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GAZETTE
MARCH 1986
not suffer unduly from these changes in attitude. The
Article does not give the producer an
absolute
defence
to show that the product complied with the standards of
the time when the product was put into circulation, but
it allows this fact to be taken into consideration, as one
of a number of circumstances; in determining whether
the product was defective.
The passage of time since the product was put into
the market may also be relevant to the question of proof,
which is addressed by Article 4 (considered below)
Prosser & Keeton,
22
note that:
"The older the product, the less likely it is that evid-
ence of malfunctioning will suffice as an inference of
a construction flaw, although some courts would
permit
the
plaintiff to negative misuse and overuse in
such a case."
(4) The Scope of "Damage"
"Damage ", for the purposes of Article 1, is defined
by Article 9 as meaning:
(a) damage caused by death or by personal injuries;
(b) damage to, or destruction of, any item of property
other than the defective product itself (with a lower
threshold of 500 ECU), provided that the item of
property:
(i) is of a type ordinarily intended for private use or
consumption, and
(ii) was used by the injured person mainly for his
own private use or consumption.
Article 9 is specified as being without prejudice to
national provisions relating to non-material damage.
In the original draft Directive, presented by the Com-
mission to the Council in September 1976, " d ama g e"
had been defined somewhat differently. The relevant
Article (then Article 6) had defined damage as meaning:
(a) death or personal injuries;
(b) damage to or destruction of any item of property
other than the defective article itself where the item
of property
(i) is of a type ordinarily acquired for private use or
consumption; and
(ii) was not acquired or used by the claimed for the
purpose of his trade, business or profession.
The Explanatory Memorandum to the draft Directive
made it clear (in para. 17) that, so far as the death of the
user of the article was concerned, the Article was
"intended to cover both rights to compensation arising
for the benefit of
that
person in the period between the
event given rise to injury and his death, and rights to
compensation arising for the benefit for persons who
had rights against the deceased. These will be primarily
rights to maintenance of the spouse or close relatives."
In terms of Irish law, the claim would cover both sur-
vival of actions and the fatal injuries provisions in
sections 6-10 and 47-51, respectively, of the
Civil Liabil-
ity Act 1961
(as amended), though in view of the exclus-
ion of "non-material" damage, the statutory claim for
£7,500 (maximum) for mental distress, to be sustain-
able, would have to rest on the provisions of Irish law
rather than on the liability prescribed in the Directive.
So far as personal injuries were concerned, the
Explanatory Memorandum to the draft Directive stated
(in para. 17) that "The term 'personal injuries' com-
prises the cost of treatment and of all expenditure incur-
red in restoring the injured person to health and any
impairment of earning capacity as a result of the personal
injury". The Explanatory Memorandum noted
(id.)
that the draft Directive did "not include payment of
compensation for pain and suffering or for damage not
regarded as damage to property (non-material damage).
It is therefore possible to award such damages to the
extent that national laws recognise such claims,
based
on other legal grounds."
(Emphasis added).
The Directive as it finally emerged in Article 9,
involved some drafting changes from what originally
appeared as Article 6, but on the question of death and
personal injuries, the substantial position has not been
altered.
So far as property damage is concerned, Article 9, as
may be seen, requires, first, that the damage be to any
item of property
other than the defective product itself.
Thus if an electric kettle self-destructs and burns to a
cinder, but causes no damage to other property, no
liability accrues under the Conventions-
Article 9 requires, secondly, that the item of property
damaged by the defective product be of a type "ordin-
arily intended for private use or consumption" and that
it have been "used by the injured person mainly for his
own private use or consumption". Clearly what the
Directive is seeking to exclude is damage to property
used in the course of trade, business or profession: the
draft Directive makes this clear. The language used in
the Directive is perhaps unfortunate. It would seem, in
its express terms, to exclude property damage sustained
by an innocent third party as a result of an accident
brought about through the innocent use of an unsafe
product by its owner.
For example, if A buys a car with defective brakes
and smashes through B's front window, leaving A
physically unscathed, B is surely morally entitled to
compsensation for the property damage, but can it be
said that the car was
"used
by the
injured
person - B -
mainly for his own private use or consumption"? B
never " u s e d" the car: he first became acquainted with it
in his living room after the damage was done.
It should be noted that, by virtue of Article 14, the
Directive does not apply to injury or damage "arising
from nuclear accidents and covered by international
conventions ratified by the Member States." •
Part 2 of this article will appear in the April Gazette.
Footnotes
1. 26 April 1985, per CostclloJ.
2. High Court, Barron J.. .10 July 1985.
3. See Dashwood, [1977] J. of Business L aw 202.
4. 85/374/EEC, published in the OITieial Journal of the European
Communities, No. L 210/29.
5. D. Morris, eh. 13 of
Economics of Consumer Protection,
p. 218
[19801.
6.
id.,
pp. 218-219.
7.
Report of the Royal Commission on Civil Liability and Com-
pensation for Personal Injury,
vol. 1, para. 1229 (Cmnd. 7054,
1978).
8. 38 U. Chieago L. Rev. 1 [1970],
9. Eng. Law Com. No. 82 and Seot. Law Com. No. 45, para 85.
10. Article 15 (1) (a) of the Directive.
11. See B. McMahon & W. Binchy,
Irish Law of Tort,
ch. 14 [1981],
Ward
-v-
McMaster & Louth Co. Co.,
High Ct., Costello J.,
26 April 1985.
12. English Law Com. No. 82 & Scot. Law Com. No. 45, para. 99.
13.
Op. Cit.,
vol. 1, para. 1241.
14.
Op. Cit.,
paras. 69-70.
15.
Op. Cit.,
para. 103.
16. Cf. the Pearson Commission Report,
op. cit.,
vol. I, para. 1250.
17.
Op. Cit.,
para. 101.
18. High Court, 26 April 1985.
19. [1983]1 A.C.250.
42