By Eoin P. Campbell, LL.B., Solicitor
Product liability is the area of law which covers the responsibility of somebody who produces a tangible article to ensure that it is safe, or that any potential hazard is clearly identified. All products which are manufactured, assembled or imported into the European Union are governed by EU Directives to ensure that consumers are protected from injury. Ireland has its own “Liability for Defective Products Act (1991)” with special rules concerning retailers who are unable (or unwilling) to provide information relating to the source of a defective product, who then become the liable party themselves in a claim for product liability compensation.
What Do Product Liability Regulations Cover?
There are three main ways in which product liability regulations aim to protect the consumer. These are guarding against designs defects, identifying manufacturing defects and eliminating marketing defects.
Design Defects
Product liability issues surrounding design defects occur when a product design is inherently dangerous – no matter how carefully manufactured. This may be where the risks of using a product outweigh its benefits (such as with side effects for certain drugs) or it fails to satisfy ordinary consumer expectations as to what constitutes a safe product. Product liability lawsuits claiming design defects are difficult to prove, since many companies spend months or years testing their designs before releasing the product to the public.
Manufacturing Defects
Manufacturing defects usually occur when defective components are used in the construction of a product or the product has been produced cheaply and is unsafe due to poor workmanship or the materials used. A recent example would be the Toyota recall of millions of cars due to a sticking accelerator pedal. A successful claim for product liability compensation in such a case would have to prove that there was a lack of quality control in the construction of the product – which is clear in the case of Toyota but may be more difficult to substantiate in one-off cases.
Marketing Defects
One of the most common reasons for product liability compensation claims is the “failure to warn”. Companies have an obligation to warn consumers about known hazards and dangers surrounding the normal, and sometimes abnormal, use of their products. The usual solution is a warning label placed in a conspicuous area of the product or accompanying literature, which details the known hazard. This is why you may see signs like “Warning – Hot Beverage” on the side of coffee cups and toys indicating that they are not suitable for children under a certain age.
How Are Product Liability Regulations Applied?
Product liability regulations are applied strictly in Ireland. If you purchase a product which is faulty or has been inappropriately marketed, you have every right to return the product to the person who sold it to you and reasonably expect a refund or replacement. Should the retailer refuse to do so, you can file a claim for the value of the goods up to €2,000 through the European Small Claims procedure or contact a solicitor when larger amounts are involved.
Should you suffer an injury because of a faulty product (as with the Toyota “sticking accelerator pedals” above), you are also entitled to claim personal injury compensation from the retailer or manufacturer. This is done through the Injuries Board Ireland provided that you can show that the product was used by yourself in the way in which it was intended and had a defect in either the design, manufacturing process or in the way it was marketed.
A very recent example of a product liability case in Ireland is the recall of DePuy Hip Replacement Systems, which were discovered to have higher than expected failure rate. These systems shed debris at a rate well above what one would expect in a hip replacement system – causing inflammation and infection of the hip area, with the possibility of hip fracture. People who have had these systems implanted will now have to undergo revision surgery, which is more painful and has a longer recovery rate than the initial hip replacement surgery. Recipients of these particular hip replacement systems are entitled to claim compensation against DePuy Orthopaedics Inc. due to the manufacturer´s negligence.
How Do I Claim Product Liability Compensation?
In order to claim product liability compensation you must have actually physically suffered an injury through a fault in the product. Therefore, the first thing you have to do is seek medical attention and, only once you are certain that there is no risk to your long term health, contact a solicitor. The process for claiming product liability compensation through the Injuries Board Ireland is the same as with any other personal injury compensation claim. However, there are a number of obstacles, unique to claims for product liability compensation, that you may find difficult to overcome without the assistance of a solicitor.
The first is that the manufacturer or retailer is unlikely to accept liability for your injuries. This is especially true where the faulty product that you have purchased may have avoided a particularly stringent quality control procedure, and the negligent party will claim that your injuries could not have possibly originated from the correct use of their product. This leads onto contributory negligence – a claim by the manufacturer or retailer that you used their product incorrectly, and your injuries, or at least an element of them, are your own fault. In either instance, the Injuries Board Ireland will decline to process your application and issue you with an authorisation to pursue your claim for product liability through the courts.
A further obstacle you may encounter is attempted “third party capture”. This is where the company responsible for your injuries is prepared to admit product liability but they wish to keep any negative media about your injuries to a minimum, and want to prevent your case going to court. The company will instruct the insurance company with whom they hold their product liability insurance to approach you with an offer of compensation in return for early (and usually discrete) settlement. Inasmuch as an immediate sum of money may be welcome at a time when you are still recovering from the trauma you experienced, insurance companies tend to give their profits more consideration than the long term wellbeing of the victims, and it is always better to check with a specialised personal injury claims solicitor to ensure that the amount being offered represents a fair and adequate amount for your injuries.
How Much Will I Get For Product Liability Compensation?
Because of the many different types of injury that can be sustained from a faulty product, there is no suitable answer for this question. The assessment for product liability compensation is based on the Book of Quantum – a publication which lists many of the physical injuries you may sustain, and allots a band of compensation depending on the severity of the injury and the length of time it may take to heal. However, if there is an element of contributory negligence in your claim for product liability compensation, this will affect the final award you receive.
A solicitor will be able to give you a better idea of how much you should receive for product liability compensation, as he will have up-to-date information about awards currently being granted and be able to relate them to your individual circumstances. He will also be able to explain to you about “special” damages that you may be entitled to – such as out of pocket expenses for attending hospitals and clinics, and any loss of earnings you may have experienced due to your injuries.
Therefore, once any immediate health issues have been administered to, it is in your best interests to speak with a solicitor and discuss making a claim for product liability compensation. We have assembled a panel of experienced Irish solicitors, many of whom have contributed to this website, or who staff our free advice line. You can contact them with your enquiry about professional negligence on 1 800 283 032 between 8am and 10pm – seven days a week. Alternatively, you can provide your name and number in the call back box below, and a solicitor will call you back at a suitably convenient time. There will be no charge for this initial call and you are under no obligation to proceed with a claim for compensation once you have spoken with one of our solicitors.
Summary
- The rules enabling individuals to make product liability compensation claims are contained within the Liability for Defective Products Act which aims to ensure that consumers are protected from injury.
- These product liability regulations cover product liability compensation claims in cases of design defects, manufacturing defects and marketing defects.
- To make product liability compensation claims, you must have sustained a physical injury due to one of the defects mentioned above and have received medical treatment for the injury.
- Product liability compensation claims of a value of up to €2,000 can be made through the European Small Claims procedure, but larger claims have to be processed through the Irish court system.
- When making product liability compensation claims, you should be wary of approaches from insurance companies offering an early settlement.
- Instead, speak with a solicitor about product liability compensation claims on our free advice service for comprehensive information and advice.
Copyright © 2009-2019 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.