The Gazette 1986

GAZETTE

MARCH 1986

product proved only to have been

defective,

in the sense

of falling short of the legitimate expectations of the

consumer. Thus, where a watch caused dermatitis, its

user could in certain circumstances sue the manufacturer

or supplier in tort but, if it merely went slow, the only

remedy lay in contract.

Since Costello, J.'s judgment in

Ward

-v-

McMaster

and Louth Co.

Co.,

it is now clear that in some cases it

will be possible to take negligence proceedings where the

defendant has produced a defective rather than danger-

ous product. Costello, J. endorsed this extension of the

scope of recovery with less hesitation than the majority

in the House of Lords decision of

Junior Books -v-

Veitchi

a decision whose reasoning Costello, J. found

"persuasive".

But for the purposes of the Directive, as we have seen,

"defectiveness" does not have this wider meaning. Pro-

ducts that are safe but shoddy do not fall within its scope.

Let us now consider briefly the elements of defectiveness

specified in Article 6. The key word is

safety:

a product

is defective when it does not provide the safety which a

person is entitled to expect, taking all the circumstances

into account.

Article 6 mentions three specific circumstances, giving

them no particular weight relative to each other or

relative to other unspecified circumstances. What weight

each should have must depend on the facts of each

particular case. The first of these circumstances is " t he

presentation of the p r oduc t ". If, for example, a product

is represented in the advertising literature and in the

detailed descriptive quality, then a consumer who is

injured or suffers damage from the product's danger-

ousness in lacking this quality may have a right to action.

K SECURITY PRIVATE

INVESTIGATIONS LTD.

Founded 1947

Internationally represented »n 40 countries.

OUR SERVICES INCLUDE

• Matrimonial/Domestic investigations.

• Insurance Claims.

• Employment Tribunal/Industrial Relations

Employer/Employee.

• Fraud, Internal Theft.

• Copyright/Patent/Trade mark, Infringement.

• Commercial, Civil, Criminal, Plaintiff/Defence

• Trace Investigations

• Surveillance, Under Cover Agents.

• electronic Sweeping (Removal only).

• Hand-writing analysis.

• General investigations under P.I.L.

Fully Experienced Investigators conversant

with all aspects of Court Attendance,

Evidence etc.

RICHMOND CHAMBERS,

101 RICHMOND ROAD,

DUBLIN 3.

Tel 3 6 0 1 2 4 / 5 - 371906

(Incorporating

Summons

Servers

Ltd.)

So where a hot water bottle is represented as being

capable to taking boiling water, and it is not, an injured

user who relies on this representation may well succeed,

on this account, in showing that the hot water bottle did

not provide the safety which he was entitled to expect. It

would appear that the "presentation" of the product

includes an

omission

to provide information which

ought to have been given, to protect the user from harm.

Thus, the failure by a producer to refer to an allergic

reaction which was known to the producer to affect the

product could in some instances be relied on by an

injured consumer.

The second circumstance specified in Article 6 is " t he

use to which it could reasonably be expected that the

product would be p u t ". Clearly there are limits to what

reasonably may be expected: it is unreasonable, for

example, to expect that a hammer should be capable of

being used successfully as a car jack. Moreover, a com-

petent adult who deviates widely from the specified

instructions as to the use of a product may have no right

to complain about injuries resulting from his or her

failure to comply with the directions.

So far as misuse of a product is concerned, it may be

that the European Directives will be interpreted as

broadly as in the United States so as to apply a modif-

ication of the forseeability rule akin to that in

Hughes

-v-

Lord Advocate.

Moran

-v-

Faberge Inc.,

seventeen-year-old girl injured a friend of hers when she

poured some cologne onto a lighting candle in order to

make it a scented candle. The cologne was highly inflam-

mable, but no warning to this effect was contained on

the bottle. Liability was imposed. The majority of Mary-

land Court of Appeals considered that it was not

necessary for the plaintiff to show that Faberge ought

to have foreseen that its cologne would be used in this

idiosyncratic manner; it was necessary only that "it be

foreseeable to the producer that its product, while in its

normal environment, may be brought near a catalyst,

likely to be found in that environment, which can untie

the chattel's inherent danger".

The third circumstance specified by Article 6 is " t he

time when the product was put into circulation". This

factor may operate in one of two ways. First, the passage

of time may be relevant as throwing light on what a person

is "entitled to expect". To take an obvious case, one

would not be entitled to expect that a chocolate cake

would be edible after a year. Indeed, one could surely

expect that any consumer products, after sufficient wear

and tear, would eventually become likely to be unsafe.

That is one of the reasons why we change our cars and

electrical appliances periodically.

The second way the time factor specified by Article 6

operates is somewhat different. It relates to the fact that

safety standards may change over a period of time. This

change may be as a result of a development in the state

cf scientific and technical knowledge: such a case is

covered by Article 7, clause (e) and will be considered

below. But safety standards mav also change without

direct reference to such scientific and technical develop-

ments. What may have been an acceptable risk from a

product twenty years ago may simply cease to be accept-

able to the community over this period. For example,

there is a greater sensitivity to questions of hygiene and

road safety today than there was some time ago. The

thrust of Article 6 is to seek to ensure that producers will