that the plaintiff would institute
proceedings against all parties whom he reasonably suspects could
have been responsible for its manufacture. Notices of Indemnity
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the action. In other cases, it is for the parties to decide between
them whether to voluntarily exchange expert reports and/or witness
statements.
4.10 What obligations to disclose documentary evidence
arise either before court proceedings are commenced
or as part of the pre-trial procedures?
As a general rule, discovery of documentary evidence may only
be sought by either party once pleadings have closed, i.e. once a
defence has been delivered by the defendant. Discovery may be
sought by a party to the proceedings against any other party to the
proceedings, against third parties or against non-parties, subject to
proof of relevance and necessity.
Discovery should be sought firstly on a voluntary basis and, if
voluntary discovery is refused, it can then be sought by way of
motion if necessary. Discovery relates to all documentation in the
power, possession or procurement of a party to the proceedings
(or non-party) which may enable the other party to advance their
case.
Discovery prior to the institution of proceedings will only be granted
in very exceptional circumstances (Norwich Pharmacal Orders).
4.11 Are alternative methods of dispute resolution required
to be pursued first or available as an alternative to
litigation e.g. mediation, arbitration?
Article 11 of the 1991 Act states that this Act shall not affect any
rights which an injured person may have under any enactment or
under any rule of law. This may allow for the possibility that if a
claim is based on contract and there is a valid arbitration clause, the
parties may seek a remedy through arbitration rather than instigating
proceedings in the court.
In the case of personal injuries claims, S.15, 17 and 18 of the Civil
Liability and CourtsAct 2004 (the “2004Act”) may also be invoked.
Under S.15, the court may, at the request of any party to a personal
injuries action prior to trial, direct that the parties to the action hold
a mediation conference to discuss and attempt to settle the action.
There has recently been a successful appeal against such a direction,
on the basis that mediation would not have actually assisted in
reaching a settlement, which is a statutory pre-condition for a S.15
order (Ryan v Walls Construction Ltd [2015] IECA 214). Under a
S.15 mediation, a nominated chairperson or a court-appointed one
will report on the mediation conference and note any settlement
made to the court. Where one party fails to attend, the court will
take this into account when making a final award for costs.
To further facilitate settlement prior to trial, S.17 of the 2004
Act provides that both the plaintiff and defendant must make an
offer of settlement to each other at any time between the issue of
proceedings and before the expiration of two weeks after service of
the Notice of Trial. Where no settlement is agreed, the judge may
take into account these offers and the reasonableness of the parties’
conduct when awarding costs.
Finally, S.18 of the 2004 Act provides for pre-trial hearings for the
purposes of determining what matters relating to the action are in
dispute. There has been limited use of both mediation conferencing
and pre-trial hearings to date.
There has been significant growth in the use of mediation generally
in Ireland in recent years. Either party can suggest mediation as a
means of attempting to resolve the dispute. Order 56A of the Rules
of the Superior courts, as inserted by SI 502/2010, allows the High
Court, either on the application of any of the parties to a dispute
proceedings. In more complex cases or cases where procedural
time limits have not been complied with and/or a number of
interlocutory applications (for example, for discovery, particulars or
interrogatories) have been made, it is not unusual for a case not to
be heard for three years or more.
The Commercial Court, which is a division of the Irish High Court
dealing with commercial disputes with a value in excess of €1
million, has procedures to streamline litigation and can lead to a
much speedier conclusion of cases (although it does not apply to
personal injury litigation).
4.6 Can the court try preliminary issues, the result of
which determine whether the remainder of the trial
should proceed? If it can, do such issues relate only
to matters of law or can they relate to issues of fact
as well, and if there is trial by jury, by whom are
preliminary issues decided?
Yes. Orders 25 and 34 of the Rules of the Superior Courts provide
for the preliminary trial of an issue of law where such is deemed
expedient by the court for the saving of costs and/or time.
4.7 What appeal options are available?
First instance rulings in all civil cases may be appealed to a higher
court. Following the commencement of the Court of Appeal Act
2014, decisions of the High Court may be appealed to the newly
established Court of Appeal.
In limited circumstances, decisions of the Court of Appeal and High
Court may be appealed to the Supreme Court. The Supreme Court
will hear such appeals only if it raises a matter of general public
importance or is necessary in the interests of justice.
Directions of the CPCC under the 2004 Regulations with respect
to product recall or any other measures adopted may be appealed
to the Circuit Court within 21 days of receipt of the direction. An
appeal to the High Court on foot of the decision of the Circuit Court
on the direction may be appealed to the High Court on a question
of law only.
4.8 Does the court appoint experts to assist it in
considering technical issues and, if not, may the
parties present expert evidence? Are there any
restrictions on the nature or extent of that evidence?
The parties are free to appoint their own experts to put forward their
opinion as evidence at trial. Such experts are never appointed by the
court. Such experts are, however, entitled to be questioned on their
evidence by the judge, and, indeed, cross-examined by the opposing
party.
General evidentiary principles apply to their evidence, so that, e.g.,
it must be relevant to the issues at hand and within their field of
expertise.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
Experts are not required to present themselves for pre-trial
deposition.
In High Court personal injury actions, there is an obligation on the
parties under SI 391/1998 to exchange all written expert reports
(but not statements of fact witnesses) in advance of the hearing of
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Special jurisdiction rules apply where a party is domiciled in a Third
Country (Non-Member State). Articles 33 and 34 of the Recast
Brussels Regulation give discretion to Member State courts to stay
proceedings in favour of proceedings pending before the courts of
a Third State, subject to satisfying certain conditions. However,
a degree of uncertainty remains where the provisions of Articles
33 and 34 are not met. Following the decisions of the European
Court of Justice in Owusu v Jackson (Case C-281/02) and Group
Josi Reinsurance Co SA v Universal General Insurance Co Ltd
(Case C-412/98), which were made under the previous Brussels
Regulation, once an action comes within the scope of the Recast
Brussels Regulation, a national court cannot decline jurisdiction on
the ground of forum non conveniens. It is arguable that, save as
provided for in Articles 33 and 34, Owusu and Group Josi continue
to apply. Given this uncertainty, it is likely that Articles 33 and 34
will be the subject of further clarification.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
Statute
Under S.7(1) of the 1991 Act, a limitation period of three years
applies to proceedings for the recovery of damages under the Act.
The limitation period runs for three years from the date on which the
cause of action accrued. The limitation period under the 1991 Act
has been reduced to two years in one respect following the enactment
of the 2004 Act and the subsequent decision of the Irish High Court
in O’hAonghusa v DCC PLC & Others [2011] IEHC 300. Where the
limitation period runs from the date on which the plaintiff became
aware, or should reasonably have become aware, of the damage,
the action must be brought within two years of this date. This is
due to the “knowledge” provisions of the Statute of Limitations
(Amendment) Act 1991 being amended by the 2004 Act.
Interestingly, S.7(2)(a) provides for a “long stop” provision, which
extinguishes the rights conferred on the injured party pursuant to
the 1991 Act on the expiry of 10 years from the date on which the
producer put into circulation the actual product which caused the
damage, unless the injured person has in the meantime instituted
proceedings against the producer.
Tort and Contract
In actions in tort or contract, the various time limits within which
proceedings must be instituted are laid down in the Statute of
Limitations 1957 and the Statute of Limitations (Amendment) Acts
1991 and 2000.
In an action for tort, these provisions set a general time limit of six
years from the date on which the cause of action accrued − that is,
the date on which the negligent act occurred.
In an action claiming damages for negligence, nuisance or breach
of duty where the plaintiff claims damages for personal injuries,
the limitation period is shorter. This was formerly three years from
the date of accrual of the action or the date on which he became
aware of the accrual of the action, whichever is later (i.e. the date of
discoverability is relevant). However, the Civil Liability and Courts
Act 2004 reduced the limitation period for personal injuries actions
to two years for dates of accrual/knowledge on or after 31 March
2005.
