Product Liability Comparative Guide

• Published date: 09 January 2024
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Consumer Law, Product Liability & Safety, Personal Injury
• Law Firm: Mason Hayes & Curran
• Author: Mr James Gallagher, Domhnall Breatnach and Aisling Morrough

1. Product liability regimes

1.1 What are the legal regimes under which consumers who are injured by a defective product can bring a claim for compensation? What is the most common way in which such product liability claims are brought?

Product liability claims are generally brought under:

• common law contract and tort principles, including negligence or
• statutory provisions, including the Liability for Defective Products Act 1991, which transposed the EU Product Liability Directive (85/374/EEC) into Irish law.

In most cases, product liability claims are initiated by issuing a personal injury summons in the High Court, the Circuit Court or the District Court (depending on the value of the claim). A personal injury summons must be formally served, within one year of being issued, on the defendant, either:

• personally; or
• by registered post to:
• • the defendant's residence or place of business; or
  • its solicitors, if the solicitors have confirmed that they have authority to accept service of the proceedings.

Once service of a summons has been effected, the defendant must enter a memorandum of appearance to the summons. The defendant must then file a defence to the claim. The timeframe for filing a defence will differ depending on the court in which the particular action has been taken. Pleadings containing assertions or allegations in a personal injuries action must be accompanied by an affidavit of verification sworn by the relevant party.

1.2 Do any special regimes apply in specific sectors?

Although most product liability claims will rely on the regimes set out above, additional regulatory requirements apply to certain sectors (eg, pharmaceutical products and medical devices), which may also be relied upon in product liability claims.

1.3 Are the courts in your jurisdiction generally considered sympathetic to claimants in product liability suits?

Although the Irish courts are not necessarily more sympathetic to claimants in their approach to product liability suits, aspects of the statutory regime governing product liability claims are more sympathetic to claimants. In line with the EU Product Liability Directive, the Liability for Defective Products Act allows a year longer for defective product claims to be brought under that legislation than the limitation period allowed for a personal injury claim (three versus two years). Accordingly, a claimant has three years to bring an action under the Liability for Defective Products Act from:

• the date on which the cause of action accrued; or
• the date (if later) on which it became aware, or should reasonably have become aware, of:
• • the damage;
  • the defect; and
  • the identity of the producer.

This right of action is subject to a 'long-stop' provision under which a claimant's rights are extinguished on the expiry of 10 years from the date on which the producer put into circulation the actual product that caused the damage, unless the claimant has in the meantime instituted proceedings against the producer. This gives a claimant a significant opportunity to become aware of a defective product and still be able to bring a claim without the risk of the claim being statute barred.

In addition, under the Liability for Defective Products Act, where the producer of the product cannot be identified by taking reasonable steps, any person that supplied the product (whether to the person who suffered the damage, to the producer of any product in which the product is incorporated or to any other person) will be liable as the producer. This means that it is very likely that the claimant will be in a position to identify a suitable defendant. This provides the claimant with additional recourse.

Further, in Boston Scientific Medizintechnik GmbH (Joined Cases C‑503/13 and C‑504/13), the Court of Justice of the European Union held that where a product belongs to the same group or production series of products that had a potential defect, such a product may be classified as defective without there being any need to establish that the product has such a defect. This eases the burden on a potential claimant. Furthermore, in relation to the question of whether a risk of failure could constitute a defect, the court held that for high-risk products (eg, in this case, pacemakers) the potential lack of safety would constitute a defect and give rise to liability.

2. Parties

2.1 Can representative bodies bring product liability suits in your jurisdiction on behalf of groups of consumers? If so, which bodies may do so and what is the applicable procedure?

Representative bodies cannot currently bring product liability suits on behalf of groups of consumers.

The adoption of the EU Collective Redress Directive (2020/1828) is expected to lead to the implementation of a national scheme providing for a form of collective action under EU consumer protection law. Each EU member state must designate at least one 'qualified entity' to bring actions on behalf of consumers and a list of qualified entities will be maintained by the European Commission.

These qualified entities (eg, consumer organisations) will be empowered to bring collective actions on behalf of consumers for breaches of a wide range of EU legislation (listed in Annex I of the Collective Redress Directive). Qualified entities will be able to obtain either:

• injunctive relief to secure the cessation or prohibition of practices that infringe EU law; or
• remedies such as compensation, repair, replacement, price reduction, reimbursement or contract termination, as available under law.

The Competition and Consumer Protection Commission is likely to be a qualified entity in Ireland. Member states must apply these measures from 25 June 2023.

The Collective Redress Directive has been transposed into Irish law by the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023.

2.2 Are class actions or other forms of collective action available in your jurisdiction? If so, what restrictions and requirements apply in this regard? Are they commonly used?

Class, group or other collective action mechanisms are currently not available in Ireland. Once commenced, the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023, which transposes the Collective Redress Directive into Irish law, will put in place a mechanism for a national scheme allowing at least one qualified entity to bring actions on behalf of consumers.

Currently, multi-party litigation in Ireland is generally dealt with by means of 'test cases'. Where a number of separate claims arise from the same circumstances, a test case (or a group of test cases) is brought to trial first to determine the legal principles that may be relevant to the remainder of the cases. Although test cases create a precedent that is likely to be followed in subsequent similar cases, they are not automatically binding on subsequent cases, particularly if there are distinguishing features in subsequent cases.

The Rules of the Superior Courts (Order 15, Rule 9) provide a procedure for representative actions. Where there are numerous persons with the same interest in a cause or matter, the procedure allows one or more of them to sue on behalf of all interested persons. However, the procedure is rarely used as there are several limitations to it, including:

• a strict interpretation of the 'same interest' test and
• authority restricting the ability to award damages through the procedure.

2.3 Which parties may potentially be held liable for defective products in your jurisdiction?

Statute: The Liability for Defective Products Act lays liability firmly at the door of the 'producer' of the defective product. The 'producer' of a product is defined as:

• the manufacturer or producer of a finished product;
• the manufacturer or producer of any raw material or the manufacturer or producer of a component part of a product;
• in the case of products of the soil, of stock-farming or of fisheries and game which have undergone initial processing, the person that carried out such processing;
• any person that, by putting its name, trademark or other distinguishing feature on the product or using its name or any such mark or feature in relation to the product, has held itself out to be the producer of the product; or
• any person that has imported the product into an EU member state from a place outside the European Union in order, in the course of any business, to supply it to another.

Tort: In tort, liability extends to anyone that is found to have breached a duty of care that it owed to a party who suffered damage as the result of a defective product. This could cover a number of parties involved in the supply chain of the product.

Contract: Privity of contract in Irish law means that only those parties that are party to a contract can enforce the rights and obligations under the contract. In effect, this means that a seller will only be liable in contract to a buyer with which it has contracted. Third parties have no right to enforce a contract.

Criminal: The European Communities (General Product Safety) Regulations 2004 (GPSR), which transposed the EU General Product Safety Directive (2001/95/EC) into Irish law, make it an offence for a producer to place an 'unsafe' product on the market.

The GPSR define a 'producer' as:

• the manufacturer of the product;
• the manufacturer's representative in the European Union (if the manufacturer is not established in the European Union);
• the importer (in certain circumstances); and
• other professionals working within the supply chain of the dangerous product.

Under the GPSR, it is also an offence for distributors to supply or attempt to supply a product that they know, or reasonably presume (based on information in their possession), to be a dangerous product.

2.4 Can parties outside the jurisdiction be the target of a product liability suit? What requirements and restrictions apply in this regard?

Yes, if it can be established...