The Gazette 1986

MARCH 1986

GAZETTE

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.

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