The Gazette 1986

GAZETTE

APRIL 1986

ence to any "provision" to this effect. The original

draft, therefore, overrode not merely contractual

exclusions of liability but also any assertion by the

producer that the consumer, by using the product had

voluntarily assumed the risks that might arise from the

defectiveness of the product: cf. the Explanatory Mem-

orandum to the draft Directive, para. 29. The inclusion

in the final text of the reference to a "provision" limit-

ing the injured person's liability appears to restrict the

scope of the Article. The precise extent of the change is

a matter for debate: there may, of course, be a "pro-

vision" in a contract, but it would also seem possible for

there to be a "provision" in a non-contractual agree-

ment, or even (perhaps) in a unilateral notice, involving

some degree of communication between the parties. The

parallel with the constriction of the

volenti

defence as a

result of section 34 (1) (b) of the

Civil Liability Act 1961

is worth considering.

If, therefore, Article 12 only prevents limitations or

exemptions from liability from efficacy where there are

contained in "provisions", it is at least possible to argue

that

other

limitations or exemptions are untouched by

Article 12 and therefore capable of efficacy. Whether

there is much of a lacuna here is not clear. By way of

analogy with

McComiskey -v- McDermott *

it would in

any event be open to a defendant to argue that the par-

ticular relationship between the parties, perhaps involving

an attempted limitation of or exemption from liability

should be a "circumstance", quite possibly an important

one, which should be taken into account in determining

whether a product is "defective" within the terms of

Article 6. Thus, for example, if operating instructions for

a bicycle specified that the tyres should be checked at

regular intervals, and that, in the event of failure by the

owner to do so, the manufacturer could not be liable for

any defects which such checks would have revealed, this

provision, even if not directly efficacious by reason of

Article 12, would surely be a relevant "circumstance"

under Article 6.

Concurrent Wrongdoers

The set of liability among several defendants is cast

widely by the Directive. In view of the broad range of

liability under Part III of our

Civil Liability Act 1961

and our liberal third-party procedure, this approach is

generally in harmony with the present law. Article 5

provides that:

"Where, as a result of the provisions of this Directive,

two or more persons are liable for the same damage,

they shall be liable jointly and severally without pre-

judice to the provisions of national law concerning

the rights of contribution or recourse."

And Article 8, para. 1, provides that:

"Without prejudice to the provisions of national law

concerning the right of contribution or recourse, the

liability of the producer shall not be reduced when the

damage is caused both by a defect in

the

product and

by the act or omission of a third party."

Concluding Observations

The Directive on products liability is likely to have

important effects on Irish law. The general principles

are relatively easy to grasp but several uncertainties

remain. Rather than adopting an elaborate and compli-

cated series of detailed specifications, the Directive

paints broad strokes. How it eventually works out in

practice, only time will tell.

Concluded.

Footnotes

24. Cf. B. McMahon & W. Binchy,

Irish Law of Torts,

pp. 204-211

(1981).

25. Explanatory Memorandum to the draft Directive, para. 15.

26.

id.

27. Cf.

Davoren

-v-

Fitzpatrick,

(1935) Ir. Jur. Re. 23,

Cahiil

-v-

Kenneally,

(1955-56) Ir. Jur. Rep. 15, B. McMahon & W. Binchy,

Irish Law of Torts,

167-169 (1981).

28.

Explanatory Memorandum

to the draft Directive,

para. 14.

29.

Op. cjf.,

p. 700.

30.

Op. cit.,

p. 706.

31.

Id.

32. Kahan,

Statutes of Limitations Development of the Discovery Rule,

2 J. of Products Liability 127, at 134 (1978).

33. Cf. J. Brady & T. Kerr,

The Limitation of Actions in the Republic

of Ireland,

ch. 6 (1984).

34 .

Op. cit.,

para. 152.

3 5 .

Explanatory Report to the Strasbourg Convention on Products

Liability in Regard to Personal Injury and Death,

para. 68.

3 6.

Explanatory Memorandum

to the draft Directive,

para. 28.

3 7 . Cf. the views of the Scottish Law Commission, expressed in Eng.

Law Com. No. 82 & Scot. Law Com. No. 45, para. 156.

38 . Marriott,

Products Liability in Europe - What of the Future?'

3 J. of Products Liability 15, at 16 (1979).

3 9. Op.

cit.,

para. 158.

4 0 . (1960) S.C. 92, at 115.

4 1 . (1983) I.L.R.M. 156(analysed by J. Brady&T. Kerr,

op. cit.,

50-52,

Kerr, 5 Dublin U.L.J. (N.S.) 133 (1983).

4 2. Sup. Ct. 12 July 1984.

3 . (as to which see section 35 (1) of the

Civil Liability Act 1961,

and

B. McMahon & W. Binchy,

Irish Law of Torts,

pp. 223-225 (1981).

4 4 . 119711 I.R. 275.

4 5

. Cf. B. McMahon & W. Binchy,

Irish Law of Torts,

pp. 225 ff

[19811.

4 6 . 11974] l.R. 75.

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