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ICLG Guide to Product Liability 2017 Ireland

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ICLG Guide to Product Liability 2017 Ireland ICLG The International Comparative Legal Guide to: Product Liability 2017 15th Edition A practical cross-border insight into product liability work Published by Global Legal Group, in association with CDR, with contributions from: Addleshaw Goddard LLP Herbert Smith Freehills LLP Advokatfirma Ræder DA Iwata Godo Ali Budiardjo, Nugroho, Reksodiputro Lee and Li, Attorneys-at-Law Allen & Gledhill LLP Matheson Arnold & Porter Kaye Scholer LLP Pinheiro Neto Advogados Bahas, Gramatidis & Partners Seth Associates Blake, Cassels & Graydon LLP SEUM Law Blenheim Sidley Austin LLP Clayton Utz Squire Patton Boggs Crown Office Chambers Synch Advokat AB Drinker Biddle & Reath LLP Taylor Wessing Eversheds Sutherland (International) LLP TURUNÇ Faus & Moliner Wilson Elser Gianni, Origoni, Grippo, Cappelli & Partners The International Comparative Legal Guide to: Product Liability 2017 General Chapters: 1 Recent Developments in European Product Liability – Ian Dodds-Smith & Alison Brown, Arnold & Porter Kaye Scholer LLP 1 2 Update on U.S. Product Liability Law – Jana D. Wozniak & Michelle A. Ramirez, Sidley Austin LLP 6 Contributing Editors 3 Criminal Liability for Defective Products – Howard Watson & Tony Dempster, Ian Dodds-Smith, Arnold & Herbert Smith Freehills LLP 18 Porter Kaye Scholer LLP and Michael Spencer QC, Crown 4 The Practicalities of Managing a Global Recall – Richard Matthews & Fabian Volz, Office Chambers Eversheds Sutherland (International) LLP 24 Sales Director 5 Product Liability Horizons – Medical Devices Liability at the Cutting Edge of Technology, Florjan Osmani Robotics and AI – Louisa Caswell & Mark Chesher, Addleshaw Goddard LLP 33 Account Director 6 Product Liability in Asia – David Goh & Bindu Janardhanan, Squire Patton Boggs 38 Oliver Smith Sales Support Manager 7 Liability Risks of Automation and Connectivity in a Technologically Advanced World – Paul Mochalski Francis P. Manchisi & Ernest V. Goodwin, Wilson Elser 41 Senior Editors Country Question and Answer Chapters: Suzie Levy, Rachel Williams 8 Australia Clayton Utz: Colin Loveday & Andrew Morrison 46 Chief Operating Officer Dror Levy 9 Brazil Pinheiro Neto Advogados: Sérgio Pinheiro Marçal & Laura Beatriz de Souza Morganti 55 Group Consulting Editor Alan Falach 10 Canada Blake, Cassels & Graydon LLP: Nicole Henderson 62 Publisher 11 China Squire Patton Boggs: Kelly Liu & Elisa Li 68 Rory Smith Published by 12 England & Wales Arnold & Porter Kaye Scholer LLP: Ian Dodds-Smith & Alison Brown Global Legal Group Ltd. Crown Office Chambers: Michael Spencer QC 75 59 Tanner Street 13 France Squire Patton Boggs: Carole Sportes & Valérie Ravit 87 London SE1 3PL, UK Tel: +44 20 7367 0720 14 Germany Taylor Wessing: Henning Moelle & Philipp Behrendt 94 Fax: +44 20 7407 5255 Email: [email protected] 15 Greece Bahas, Gramatidis & Partners: Dimitris Emvalomenos 101 URL: www.glgroup.co.uk 16 Hong Kong Squire Patton Boggs: David Goh & Bindu Janardhanan 108 GLG Cover Design F&F Studio Design 17 India Seth Associates: Karnika Seth & Amit Seth 115 GLG Cover Image Source iStockphoto 18 Indonesia Ali Budiardjo, Nugroho, Reksodiputro: Agus Ahadi Deradjat & Herry N. Kurniawan 122 Printed by Ashford Colour Press Ltd 19 Ireland Matheson: Tom Hayes & Michael Byrne 128 May 2017 20 Italy Gianni, Origoni, Grippo, Cappelli & Partners: Daniele Vecchi & Copyright © 2017 Michela Turra 139 Global Legal Group Ltd. All rights reserved 21 Japan Iwata Godo: Shinya Tago & Landry Guesdon 147 No photocopying 22 Korea SEUM Law: Joohan Han & Jinil Park 156 ISBN 978-1-911367-51-2 ISSN 1740-1887 23 Netherlands Blenheim: Jan Jacobi 163 Strategic Partners 24 Norway Advokatfirma Ræder DA: Ole André Oftebro & Kyrre W. Kielland 170 25 Singapore Allen & Gledhill LLP: Dr. Stanley Lai, SC & Amanda Soon 177 26 Spain Faus & Moliner: Xavier Moliner 188 27 Sweden Synch Advokat AB: Ida Häggström & Vencel Hodák 196 28 Taiwan Lee and Li, Attorneys-at-Law: Patrick Marros Chu & David Tien 202 29 Turkey TURUNÇ: Didem Bengisu & Noyan Turunç 210 30 USA Drinker Biddle & Reath LLP: David B. Sudzus & Daniel B. Carroll 216 Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM Chapter 19 Ireland Tom Hayes Matheson Michael Byrne Supply of Services Act 1980 (“the 1980 Act”). S.10 of the 1980 1 Liability Systems Act operates to add an implied condition to contracts for the sale of goods: that the goods are of “merchantable quality” where a seller 1.1 What systems of product liability are available (i.e. sells them in the course of business. This means that the goods liability in respect of damage to persons or property must be: resulting from the supply of products found to be “[F]it for the