In contract, there is a limitation period of six years from the date of
the accrual of the action. This is the date on which the breach of
contract occurred, not when the damage is suffered.
or on its own motion, to invite the parties to use an ADR process
to resolve the proceedings. In this context, an ADR process is a
mediation, conciliation or other dispute resolution process approved
by the court, but does not include arbitration. If a party refuses or
fails to partake in an ADR process without good reason, the court
can take this into account when deciding any issue of costs (although
it has not imposed such costs penalties to date). The recent case
of Atlantic Shellfish Ltd & anor v Cork County Council & ors
[2015] IECA 283 held that the court should only invite the parties
to consider mediation if it considers it appropriate having regard
to “all of the circumstances of the case” (for example, the nature
and potential expense of the proposed form of ADR or whether the
issues in dispute are amenable to ADR).
Pursuant to section 32 of the Arbitration Act 2010, the High Court
and Circuit Court can adjourn civil proceedings to allow the parties
to consider whether the dispute before the court is capable of being
resolved by arbitration.
4.12 In what factual circumstances can persons that are
not domiciled in your jurisdiction, be brought within
the jurisdiction of your courts either as a defendant or
as a claimant?
As a Member State of the European Union, Ireland is subject to
the rules of jurisdiction as provided for by the recast Brussels
Regulation (Regulation (EU) 1215/2012) (the “Recast Brussels
Regulation”). The Recast Brussels Regulation took effect from
15 January 2015. Previously, the relevant jurisdictional rules were
found in EC Regulation 44/2001 (the “Brussels Regulation”).
As with the previous Brussels Regulation, the general rule under
the Recast Brussels Regulation is that a defendant to proceedings
having an international element should be sued in his state of
domicile, although there are certain exceptions and alternative
grounds on which the court may have jurisdiction.
The most obvious circumstance in which a party which is not
domiciled in Ireland can be brought before the Irish courts is where
the parties have submitted to the exclusive jurisdiction of the Irish
courts. The Recast Brussels Regulation provides that, subject to
certain formalities and specified exceptions, a court in a Member
State will have jurisdiction to hear a dispute where there is a
jurisdiction agreement in favour of that court, even if none of the
parties to the jurisdiction agreement is domiciled in a Member State.
Absent an exclusive jurisdiction clause in favour of the Irish
courts, parties domiciled in a Member State other than Ireland can
nonetheless be sued in Ireland in certain circumstances. Although
Article 4 of the Recast Brussels Regulation provides that a party
“shall” be sued in his country of domicile, proceedings relating to
product liability will often fall within the special rules provided for
in Article 7 of the Recast Brussels Regulation, which provides that,
in the case of a tort, jurisdiction is granted to courts of the state in
which the harmful event occurs. Therefore, if it can be shown that
the harmful event caused by a defective product occurred in Ireland,
a foreign producer may be sued in the Irish courts.
Further, the provisions in relation to exclusive jurisdiction
agreements do not apply to consumers, who must be sued in the
courts of the Member State in which they are domiciled. The
jurisdiction rules relating to consumer contracts are set out inArticles
17 to 19 of the Recast Brussels Regulation. Where a cause of action
in a contractual dispute relates to product liability, a consumer is
entitled to bring the suit in the jurisdiction in which the producer is
domiciled or in the country in which the consumer is domiciled. A
foreign producer can thus be subject to the jurisdiction of the Irish
courts where a consumer using his product is domiciled in Ireland.
Matheson Ireland](https://image.slidesharecdn.com/theinternationalcomparativelegalguidetoproductliability2016-161220151542/85/The-International-Comparative-Legal-Guide-to-Product-Liability-2016-9-320.jpg)
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The International Comparative Legal Guide to: Product Liability 2016
- 1. Addleshaw Goddard LLP Advokatfirma Ræder DA Ali Budiardjo, Nugroho, Reksodiputro Allen & Gledhill LLP Arnold & Porter (UK) LLP Bahas, Gramatidis & Partners Bufete Ocampo, Salcedo, Alvarez del Castillo y Ocampo, S. C. Caspi & Co. Clayton Utz Crown Office Chambers Drinker Biddle & Reath LLP Eversheds LLP Gianni, Origoni, Grippo, Cappelli & Partners Gowling WLG Herbert Smith Freehills LLP Lee and Li, Attorneys-at-Law Matheson McConnell Valdés LLC MILINERS ABOGADOS Y ASESORES TRIBUTARIOS SLP Orrick, Herrington & Sutcliffe LLP Pachiu & Associates Pinheiro Neto Advogados Seth Associates Sidley Austin LLP Squire Patton Boggs Synch Advokat AB Taylor Wessing Tonucci & Partners The International Comparative Legal Guide to: A practical cross-border insight into product liability work Published by Global Legal Group, in association with CDR, with contributions from: 14th Edition Product Liability 2016 ICLG
- 2. WWW.ICLG.CO.UK The International Comparative Legal Guide to: Product Liability 2016 General Chapters: Country Question and Answer Chapters: 1 Recent Developments in European Product Liability – Ian Dodds-Smith & Alison Brown, Arnold & Porter (UK) LLP 1 2 Update on U.S. Product Liability Law – Jana D. Wozniak & Daniel A. Spira, Sidley Austin LLP 7 3 An Overview of Product Liability and Product Recall Insurance in the UK – Anthony Dempster & Howard Watson, Herbert Smith Freehills LLP 17 4 The Practicalities of Managing a Global Recall – Richard Matthews & Fabian Volz, Eversheds LLP 23 5 Horizon Scanning – The Future of Product Liability Risks – Louisa Caswell & Mark Chesher, Addleshaw Goddard LLP 32 6 Albania Tonucci & Partners: Artur Asllani, LL.M. & Ervin Bano 37 7 Australia Clayton Utz: Colin Loveday & Andrew Morrison 44 8 Brazil Pinheiro Neto Advogados: Sérgio Pinheiro Marçal & Laura Beatriz de Souza Morganti 53 9 Canada Gowling WLG: Mary M. Thomson & Nicholas Kluge 60 10 China Squire Patton Boggs (US) LLP: Kelly Liu & Elisa Li 68 11 England & Wales Arnold & Porter (UK) LLP: Ian Dodds-Smith & Alison Brown Crown Office Chambers: Michael Spencer QC 75 12 France Squire Patton Boggs: Carole Sportes & Valérie Ravit 87 13 Germany Taylor Wessing: Henning Moelle & Philipp Behrendt 95 14 Greece Bahas, Gramatidis & Partners: Dimitris Emvalomenos 102 15 Hong Kong Squire Patton Boggs: David Goh & Bindu Janardhanan 109 16 India Seth Associates: Karnika Seth & Amit Seth 116 17 Indonesia Ali Budiardjo, Nugroho, Reksodiputro: Agus Ahadi Deradjat & Herry N. Kurniawan 124 18 Ireland Matheson: Tom Hayes & Michael Byrne 130 19 Israel Caspi & Co.: Norman Menachem Feder & Gad Ticho 141 20 Italy Gianni, Origoni, Grippo, Cappelli & Partners: Daniele Vecchi & Michela Turra 150 21 Japan Orrick, Herrington & Sutcliffe LLP: David E. Case & Shinsuke Yakura 158 22 Mexico Bufete Ocampo, Salcedo, Alvarez del Castillo y Ocampo, S. C.: Aldo Ocampo C. & Jesus Salcedo P. 166 23 Norway Advokatfirma Ræder DA: Ole André Oftebro & Kyrre W. Kielland 172 24 Puerto Rico McConnell Valdés LLC: Manuel Moreda-Toledo & Alejandro J. Cepeda-Díaz 179 25 Romania Pachiu & Associates: Remus Ene & Adelina Somoiag 185 26 Singapore Allen & Gledhill LLP: Dr. Stanley Lai, SC & Amanda Soon 194 27 Spain MILINERS ABOGADOS Y ASESORES TRIBUTARIOS SLP: Belén Arribas Sánchez 204 28 Sweden Synch Advokat AB: Ida Häggström & Vencel Hodák 213 29 Taiwan Lee and Li, Attorneys-at-Law: Patrick Marros Chu & David Tien 220 30 USA Drinker Biddle & Reath LLP: David B. Sudzus & Daniel B. Carroll 228 Contributing Editors Ian Dodds-Smith, Arnold & Porter (UK) LLP and Michael Spencer QC, Crown Office Chambers Sales Director Florjan Osmani Account Directors Oliver Smith, Rory Smith Sales Support Manager Toni Hayward Senior Editor Rachel Williams Chief Operating Officer Dror Levy Group Consulting Editor Alan Falach Group Publisher Richard Firth Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: [email protected] URL: www.glgroup.co.uk GLG Cover Design F&F Studio Design GLG Cover Image Source iStockphoto Printed by Ashford Colour Press Ltd May 2016 Copyright © 2016 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-910083-95-6 ISSN 1740-1887 Strategic Partners Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.
