Product liability


1. A manufacturer's liability to a consumer for defects in the products supplied lies under the neighbour principle as it first has been established in Donoghue v. Stephenson 1932. But this liability is in negligence, which must be proven by the plaintiff unless there is a res ipsa loquitur situation.
As a consequence of the EEC Product Liability Directive 1985 the Consumer Protection Act 1987 was passed.

2. Liable are:
a) the producer of the product and
b) any person who puts his name on the product or uses it as a trademark and so holds himself out to be the producer of that product and
c) any person who has imported the product into a member state from a place outside the E.C. in the course of business.
d) In special circumstances, the supplier may be responsible.

3. Product:
a) This includes any good as well as electricity.
b) Products exempted: game and agricultural produce, unless industrially processed - this excludes the farmer but not the baker.

4. Defect: if the safety of the product is not such as one would generally be entitled to expect.

5. Damage: this includes death or personal injury or any loss of or damage to any property. Damage to the product itself is not included.
The property damaged must ordinarily and actually by the plaintiff be intended for private use, occupation or consumption.

6. Defences
a) If the defect is attributable to compliance with any requirement imposed by or under any enactment or with any Community obligation.
b) If the defendant did not supply the product.
c) If the supply was not in the course of business or with view of profit - a gift, for example.
d) If the defect did not exist in the product at the time of supply.
e) If the state of scientific or technical knowledge at the time of supply was not such that discovering the defect would have reasonably been possible.
f) If the defect constituted a defect in a subsequent product that was wholly attributable to the design of that subsequent product.

7. Limitation
a) Three years (more when fraud or disability are present), starting to run upon knowledge of the defect.
b) Absolute and unqualified bar after ten years.