The Gazette 1986

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 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 products where practicable." 17 (3) When is a Product Defective?

'Our Progressive and Professional Team' OUR PROFESS IONAL SERVICES VALUATIONS RENT REVIEWS LEASE RENEWALS ARBITRATIONS CAPITAL GAINS AND PROBATE VALUATION RATING APPEALS AND INSURANCE VALUATION COMPULSORY PURCHASE ORDERS OUR VALUAT ION TEAM Anthony M. Sherry F.S.VA, F.IAV.I.

Gordon H. Gill F.R.I.C.S. Philip G. Sherry A.R.I.C.S.

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