- 3. WWW.ICLG.CO.UK130 ICLG TO: PRODUCT LIABILITY 2016 © Published and reproduced with kind permission by Global Legal Group Ltd, London Chapter 18 Matheson Tom Hayes Michael Byrne Ireland 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: “[F]it 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. Criminal 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 (“CPCC”) 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 CPCC 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 CPCC 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. While preparations have been made to draft legislation to implement the report, it is not possible to say when the proposals will 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 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 ProductsAct 1991 (“the 1991Act”), 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: “[L]iable 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. Tort 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. Contract 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
- 4. ICLG TO: PRODUCT LIABILITY 2016 131WWW.ICLG.CO.UK © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland name, trademark or other distinctive mark, or the person who reconditions the product; ■ the manufacturer’s representative, when the manufacturer is not established in the Community or, if there is no representative established in the Community, the importer of the product; or ■ other professionals in the supply chain, in so far as their activities may affect the safety properties of a product placed on the market. The 2004 Regulations also make distributors who supply or attempt to supply a dangerous product, which they know, or it is reasonable to presume that they should know, is dangerous, guilty of an offence. In this regard, a “distributor” is defined as any professional in the supply chain whose activity does not affect the safety properties of the product. 1.4 In what circumstances is there an obligation to recall products, and in what way may a claim for failure to recall be brought? Under S.9 of the 2004 Regulations, the CPCC is given the power to “take all reasonable measures” to ensure that products placed on the market are safe, including issuing a direction ensuring “the immediate withdrawal of [a] product from the marketplace, its recall from consumers and its destruction in suitable conditions”. Under S.9(2) of the 2004 Regulations in taking this, or any other measure, under the Regulations, the CPCC must act “in a manner proportional to the seriousness of the risk and taking due account of the precautionary principle”. A person who fails to comply with a direction of the CPCC with respect to the recall of products is guilty of a criminal offence and is liable on summary conviction to a fine not exceeding €3,000, or to imprisonment for a term not exceeding three months, or to both. In addition, the common law duty of care imposed by the law of tort (see above) may extend to product recall depending on the circumstances of the particular case. Thus a failure to recall in particular circumstances may be a breach of such duty, giving rise to a civil action. 1.5 Do criminal sanctions apply to the supply of defective products? Yes, under the 2004 Regulations, “producers”, or “distributors”, as defined, may be made criminally liable where unsafe products have been placed on the market. Please see questions 1.1 and 1.3 above for details. 2 Causation 2.1 Who has the burden of proving fault/defect and damage? As a general principle, it is for the injured party to prove the defect to the product and the damage caused. This is stated in S.4 of the 1991 Act and is a general rule of the laws of contract and tort. In tort and contract, the standard of proof is “on the balance of probabilities”, while in criminal cases, the guilt of the accused must be proved “beyond reasonable doubt”. In certain circumstances, particularly in tort, the doctrine of res ipsa loquitur can be applied to, in effect, reverse the burden of proof and place the onus on the defendant to disprove an allegation of “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 with other countries that have put Thalidomide compensation schemes in place. 1.3 Who bears responsibility for the fault/defect? The manufacturer, the importer, the distributor, the “retail” supplier or all of these? Statute As stated above, S.2(1) of the 1991 Act makes the “producer” of the defective product liable in damages caused wholly or partly by the defect in his product. In this regard, S.2(2) of the Act defines “producer” as: ■ the manufacturer or producer of a finished product; ■ the manufacturer or producer of any raw material, or the manufacturer or producer of a component part of a product; ■ in the case of products of the soil, of stock-farming and of fisheries and game, which have undergone initial processing, the person who carried out such processing; ■ any person who, by putting his name, trademark 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; ■ 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 ■ the supplier of the product where the manufacturer of the product cannot be identified through the plaintiff taking reasonable steps to establish his identity and where the supplier fails to identify the manufacturer of the product within a reasonable amount of time of a request being made. Tort Under the law of tort, the test to be applied is whether a particular individual, e.g. the manufacturer, retailer, supplier or importer, owes a duty of care towards the injured party. If such a duty is owed and has been breached, that person is capable of having responsibility. It is clear that the manufacturer of a product will owe a duty of care to all those who may foreseeably be injured or damaged by his product. The same will apply to retailers, suppliers and importers, though the scope of their duty will typically be narrower than that of manufacturers, extending to, for example, a duty to ensure that their stock is not out-of-date. In practice, a plaintiff will not be required to choose which of a number of possible defendants to sue, and any or all potential tortfeasors are likely to be sued. Contract Under the 1893 Act and the 1980 Act, the seller will, subject to certain conditions and exemptions, have a contractual responsibility to the buyer in respect of faults or defects. Criminal In terms of the criminal law, the 2004 Regulations make a “producer” who places or attempts to place an unsafe product on the market guilty of an offence. The 2004 Regulations define a “producer” as: ■ the manufacturer of a product and any other person presenting himself as the manufacturer by affixing to the product his Matheson Ireland
- 5. WWW.ICLG.CO.UK132 ICLG TO: PRODUCT LIABILITY 2016 © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland and Contribution may be served by each of the defendants on their co-defendants and ultimate liability (or an apportionment thereof), if any, will be decided by a court at trial of the issue. Market-share liability has not, to date, been applied by the Irish courts in product liability cases. 2.4 Does a failure to warn give rise to liability and, if so, in what circumstances? What information, advice and warnings are taken into account: only information provided directly to the injured party, or also information supplied to an intermediary in the chain of supply between the manufacturer and consumer? Does it make any difference to the answer if the product can only be obtained through the intermediary who owes a separate obligation to assess the suitability of the product for the particular consumer, e.g. a surgeon using a temporary or permanent medical device, a doctor prescribing a medicine or a pharmacist recommending a medicine? Is there any principle of “learned intermediary” under your law pursuant to which the supply of information to the learned intermediary discharges the duty owed by the manufacturer to the ultimate consumer to make available appropriate product information? As in other Member States, Ireland’s membership of the European Union has necessitated the introduction of regulations in many industries stipulating specific information and warnings which must be provided to consumers as to the nature, ingredients/contents and safety of products. Failure to comply with these regulations can have consequences for product manufacturers and distributors. Such consequences vary depending on the provisions of the individual regulations. Specific statutory requirements aside, however, the issue of whether warnings must be provided to consumers falls within the question of compliance with the standard of reasonable care under the Irish law of tort. It should be noted that an increased level of awareness in society of product safety, and increased expectations on the provision of product information, have made it more likely in recent times that the absence of an express warning in respect of a danger attaching to a product will be deemed to constitute negligence. As further evidence of the pro-consumer approach within this jurisdiction, the relevance of intermediate examination has been consistently undermined by the law over the years. Formerly, it was not considered negligent to allow a potentially dangerous product into circulation if the danger could reasonably be discovered by way of intermediate examination by the consumer or a middleman in the chain of distribution. However, S.34(2)(f) of the Civil Liability Act 1961 provides that, while the possibility of intermediate examination may be taken into account as a factor in determining negligence, it is no longer conclusive. Whether the release of the product is seen as negligent will, therefore, depend on all the circumstances. While the concept of a “learned intermediary” has not