The Gazette 1986

GAZETTE

APRIL 1986

(Contd. from p.75)

products - a loaf of bread, for example - twelve years is

an entirely inappropriate figure. The Council of Europe,

who favoured the same approach as was ultimately

adopted by the EEC Directive was conscious of the

problem but nonetheless considered ten years "an

acceptable period in view of the need to fix some limit

(ten years being a fair average) and the desirability of

affording producers some security".

Similarly the

framers of the draft Directive considered that ten years

"appeared as an average period".

This notion of an

"average period" may be challenged; the vast range of

products, each with their appropriate life-span of use,

makes it quite inapt to select

any

particular period as a

cut-off point, since that period will be quite unsuitable

for many of these products.

The ten-year cut-off period has not been met with

universal support by producers, some of whom

"argue that the period is too long, that for them to

maintain records to establish that goods were not

defective when originally sold will be an expensive

exercise, and the longer the period for which records

must be kept the greater the expense. As the consumer

must bear this cost in the price of the goods is it to his

advantage to pay for record keeping which can be of

benefit on only the most rare occasion?"

One of the grounds on which the Scottish Law Com-

mission objected to the ten-year " cu t - o f f" point was

that it would be unfair to an injured person, who

normally would not know on what date the product had

been put into circulation. Different cut-off periods

would apply in respect of each component:

"an injured person wishing to sue a component maker

would have at the very least a complicated task in

ascertaining whether his action was likely to be time-

barred, and evidence to this effect might not emerge

until after the injured person has incurred consider-

able expense in pursuing his claim."

The effect of the cut-off point, moreover, is in some

cases to deprive a person of a right of action before he

or she sustains an injury. In

Watson

-v-

Fram Reinforced

Concrete Co. (Scotland) and Winger Ltd «

((1960) S.C.

92, at 115), Lord Denning said:

"No one supposes that Parliament intended to bar a

man by a time-limit before he is injured at all . . .

A man may lose his right of action before he has got

it. Which is absurd."

The Constitution was invoked on this issued by Miss

Justice Carroll in

Morgan

-v-

Park Development Ltd.,*

She considered that "no law which could be described

as 'harsh and absurd' or which the courts could say was

unreasonable and unjustifiable in principle could also

be constitutional". In favouring the date of discover-

ability as the date of the accrual of the right of action,

Miss Justice Carroll was of the view that:

"Whatever hardship there may be to a defendant in

dealing with a claim years afterwards, it must be less

than the hardship to a plaintiff whose action is barred

before he knows he has one. This latter interpretation

appears to me indefensible in the light of the Con-

stitution."

Daly

-v-

Avonmore Creameries

McCarthy, J.

raised a question as to whether section 43 was man-

datory or discretionary. It is perhaps worth noting

that in several jurisdictions in the United States, it

is possible to operate contributory negligence rules

as appointment (referred to there as "comparative"

negligence) in products liability cases where the defendant

is strictly liable and the plaintiff is guilty ot contributory

negligence.

Contributory Negligence

Contributory negligence comes into play under the

Directive. Article 8, para. 2, provides that:

"The liability of the producer may be reduced or dis-

allowed when, having regard to all the circumstances,

the damage is caused both by a defect in the product

and by the fault of the injured person or any person

for whom the injured person is responsible."

Thus, contributory negligence is permitted to have

much the same role as it does at present in a negligence

action. Even the notion of imputed contributory negli-

gence

is allowed to operate. A point worth noting is

that there is some doubt as to how a case should be

resolved where the plaintiff is guilty of contributory

negligence and the defendant is strictly liable (for breach

of statutory duty, for example) without any " f a u l t" (as

that notion is understood under the

Civil Liability Act

1961.

In the Supreme Court decision of

O'Sullivan

-v-

Dwyer

Walsh,

J. interpreted section 43 of the 1961

Act as disentitling the plaintiff to any compensation in

such circumstances.

Prohibiting on "Contracting Out"

Article 12 of the Directive prohibits "contracting out".

It provides that the liability of the producer arising from

the Directive may not, in relation to the injured person,

be limited or excluded by a provision limiting his liability

or exempting him from liability. In its original draft, the

relevant provision (then Article 10) had specified that

liability might not be excluded or limited, without refer-

Nest Egg?

For Top Rate Interest on your Nest Egg

Call Des Whyte on (01) 611982

City of Dublin Bank pic.

The Alternative Dank.

Lower Merrion St., Dublin.

Please send me more information about City of Dublin Bank pic.

Name:

Address:

Telephone:

Note:

City of Dublin Bank pk has full Authorised Trustee Status and is an

approved Bank by the Incorporated Law Society of Ireland