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GAZETTE
MARCH 1986
cabinet maker who merely provides the wooden frame
in which a television set was housed to ensure that the
television set had no latent defect that might cause it
to catch fire. Even where the component is a less
sophisticated product, say a steel rivet or a rubber
tyre, it is usually the maker of the component rather
than the maker of the product into which the com-
ponent is incorporated who has the better opportunity
of checking it for safety."
14
So far as imported products are concerned, it should
be noted that only the person who imports the product
"for sale, hire, leasing or any form of distribution in the
course of his business" is deemed a "producer" by
Article
3,
para.
2.
Thus, for example, there is no question
that the Directive will affect the non-commercial import-
ation of food or gadgets purchased abroad by holiday-
makers - a fear that troubled the English and Scottish
Law Commissions.
15
The argument in favour of impos-
ing strict liability on the commercial importer is that his
business involves exposing consumers within the Com-
munity to the risk of being injured by the imported
products. Realistically, the consumers will be grateful
for being presented with a relatively easy target within
the Community rather than having to face the prospect
of expensive and uncertain litigation in some foreign
jurisdictions outside the Community.
16
Where the producer cannot be identified, there is
much to be said for the approach taken in Article
3,
para.
3,
which effectively treats the supplier as the
producer, unless he discloses the identity of the actual
producer. As the English and Scottish Law Commis-
sions observed (in respect of an equivalent provision in
the Council of Europe's Strasbourg Convention):
"First, it assists the injured person in tracing the
'anonymous' producer in circumstances where assist-
ance is needed; second, it encourages retailers and
other suppliers to keep records from which it may be
possible to establish the identity of the supplier (or
producer) of the product in question; third, by making
it harder for the producer to remain anonymous it
encourages him to reveal his identity by labelling his
products where practicable."
17
(3) When is a Product Defective?
Article 6 is concerned with the circumstances in which
a product is defective. Under this Article a product is
defective when it "does not provide the safety which a
person is entitled to expect", taking all circumstances
into account, including:
(a) the presentation of the product;
(b) the use to which it could reasonably be expected
that the product would be put; and
(c) the time when the product was put into circulation.
A product is not to be considered defective by reason
only of the fact that a better product is subsequently put
into circulation.
Before looking more closely at the specific aspects of
the notion of "defectiveness" prescribed by Article 6, it
may be useful to place it in the general context of recent
developments in the Irish law of products liability.
Formerly, the approach of the courts was to allow com-
pensation in tort for negligence only where injury or
damage was caused by a
dangerous
product; there was
no entitlement to recover damages in tort where the
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