purpose or purposes for which goods of that defective or faulty)? Is liability fault based, or strict, kind are commonly bought and durable as it is reasonable to or both? Does contractual liability play any role? Can expect having regard to any description applied to them, the liability be imposed for breach of statutory obligations price (if relevant) and all other relevant circumstances.” e.g. consumer fraud statutes? Contractual liability under the 1980 Act is strict. It must be borne in mind, however, that the principle of privity of contract applies, In Ireland, liability for defective products falls under four main which often makes it difficult for an injured party to sue the headings: manufacturer of a product in contract, since his contract is likely to ■ Statute. be with the retailer of the product. ■ Tort. Criminal Liability ■ Contract. The principal legislation imposing criminal liability in the area of ■ Criminal. product liability is the European Communities (General Product Statute Safety) Regulations 2004, as amended, (“the 2004 Regulations”) The principal product liability statute in Ireland is the Liability for which implemented EC Directive 2001/95. These Regulations make Defective Products Act 1991 (“the 1991 Act”), which was enacted to it an offence to place unsafe products on the market and specify the implement EC Directive 85/374. This Act supplements, rather than duties of producers and distributors in this regard. replaces, the pre-existing remedies in tort and contract (see below). Under the 2004 Regulations, the Competition and Consumer S.2(1) of the Act provides for strict liability, making a producer: Protection Commission (“CPCC”) is given the authority to ensure “[L]iable in damages in tort for damage caused wholly or that only safe products are placed on the market. There is also a partly by a defect in his product.” duty on producers and distributors to inform the CPCC where they It is worth noting that the 1991 Act covers only dangerous, defective know, or ought to know, that a product which has been placed on products. Products which are safe, but shoddy, do not fall within the market by them is incompatible with safety requirements. The its scope. CPCC has also been given the power to order a product recall, as set out in question 1.4 below. Tort In May 2016, the Irish government published a draft Corporate Manufacturers, repairers, installers, suppliers and others may be sued Manslaughter Bill. This draft bill includes the separate indictable in tort for reasonably foreseeable damage caused to those to whom offences of “corporate manslaughter” and “grossly negligent they owe a duty of care. As opposed to liability under the Liability management causing death”. The Bill is based on the Law Reform for Defective Products Act 1991, liability in tort is fault-based. Commission Report on Corporate Killing dated October 2005 which For an action to lie in tort, there must be: recommended that a new offence of corporate manslaughter be ■ a duty of care owed by the producer or manufacturer of the created. The Bill is currently at the initial parliamentary review stage. product; Criminal liability is fault-based and must be proven beyond ■ a breach of that duty of care; and reasonable doubt. ■ a causal relationship between the breach and the damage caused to the user of the product. 1.2 Does the state operate any schemes of compensation Unlike under the 1991 Act, a plaintiff suing in tort may, in certain for particular products? circumstances, succeed in a negligence action for non-dangerous defects. This has been known to happen in Ireland in circumstances where Contract some organ of the State may have a liability. The National Treasury Contracts for the sale of goods are covered in Ireland by the Sale Management Agency (the “NTMA”) manages personal injury and of Goods Act 1893 (“the 1893 Act”) and the Sale of Goods and 128 WWW.ICLG.COM ICLG TO: PRODUCT LIABILITY 2017 © Published and reproduced with kind permission by Global Legal Group Ltd, London Matheson Ireland property damage claims against the State. When performing these Criminal functions, the NTMA is known as the State Claims Agency (the In terms of the criminal law, the 2004 Regulations make a “producer” “SCA”). Whilst this particular case was excluded from the SCA’s who places or attempts to place an unsafe product on the market remit, the most notable instance was the Hepatitis C Compensation guilty of an offence. The 2004 Regulations define a “producer” as: Tribunal, which was set up in 1997 to compensate women who ■ the manufacturer of a product and any other person presenting had become infected with Hepatitis C having been transfused with himself as the manufacturer by affixing to the product his infected blood during pregnancy.
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