yet received specific judicial examination in Ireland, it is likely that the fact that an examining intermediary has some expertise in the composition and safety of the product could be pleaded to the benefit of the manufacturer in arguing that the release was not negligent in all the circumstances. As regards criminal law, S.6 of the 2004 Regulations provides that a producer must provide consumers with “all relevant information” relating to a product which it has put on the market to “enable [the consumer] to assess the risks inherent in the product throughout the normal or reasonably foreseeable period of its use, where such risks are not immediately obvious without adequate warnings and to take precautions against those risks”. In addition, powers are granted to negligence. Since the 1991 Act operates a system of strict liability and is thus unconcerned with the negligence or otherwise of the defendant, res ipsa loquitur will have no such application in the context of a claim relying solely on the provisions of the 1991 Act. In practice, however, for this reason, claims will seldom, if ever, be brought relying solely on the provisions of the 1991 Act. In criminal cases, it is for the prosecution to prove the guilt of the accused. Under the 2004 Regulations, the prosecutor in such offences is the CPCC. 2.2 What test is applied for proof of causation? Is it enough for the claimant to show that the defendant wrongly exposed the claimant to an increased risk of a type of injury known to be associated with the product, even if it cannot be proved by the claimant that the injury would not have arisen without such exposure? Is it necessary to prove that the product to which the claimant was exposed has actually malfunctioned and caused injury, or is it sufficient that all the products or the batch to which the claimant was exposed carry an increased, but unpredictable, risk of malfunction? S.4 of the 1991 Act provides that the injured person must prove the damage, the defect and the causal relationship between the two. In general, wrongful exposure to an increased risk of injury will not, in itself, provide a claimant with a cause of action. The causal relationship to a concrete loss or injury must be proven. If a claimant cannot prove, on the balance of probabilities, that an injury would not have occurred without exposure to the product in question, he/ she has not discharged the civil burden of proof on causation. However, the recent CJEU judgment C-503/13 and C-504/13, Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt – and Others has the potential to expand the scope of liability beyond what was previously understood. This case held that where it is found that products belonging to the same group or forming part of the same production series have a potential defect, such a product may be classified as defective without there being any need to establish that the particular product in question has such a defect. This is a significant decision and it remains to be seen how it will be interpreted by the Irish courts, whether they will apply the decision only in cases of high risk product groups (such as implanted medical devices as in the Boston Scientific case) or whether they will take a broader approach. As stated above, where the claimant encounters problems in proving a causal relationship, the doctrine of res ipsa locquitur may be of assistance. 2.3 What is the legal position if it cannot be established which of several possible producers manufactured the defective product? Does any form of market-share liability apply? As stated above, under S.2(3) of the 1991Act, where the producer of a product cannot be identified through the plaintiff taking reasonable steps, the supplier of the product may be treated as its producer unless he informs the plaintiff of the identity of the producer, or of the person who supplied him with the product, “within a reasonable time” of such a request being made. In terms of the law of tort, it would be usual, in circumstances where a plaintiff cannot, with absolute certainty, identify the producer of a defective product, that the plaintiff would institute proceedings against all parties whom he reasonably suspects could have been responsible for its manufacture. Notices of Indemnity Matheson Ireland
- 6. ICLG TO: PRODUCT LIABILITY 2016 133WWW.ICLG.CO.UK © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland misrepresentation and duress will affect the validity of a contract. Furthermore, “illegal” contracts are invalid or, in some cases, may have the offending provision severed. Inadequate capacity to contract may also affect the validity of a contract. Criminal Under S.5 of the 2004 Regulations, a product shall be deemed safe if it conforms with any specific rules of the law of the State laying down the health and safety requirements which the product must satisfy in order to be marketed, or with voluntary Irish standards transposing European standards. However, notwithstanding this, the CPCC may take “appropriate measures” to impose restrictions on a product being placed on the market, or to require its withdrawal or recall, where there is evidence that, despite such conformity, the product is dangerous. 3.2 Is there a state of the art/development risk defence? Is there a defence if the fault/defect in the product was not discoverable given the state of scientific and technical knowledge at the time of supply? If there is such a defence, is it for the claimant to prove that the fault/defect was discoverable or is it for the manufacturer to prove that it was not? Yes (see question 3.1 above), under the provisions of the 1991 Act. Where the defence is raised by a manufacturer, the burden of proof lies with the manufacturer to prove the state of scientific and technical knowledge at the relevant time, and that the fault/defect was not discoverable. 3.3 Is it a defence for the manufacturer to show that he complied with regulatory and/or statutory requirements relating to the development, manufacture, licensing, marketing and supply of the product? Yes, under S.6 of the 1991 Act, where this compliance can be shown to be the cause of the defect itself, this will be a defence to any cause of action based upon the 1991 Act. It may not necessarily, however, be a defence to a cause of action based upon breach of duty or breach of contract. With respect to criminal law, please see question 3.1 above. While compliance with regulatory and statutory requirements will, prima facie, be taken to show that the product is safe, the CPCC is given the power, under the 2004 Regulations, to take “appropriate measures” where there is evidence that the product is, nonetheless, dangerous. 3.4 Can claimants re-litigate issues of fault, defect or the capability of a product to cause a certain type of damage, provided they arise in separate proceedings brought by a different claimant, or does some form of issue estoppel prevent this? Provided they arise in separate proceedings brought by a different claimant, findings on issues of fact, as opposed to issues of law, are of no precedent value and are not binding in a court. Issues of fault, defect and capability of a product to cause damage are issues of fact and unless the parties, of their own volition, or the court, by order, consolidates two or more claims into one set of proceedings, findings of fact will not be binding in respect of other claimants. the CPCC under S.9 of the 2004 Regulations to issue a direction that a particular product be marked with a risk warning. 3 Defences and Estoppel 3.1 What defences, if any, are available? Under S.6 of the 1991 Act, a Producer is freed from liability under the Act if he proves: ■ that he did not put the product into circulation; ■ that it is probable that the defect causing the damage came into being after the product was put into circulation by him; ■ that the product was not manufactured for a profit-making sale; ■ that the product was neither manufactured nor distributed in the course of his business; ■ that the defect is due to compliance of the product with mandatory regulations issued by the public authorities; ■ that the state of scientific and technical knowledge at the time when the product was put into circulation was not such as to enable the defect to be discovered (“State of the Art” Defence); or ■ in the case of a manufacturer of a component of the final product, that the defect is attributable to the design of the product or to the instructions given by the product manufacturer. Furthermore, if the damage was caused partly by a defect in the product, and partly by the fault of the injured person, or a person for whom the injured person was responsible, the provisions of the Civil Liability Act 1961 in relation to contributory negligence apply (see below). Tort Contributory Negligence In Ireland, this defence is regulated by the Civil Liability Act, 1961 (“the 1961 Act”), which provides, with some exceptions, that where the plaintiff is partly at fault, damages will be reduced in proportion to that fault. It has been held that the fault necessary is to be equated with blameworthiness and not to the extent of the causative factors moving from each side. Equally, a plaintiff will be responsible for the acts of a person for whom he is vicariously liable (imputed contributory negligence). Finally, failure by a plaintiff to mitigate damage is also considered to be contributory negligence. Voluntary Assumption of Risk (Volenti Non Fit Injuria) This defence is regulated by S.34(1)(b) of the 1961Act. Adefendant may escape liability in two cases: ■ where he shows that by contract he is not liable (though the contract will be construed strictly against the party claiming the benefit of the exception); or ■ where he shows that, before the act, the plaintiff agreed to waive his legal rights in respect of it. In both cases, the burden of proof is on the defendant to prove that the defence applies. In practice, this defence is difficult to prove. Contract To have a workable contract, the basic rules of contract formation must be complied with, i.e. there must be an offer, acceptance and consideration. The absence of these essential elements can act as a defence to an action in contract. Likewise, mistake, Matheson Ireland
