IrelandLiability for Defective Products Act 1991, producer liability for defective products
Liability for Defective Products Act 1991 (No. 28 of 1991)
In force since .
A product liability rule binding private bodies.
- Private right of action
- Yes
- Instrument type
- an act of a legislature
As of .
What it requires
- The Act defines a product as all movables, including a movable incorporated into another product as a component part or raw material, and electricity where a failure in its generation causes damage; it is open whether that reaches software supplied on its own, and a court must construe the Act to give effect to Directive 85/374/EEC (section 1(1) and (3)).
- If you manufacture a finished product, a component or a raw material, put your name or trade mark on a product as if you made it, or import a product into a Member State from outside the European Communities to supply it in the course of business, you are liable in damages in tort for the damage a defect in it causes, jointly and severally with any other person liable (sections 2(1), 2(2) and 8).
- If you only supply a product and the producer cannot by reasonable steps be identified, answer an injured person's request within a reasonable time by identifying the producer or the person who supplied it to you, or you are liable as the producer (section 2(3)).
- A product is defective if it fails to provide the safety a person is entitled to expect, taking all circumstances into account, including its presentation, the use it could reasonably be expected to be put to and when it was put into circulation (section 5(1)).
- Be able to prove the defense you rely on, such as that you did not put the product into circulation, that the defect probably did not exist when you did, that it is due to compliance with a legal requirement, or that the state of scientific and technical knowledge did not allow it to be discovered (section 6(a), (b), (d) and (e)).
- Do not rely on a contract term, a notice or any other provision to limit or exclude this liability to an injured person (section 10).
- Claims cover death, personal injury and loss of or damage to property of a type ordinarily intended for private use and used mainly privately, but not the product itself, and for property damage only the amount above £350 is awarded (sections 1(1) and 3(1)).
- A claim must be brought within three years of the later of when it accrued and when the plaintiff became or should have become aware of the damage, the defect and the producer's identity, and the right of action is extinguished ten years after you put the actual product into circulation unless proceedings were begun against you (section 7(1) and (2)).
These lines are LexLint's reading of the law's text, as of .
Who enforces it
Settledness
- As of
- Open questions
- Is software supplied on its own a 'movable', and so a 'product', within the definition of product in section 1(1) of the Liability for Defective Products Act 1991?
- Does 'loss of, damage to, or destruction of, any item of property' in the definition of damage in section 1(1) of the Liability for Defective Products Act 1991 reach data held on a consumer's device?
What this law does
Section 2(1) of the Act makes the producer liable in damages in tort for damage caused wholly or partly by a defect in his product. The Department of Enterprise, Tourism and Employment describes the main effect of the Act as introducing into Irish law the principle of strict or no fault liability.
Section 2(2) makes liable as producer the manufacturer of a finished product, of a raw material and of a component part, a person who held himself out as the producer by putting his name or trade mark on the product, and a person who imported the product into a Member State from outside the European Communities in order to supply it in the course of business.
A supplier is liable as the producer if the producer cannot by taking reasonable steps be identified, the injured person asks the supplier to identify the persons named in section 2(2) within a reasonable time after the damage and when it is not reasonably practicable for the injured person to identify all of them, and the supplier fails within a reasonable time to comply or to identify the person who supplied the product to it.
Section 1(1) defines a product as all movables, including primary agricultural products that have not undergone initial processing, and as including electricity where damage is caused by a failure in its generation. The definition of product was substituted from by the European Communities (Liability For Defective Products) Regulations 2000. Section 1(3) requires a court to construe the Act so as to give effect to the Council Directive.
The injured person must prove the damage, the defect and the causal relationship between the defect and the damage. A product is defective if it fails to provide the safety which a person is entitled to expect, taking all circumstances into account, including its presentation, the use to which it could reasonably be expected to be put and the time when it was put into circulation.
A product is not considered defective for the sole reason that a better product is subsequently put into circulation. It is a defense under section 6(a) that the producer did not put the product into circulation. It is a defense under section 6(b) that, having regard to the circumstances, the defect probably did not exist when the producer put the product into circulation or came into being afterwards.
It is a defense under section 6(d) that the defect is due to compliance by the product with a requirement imposed by or under an enactment or a requirement of the law of the European Communities. It is a defense under section 6(e) that the state of scientific and technical knowledge when the producer put the product into circulation was not such as to enable the existence of the defect to be discovered.
It is a defense under section 6(f) for the manufacturer of a component or the producer of a raw material that the defect is attributable entirely to the design of the product it was fitted in or to the instructions of that product's manufacturer.
Damage means death or personal injury, or loss of, damage to or destruction of an item of property other than the defective product itself that is of a type ordinarily intended for private use or consumption and was used by the injured person mainly for private use or consumption. Where damages for loss of or damage to property would not exceed £350, none are awarded, and where they exceed that amount only the excess is awarded.
An action for damages must be brought within three years of the later of the date the cause of action accrued and the date the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer. The right of action is extinguished ten years after the producer put the actual product that caused the damage into circulation, unless the injured person has instituted proceedings against the producer in the meantime.
Where two or more persons are liable for the same damage, they are liable jointly and severally as concurrent wrongdoers. The producer's liability is not reduced when damage is caused both by a defect in a product and by the act or omission of a third party. Where damage is caused partly by a defect and partly by the fault of the injured person, the contributory negligence provisions of the Civil Liability Act 1961 apply as if the defect were due to the fault of every person liable for it.
The producer's liability to an injured person cannot be limited or excluded by any term of contract, by any notice or by any other provision. The Act does not affect any rights an injured person may have under any enactment or under any rule of law. The Act does not apply to a product put into circulation within the territory of any Member State before its commencement. The Act came into operation on .
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.