- 7. WWW.ICLG.CO.UK134 ICLG TO: PRODUCT LIABILITY 2016 © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland evidence or to agree on a single expert to provide evidence to the court. The judge alone must make the decision in any case. 4.3 Is there a specific group or class action procedure for multiple claims? If so, please outline this. Is the procedure ‘opt-in’ or ‘opt-out’? Who can bring such claims e.g. individuals and/or groups? Are such claims commonly brought? There is no mechanism under Irish procedural rules for a class action. Thus, litigation is conducted by individual named parties. There is a tendency in Irish multi-party litigation to take one or more test cases, whereby a small number of cases are selected from the group and progressed to trial. However, in the absence of agreement (see question 3.1 above), these cases are not binding on the parties in other cases. Order 18 of the Rules of the Superior Courts provides that a plaintiff may apply to court to unite in the same action several causes of action if they can be conveniently disposed of together by the court and they meet certain limited criteria. Order 49 of the Rules of the Superior Courts provides that causes or matters pending in the High Court may be consolidated by order of the court on the application of any party. The Law Reform Commission published a Consultation Paper in 2005 on Multi-Party Litigation and has recommended the introduction of a procedure to be called a Multi-PartyAction (MPA). The private multi-party litigation would operate as a flexible tool to deal collectively with cases that are sufficiently similar and should be introduced by way of Rules of court. The MPA procedure should operate on the basis of an opt-in system whereby individual litigants will be included in the group only where they decide to join the group action. This is different to the US class action approach. A single legal representative would be nominated by the MPA members to deal with the common issue arising within the MPA. As of yet, however, there have been no steps taken by the legislature to implement these recommendations. 4.4 Can claims be brought by a representative body on behalf of a number of claimants e.g. by a consumer association? No. Representative and consumer associations will generally lack the necessary locus standi to bring such actions. 4.5 How long does it normally take to get to trial? Following the enactment of the Personal Injuries Assessment Board Act 2003, any party wishing to bring personal injury proceedings must first submit their claim to the Injuries Board (save for certain exceptions). This Injuries Board is an independent body set up by the government to assess the level of compensation payable to those who have suffered personal injuries. If the respondent to a claim notifies the Injuries Board that they intend to rely upon legal issues to defend their position, the Injuries Board will serve the claimant with an Authorisation, thereby enabling the claimant to issue proceedings before the courts. The length of time between service of proceedings and the actual hearing of the matter depends to a large extent on how quickly the procedural steps and delivery of pleadings are complied with by both parties. In a straightforward product liability personal injuries action, with no interlocutory applications, a hearing date might be obtained within one year. In reality, however, most matters are not heard for a period of 18 months to two years from service of 3.5 Can defendants claim that the fault/defect was due to the actions of a third party and seek a contribution or indemnity towards any damages payable to the claimant, either in the same proceedings or in subsequent proceedings? If it is possible to bring subsequent proceedings is there a time limit on commencing such proceedings? Yes, in such circumstances where a defendant wishes to claim an indemnity or contribution against a person who is not a party to the proceedings, they may apply to join that person as a third party to the proceedings. This third party procedure can be availed of where the plaintiff’s claim against the defendant coincides to some extent with a similar claim by the defendant as against the third party. If a defendant wishes to join a third party to the proceedings, they must take steps to do so “as soon as is reasonably possible”, and there is extensive case law in relation to what is considered to be a reasonable timeframe. Assuming the plaintiff’s claim against the third party would not be statute-barred at the time the application is being made to join a third party, the plaintiff can indicate that they wish the third party to be joined to the proceedings as a co-defendant. If the plaintiff does take this step, it is open to the existing defendant to serve a Notice of Indemnity or Contribution on the “new defendant” which would be similar in its effect to a Third Party Notice. If a defendant fails to bring third party proceedings as soon as is reasonably possible, that defendant may still bring separate proceedings for contribution. However, the court has discretion to refuse such an order for contribution, particularly if it considers that such proceedings would impose an unnecessary and unreasonable burden of costs on the proposed contributor. 3.6 Can defendants allege that the claimant’s actions caused or contributed towards the damage? Yes, it is open to a defendant to plead a defence of contributory negligence against a plaintiff, i.e. that the plaintiff’s own actions or negligence caused, or contributed to, the damage which he or she suffered. If accepted by the court, the plea of contributory negligence will reduce any damages awarded to the plaintiff by a percentage in proportion to the percentage fault deemed to have been involved on the part of the plaintiff. For more, please see question 3.1 above. 4 Procedure 4.1 In the case of court proceedings is the trial by a judge or a jury? In civil cases for product liability, cases are heard by a judge, sitting without a jury. As regards criminal liability, since the 2004 Regulations provide for summary prosecution only, it is not open to the accused to opt for a trial by jury. These cases will, therefore, also be heard by a judge sitting without a jury. 4.2 Does the court have power to appoint technical specialists to sit with the judge and assess the evidence presented by the parties (i.e. expert assessors)? The court does not appoint technical specialists to sit with the judge. It is up to the parties to an action to either adduce their own expert Matheson Ireland
- 8. ICLG TO: PRODUCT LIABILITY 2016 135WWW.ICLG.CO.UK © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland the action. In other cases, it is for the parties to decide between them whether to voluntarily exchange expert reports and/or witness statements. 4.10 What obligations to disclose documentary evidence arise either before court proceedings are commenced or as part of the pre-trial procedures? As a general rule, discovery of documentary evidence may only be sought by either party once pleadings have closed, i.e. once a defence has been delivered by the defendant. Discovery may be sought by a party to the proceedings against any other party to the proceedings, against third parties or against non-parties, subject to proof of relevance and necessity. Discovery should be sought firstly on a voluntary basis and, if voluntary discovery is refused, it can then be sought by way of motion if necessary. Discovery relates to all documentation in the power, possession or procurement of a party to the proceedings (or non-party) which may enable the other party to advance their case. Discovery prior to the institution of proceedings will only be granted in very exceptional circumstances (Norwich Pharmacal Orders). 4.11 Are alternative methods of dispute resolution required to be pursued first or available as an alternative to litigation e.g. mediation, arbitration? Article 11 of the 1991 Act states that this Act shall not affect any rights which an injured person may have under any enactment or under any rule of law. This may allow for the possibility that if a claim is based on contract and there is a valid arbitration clause, the parties may seek a remedy through arbitration rather than instigating proceedings in the court. In the case of personal injuries claims, S.15, 17 and 18 of the Civil Liability and CourtsAct 2004 (the “2004Act”) may also be invoked. Under S.15, the court may, at the request of any party to a personal injuries action prior to trial, direct that the parties to the action hold a mediation conference to discuss and attempt to settle the action. There has recently been a successful appeal against such a direction, on the basis that mediation would not have actually assisted in reaching a settlement, which is a statutory pre-condition for a S.15 order (Ryan v Walls Construction Ltd [2015] IECA 214). Under a S.15 mediation, a nominated chairperson or a court-appointed one will report on the mediation conference and note any settlement made to the court. Where one party fails to attend, the court will take this into account when making a final award for costs. To further facilitate settlement prior to trial, S.17 of the 2004 Act provides that both the plaintiff and defendant must make an offer of settlement to each other at any time between the issue of proceedings and before the expiration of two weeks after service of the Notice of Trial. Where no settlement is agreed, the judge may take into account these offers and the reasonableness of the parties’ conduct when awarding costs. Finally, S.18 of the 2004 Act provides for pre-trial hearings for the purposes of determining what matters relating to the action are in dispute. There has been limited use of both mediation conferencing and pre-trial hearings to date. There has been significant growth in the use of mediation generally in Ireland in recent years. Either party can suggest mediation as a means of attempting to resolve the dispute. Order 56A of the Rules of the Superior courts, as inserted by SI 502/2010, allows the High Court, either on the application of any of the parties to a dispute proceedings. In more complex cases or cases where procedural time limits have not been complied with and/or a number of interlocutory applications (for example, for discovery, particulars or interrogatories) have been made, it is not unusual for a case not to be heard for three years or more. The Commercial Court, which is a division of the Irish High Court dealing with commercial disputes with a value in excess of €1 million, has procedures to streamline litigation and can lead to a much speedier conclusion of cases (although it does not apply to personal injury litigation). 4.6 Can the court try preliminary issues, the result of which determine whether the remainder of the trial should proceed? If it can, do such issues relate only to matters of law or can they relate to issues of fact as well, and if there is trial by jury, by whom are preliminary issues decided? Yes. Orders 25 and 34 of the Rules of the Superior Courts provide for the preliminary trial of an issue of law where such is deemed expedient by the court for the saving of costs and/or time. 4.7 What appeal options are available? First instance rulings in all civil cases may be appealed to a higher court. Following the commencement of the Court of Appeal Act 2014, decisions of the High Court may be appealed to the newly established Court of Appeal. In limited circumstances, decisions of the Court of Appeal and High Court may be appealed to the Supreme Court. The Supreme Court will hear such appeals only if it raises a matter of general public importance or is necessary in the interests of justice. Directions of the CPCC under the 2004 Regulations with respect to product recall or any other measures adopted may be appealed to the Circuit Court within 21 days of receipt of the direction. An appeal to the High Court on foot of the decision of the Circuit Court on the direction may be appealed to the High Court on a question of law only. 4.8 Does the court appoint experts to assist it in considering technical issues and, if not, may the parties present expert evidence? Are there any restrictions on the nature or extent of that evidence? The parties are free to appoint their own experts to put forward their opinion as evidence at trial. Such experts are never appointed by the court. Such experts are, however, entitled to be questioned on their evidence by the judge, and, indeed, cross-examined by the opposing party. General evidentiary principles apply to their evidence, so that, e.g., it must be relevant to the issues at hand and within their field of expertise. 4.9 Are factual or expert witnesses required to present themselves for pre-trial deposition and are witness statements/expert reports exchanged prior to trial? Experts are not required to present themselves for pre-trial deposition. In High Court personal injury actions, there is an obligation on the parties under SI 391/1998 to exchange all written expert reports (but not statements of fact witnesses) in advance of the hearing of Matheson Ireland
- 9. WWW.ICLG.CO.UK136 ICLG TO: PRODUCT LIABILITY 2016 © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland Special jurisdiction rules apply where a party is domiciled in a Third Country (Non-Member State). Articles 33 and 34 of the Recast Brussels Regulation give discretion to Member State courts to stay proceedings in favour of proceedings pending before the courts of a Third State, subject to satisfying certain conditions. However, a degree of uncertainty remains where the provisions of Articles 33 and 34 are not met. Following the decisions of the European Court of Justice in Owusu v Jackson (Case C-281/02) and Group Josi Reinsurance Co SA v Universal General Insurance Co Ltd (Case C-412/98), which were made under the previous Brussels Regulation, once an action comes within the scope of the Recast Brussels Regulation, a national court cannot decline jurisdiction on the ground of forum non conveniens. It is arguable that, save as provided for in Articles 33 and 34, Owusu and Group Josi continue to apply. Given this uncertainty, it is likely that Articles 33 and 34 will be the subject of further clarification. 5 Time Limits 5.1 Are there any time limits on bringing or issuing proceedings? Statute Under S.7(1) of the 1991 Act, a limitation period of three years applies to proceedings for the recovery of damages under the Act. The limitation period runs for three years from the date on which the cause of action accrued. The limitation period under the 1991 Act has been reduced to two years in one respect following the enactment of the 2004 Act and the subsequent decision of the Irish High Court in O’hAonghusa v DCC PLC & Others [2011] IEHC 300. Where the limitation period runs from the date on which the plaintiff became aware, or should reasonably have become aware, of the damage, the action must be brought within two years of this date. This is due to the “knowledge” provisions of the Statute of Limitations (Amendment) Act 1991 being amended by the 2004 Act. Interestingly, S.7(2)(a) provides for a “long stop” provision, which extinguishes the rights conferred on the injured party pursuant to the 1991 Act on the expiry of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer. Tort and Contract In actions in tort or contract, the various time limits within which proceedings must be instituted are laid down in the Statute of Limitations 1957 and the Statute of Limitations (Amendment) Acts 1991 and 2000. In an action for tort, these provisions set a general time limit of six years from the date on which the cause of action accrued − that is, the date on which the negligent act occurred. In an action claiming damages for negligence, nuisance or breach of duty where the plaintiff claims damages for personal injuries, the limitation period is shorter. This was formerly three years from the date of accrual of the action or the date on which he became aware of the accrual of the action, whichever is later (i.e. the date of discoverability is relevant). However, the Civil Liability and Courts Act 2004 reduced the limitation period for personal injuries actions to two years for dates of accrual/knowledge on or after 31 March 2005. In contract, there is a limitation period of six years from the date of the accrual of the action. This is the date on which the breach of contract occurred, not when the damage is suffered. or on its own motion, to invite the parties to use an ADR process to resolve the proceedings. In this context, an ADR process is a mediation, conciliation or other dispute resolution process approved by the court, but does not include arbitration. If a party refuses or fails to partake in an ADR process without good reason, the court can take this into account when deciding any issue of costs (although it has not imposed such costs penalties to date). The recent case of Atlantic Shellfish Ltd & anor v Cork County Council & ors [2015] IECA 283 held that the court should only invite the parties to consider mediation if it considers it appropriate having regard to “all of the circumstances of the case” (for example, the nature and potential expense of the proposed form of ADR or whether the issues in dispute are amenable to ADR). Pursuant to section 32 of the Arbitration Act 2010, the High Court and Circuit Court can adjourn civil proceedings to allow the parties to consider whether the dispute before the court is capable of being resolved by arbitration. 4.12 In what factual circumstances can persons that are not domiciled in your jurisdiction, be brought within the jurisdiction of your courts either as a defendant or as a claimant? As a Member State of the European Union, Ireland is subject to the rules of jurisdiction as provided for by the recast Brussels Regulation (Regulation (EU) 1215/2012) (the “Recast Brussels Regulation”). The Recast Brussels Regulation took effect from 15 January 2015. Previously, the relevant jurisdictional rules were found in EC Regulation 44/2001 (the “Brussels Regulation”). As with the previous Brussels Regulation, the general rule under the Recast Brussels Regulation is that a defendant to proceedings having an international element should be sued in his state of domicile, although there are certain exceptions and alternative grounds on which the court may have jurisdiction. The most obvious circumstance in which a party which is not domiciled in Ireland can be brought before the Irish courts is where the parties have submitted to the exclusive jurisdiction of the Irish courts. The Recast Brussels Regulation provides that, subject to certain formalities and specified exceptions, a court in a Member State will have jurisdiction to hear a dispute where there is a jurisdiction agreement in favour of that court, even if none of the parties to the jurisdiction agreement is domiciled in a Member State. Absent an exclusive jurisdiction clause in favour of the Irish courts, parties domiciled in a Member State other than Ireland can nonetheless be sued in Ireland in certain circumstances. Although Article 4 of the Recast Brussels Regulation provides that a party “shall” be sued in his country of domicile, proceedings relating to product liability will often fall within the special rules provided for in Article 7 of the Recast Brussels Regulation, which provides that, in the case of a tort, jurisdiction is granted to courts of the state in which the harmful event occurs. Therefore, if it can be shown that the harmful event caused by a defective product occurred in Ireland, a foreign producer may be sued in the Irish courts. Further, the provisions in relation to exclusive jurisdiction agreements do not apply to consumers, who must be sued in the courts of the Member State in which they are domiciled. The jurisdiction rules relating to consumer contracts are set out inArticles 17 to 19 of the Recast Brussels Regulation. Where a cause of action in a contractual dispute relates to product liability, a consumer is entitled to bring the suit in the jurisdiction in which the producer is domiciled or in the country in which the consumer is domiciled. A foreign producer can thus be subject to the jurisdiction of the Irish courts where a consumer using his product is domiciled in Ireland. Matheson Ireland
- 10. ICLG TO: PRODUCT LIABILITY 2016 137WWW.ICLG.CO.UK © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland 6 Remedies 6.1 What remedies are available e.g. monetary compensation, injunctive/declaratory relief? In Ireland, damages are usually by lump sum payment, rather than by annuity or smaller payment over a period of time. Damages are awarded to place the injured party back in the position he would have been in had the wrong not occurred. There are two main categories of damages, special and general damages. Special damages or out-of-pocket expenses compensate for actual pecuniary loss suffered in the past and to be suffered in the future, for example, loss of earnings. These are not recoverable unless proven, or agreed between the parties. This type of damages is usually formulated on the basis of actual expense and liabilities incurred up to the date of trial and future loss, the estimated anticipated loss being usually based on actuarial evidence. General damages compensate for non-pecuniary loss both present and future, such as pain and suffering or loss of life expectation. General damages can be divided into two figures, one representing pain and suffering up to the trial, and another figure for pain and suffering in the future. However, some lower courts will not make this division and simply award a single global figure. The award of damages is at the discretion of the judge, considering all the evidence and medical reports, which are comparatively high in Ireland by European standards. In exceptional circumstances, exemplary/punitive or aggravated damages may also be awarded. Under S.54 of the Personal Injuries Assessment Board Act 2003, one of the principal functions of the Injuries Board is to prepare and publish a document known as the Book of Quantum, containing general guidelines as to the amounts that may be awarded or assessed in respect of specified types of injury, S.54(1)(b). S.22 of the 2004 Act states that the court shall, in assessing damages in a personal injuries action, have regard to the Book of Quantum. S.22(2) does allow the court to take other matters into account when assessing damages in a personal injuries action. The General Scheme of the Civil Liability (Amendment) Bill proposes that a court be allowed to provide for index linked annual payments to persons who have suffered catastrophic injuries. However, this bill is still in an early stage. 6.2 What types of damage are recoverable e.g. damage to the product itself, bodily injury, mental damage, damage to property? Statute S.1(1) of the 1991 Act defines “damage” as: ■ death or personal injury; or ■ loss of, damage to, or destruction of any item of property other than the defective product itself, provided that the item of property: ■ is of a type ordinarily intended for private use or consumption; and ■ was used by the injured person mainly for his own private use or consumption. It is interesting to note that this definition excludes damage to the product itself, preferring to leave such claims to the law of tort. The courts have the discretion to strike out proceedings where there has been an inordinate and inexcusable delay or want of prosecution on the part of the plaintiff and the defendant has suffered prejudice as a result of this, so as to make it unfair to allow the case to proceed. In December 2011, the Law Reform Commission published a report and draft bill on the limitation of actions in respect of all claims (except those relating to land). The report recommends a uniform basic limitation period for ‘common law actions’, which would include actions in tort and contract, of two years, to run from the date that the claimant knew or ought to have known of the cause of action. ‘Knowledge’ includes both actual and constructive knowledge. The report recommends the introduction of a uniform ultimate limitation period of 15 years to run from the date of the act or omission giving rise to the cause of action. It also recommends that this period should apply to personal injuries actions, and that there should be a statutory discretion to extend or disapply the ultimate limitation period. These proposals have not yet been implemented. Criminal As regards criminal sanctions, the 2004 Regulations do not provide for a period within which prosecutions must be brought. However, the general period applicable to summary offences is six months. 5.2 If so, please explain what these are. Do they vary depending on whether the liability is fault based or strict? Does the age or condition of the claimant affect the calculation of any time limits and does the Court have a discretion to disapply time limits? There are special limitation rules concerning persons who are under a disability: ■ infants; ■ persons of unsound mind; ■ convicts subject to the operation of the Forfeiture Act, 1870, in whose cases no administrator or curator has been appointed under that Act; and ■ plaintiffs of sexual abuse, committed while they were underage, or suffering from consequent psychological injury that impaired them from bringing an action. Furthermore, in proceedings in which the Liability for Defective Products Act 1991 is pleaded, the ‘Long Stop Date’ of ten years from the date the product is put into circulation by the producer would apply as per S.7(2)(a) of the 1991 Act. Fraud on the part of the defendant may also prolong limitation periods. No proceedings are maintainable in respect of any cause of action which has survived against the estate of a deceased person unless the proceedings were commenced within the correct limitation period and were pending at the date of his death; or that the proceedings were commenced within the correct limitation period or within two years after his death, whichever period first expires. The court does not have discretion to disapply time limits statutorily imposed. 5.3 To what extent, if at all, do issues of concealment or fraud affect the running of any time limit? In accordance with S.71(1) of the Statute of Limitations 1957, where there has been concealment or fraud, the limitation period does not begin to run until the plaintiff has discovered the fraud or could, with reasonable diligence, have discovered it. Therefore, issues of concealment or fraud may prolong limitation periods. Matheson Ireland
- 11. WWW.ICLG.CO.UK138 ICLG TO: PRODUCT LIABILITY 2016 © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland The District Court Rules provide for the lodgement of money in satisfaction of a plaintiff’s action, with or without acknowledging liability. Where the plaintiff is a minor or under a disability, a Notice of Motion must be filed and served seeking to have their acceptance approved by a judge. Similarly, a minor or a person under a disability seeking leave to accept a lodgement or tender offer in the Circuit Court will have to make an application by way of Notice of Motion and grounding Affidavit. The acceptance of a lodgement or tender offer in the High Court is governed by Order 22, rule 10(1) Rules of the Superior Courts by an ex parte application on Motion grounded on Affidavit. As there is no provision for group or class actions in this jurisdiction, no specific rules apply. 6.7 Can Government authorities concerned with health and social security matters claim from any damages awarded or settlements paid to the Claimant without admission of liability reimbursement of treatment costs, unemployment benefits or other costs paid by the authorities to the Claimant in respect of the injury allegedly caused by the product. If so, who has responsibility for the repayment of such sums? The Social Welfare and Pensions Act 2013, which commenced with effect from 1 August 2014, introduced the Recovery of Certain Benefits and Assistance Scheme (the “Scheme”). The Scheme requires a “compensator”, being the party paying compensation to a plaintiff, to reimburse the Department of Social Protection for certain Specified Benefits, e.g. illness benefit or disability allowance, which were paid to the plaintiff by the Department in respect of the injury being compensated. The compensator is the party responsible for ensuring compliance with the Scheme. Some private insurance companies can seek to be reimbursed when fees paid by them are later recovered by the plaintiffs in a court award or settlement. 7 Costs / Funding 7.1 Can the successful party recover: (a) court fees or other incidental expenses; (b) their own legal costs of bringing the proceedings, from the losing party? Yes. The general rule is that “costs follow the event”. The judge has full discretion in this matter, however. Costs will include lawyer costs, court fees and incidental expenses, necessarily incurred in the prosecution or defence of the action. In criminal prosecutions under the 2004 Regulations, the CPCC will recover the costs of a successful prosecution from the convicted party, including the costs of investigations and detention of products, unless, under S.21 of the Regulations, the court is satisfied that there are “special and substantial reasons” for not ordering the recovery of these costs. 7.2 Is public funding e.g. legal aid, available? There exists a civil legal aid scheme in Ireland, but limited funding would only very rarely be made available for personal injuries actions. It should also be noted that the final line of the definition above excludes damage to property used in the course of a trade, business or profession. “Damage” under the 1991 Act includes damage for pain and suffering caused by the defective product. Tort and Contract The laws of tort and contract allow an injured party to claim damages for death or personal injury caused by the defective product, as well as for pain and suffering (both physical and mental), damage to property and, in contrast to the 1991 Act, for damage to the product itself. 6.3 Can damages be recovered in respect of the cost of medical monitoring (e.g. covering the cost of investigations or tests) in circumstances where the product has not yet malfunctioned and caused injury, but it may do so in future? There is no Irish precedent for the court to allow damages to be recovered in such circumstances and it is of significance that the Supreme Court has disallowed the recovery of damages in what have been referred to as asbestos “worried well” cases − i.e. cases where claimants sued for damages for mental distress in respect of an apprehension of injury or illness arising from having come in contact with asbestos in the past, where there was no evidence of actual injury or illness. However, given the Boston Scientific decision (discussed at question 2.2), it is possible that the broad definitions of “damage” and “defect” applied by the CJEU will be used to argue that the costs of medical monitoring are recoverable, particularly in cases of implanted medical devices. 6.4 Are punitive damages recoverable? If so, are there any restrictions? Punitive damages may be awarded in exceptional circumstances. This would include, e.g., circumstances where there has been a deliberate and conscious violation of rights. In Ireland, awards of punitive damages tend to be in fractions of the general damage award, rather than in multiples. 6.5 Is there a maximum limit on the damages recoverable from one manufacturer e.g. for a series of claims arising from one incident or accident? No. The ordinary jurisdictional rules of the courts apply. There is no upper limit on the amount of damages which can be awarded by the High Court against a single manufacturer. However, S.3 of the 1991 Act does provide for a minimum threshold of damages, stating that the provisions of the Act will apply only where damage exceeding €444.41 in value has been suffered by the injured party. This provision was clearly motivated by a fear that the strict liability provisions of the Act might release a rush of trivial claims. 6.6 Do special rules apply to the settlement of claims/ proceedings e.g. is court approval required for the settlement of group/class actions, or claims by infants, or otherwise? Claims can be settled at any time prior to and during a court hearing. Where a plaintiff is a minor or is under a disability, leave of the court is required before an action is settled. Matheson Ireland
- 12. ICLG TO: PRODUCT LIABILITY 2016 139WWW.ICLG.CO.UK © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland ordinary costs. A person who assists another to maintain or defend proceedings without having a bona fide interest acts unlawfully and contrary to public policy and cannot enforce such an agreement. 7.6 In advance of the case proceeding to trial, does the Court exercise any control over the costs to be incurred by the parties so that they are proportionate to the value of the claim? No. However, if at the conclusion of proceedings an order is made allowing one party to recover their legal costs from another, the party who has been ordered to pay can require that the costs be “taxed” (i.e., reviewed and independently adjudicated upon by a “Taxing Master”). In deciding whether or not to make a court order, particularly in the discovery process, a court may consider the proportionality of the costs of fulfilling that order. 8 Updates 8.1 Please provide, in no more than 300 words, a summary of any new cases, trends and developments in Product Liability Law in your jurisdiction. The Competition and Consumer Protection Act 2014 created the newly formed Competition and Consumer Protection Commission (“CCPC”). On 31 October 2014, the new agency took over the product safety role of the former National Consumer Agency under the 2004 Regulations, including the responsibility for taking prosecutions and ordering product recalls. The CCPC has a broad mandate for conducting market surveillance in relation to the safety of products under various EU Directives. The Boston Scientific CJEU decision, as discussed at questions 2.2 and 6.3, is significant, although its implications are yet to be explored by the Irish courts. 7.3 If so, are there any restrictions on the availability of public funding? Yes. The applicant must satisfy financial criteria, i.e. a means test, must have reasonable grounds for proceeding with the litigation as a matter of law, and must be reasonably likely to succeed in the litigation. In practice, nearly all personal injury actions are run without the benefit of legal aid. 7.4 Is funding allowed through conditional or contingency fees and, if so, on what conditions? The practice of charging contingency fees is illegal in Ireland, as it is considered to be champerty, i.e. aiding a claimant to litigate without good cause and taking a share of the profits. An exception relates to recovery of a debt or a liquidated demand. However, the lack of a comprehensive civil legal aid scheme has meant that many solicitors now operate on a “no win no fee” basis, in other words, the client will not be charged a professional fee unless the claim is successful. This is deemed to be acceptable practice (and indeed, in the personal injury sphere, is widespread), and in fact reduces the pressure on the Government to provide a more comprehensive Legal Aid scheme. 7.5 Is third party funding of claims permitted and, if so, on what basis may funding be provided? Both maintenance and champerty are prohibited by law and this has prevented the development of third party funding of litigation in Ireland. Maintenance is the agitation of litigation by furnishing aid to a party in order that he or she might bring or defend a claim without just cause. In this regard it should be noted that a charitable motive is a good defence to an action for maintenance. Champerty occurs when there is, additionally, an agreement that the person funding such aid shall receive a share of what is recovered in the action brought or the promise of remuneration over and above Matheson Ireland
- 13. WWW.ICLG.CO.UK140 ICLG TO: PRODUCT LIABILITY 2016 © Published and reproduced with kind permission by Global Legal Group Ltd, London Ireland Tom Hayes Matheson 70 Sir John Rogerson’s Quay Dublin 2 Ireland Tel: +353 1 232 2000 Fax: +353 1 232 3333 Email: [email protected] URL: www.matheson.com Michael Byrne Matheson 70 Sir John Rogerson’s Quay Dublin 2 Ireland Tel: +353 1 232 2000 Fax: +353 1 232 3333 Email: [email protected] URL: www.matheson.com Matheson’s primary focus is on serving the Irish legal needs of internationally focused companies and financial institutions doing business in and from Ireland. Our clients include the majority of the Fortune 100 companies. We also advise seven of the top 10 global technology brands and over half of the world’s 50 largest banks. We are headquartered in Dublin and also have offices in London, New York and Palo Alto. More than 600 people work across our four offices, including 74 partners and tax principals and over 350 legal and tax professionals. Tom is a partner in the Commercial Litigation and Dispute Resolution Department and head of the Healthcare Group at Matheson. Tom advises a broad range of multinational organisations and healthcare professionals operating in the life sciences, cosmetics and healthcare sector generally. Specifically, he advises on life science and pharmaceutical regulatory law, EU medicine law, product recall and general liability issues. Tom also advises a number of hospitals, healthcare organisations, professionals and their insurers concerning the defence of clinical malpractice litigation in high-value and complex cases. He also represents medical and dental practitioners in defence of complaints before their regulatory bodies, at other statutory inquiries and inquests. Education: BA (Hons) Law and Politics. Michael is a partner in the Commercial Litigation and Dispute Resolution Department at Matheson, where he works in a range of areasincludingproductliability,financialserviceslitigation,defamation, regulatory and administrative law. Michael has represented Irish and international companies in a variety of product liability claims, including matters arising from the use of pharmaceuticals and vaccines, mechanical devices, agricultural products and foodstuffs. He also provides advice on regulatory and compliance issues arising for companies trading in Ireland and internationally. Education: Trinity College Dublin, Bachelor of Laws and German; University of Regensburg, Germany, Master of Laws. Matheson Ireland
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