The Gazette 1986

GAZETTE

MARCH 1986

product proved only to have been defective, in the sense of falling short of the legitimate expectations of the consumer. Thus, where a watch caused dermatitis, its user could in certain circumstances sue the manufacturer or supplier in tort but, if it merely went slow, the only remedy lay in contract. Since Costello, J.'s judgment in Ward -v- McMaster and Louth Co. Co., 18 it is now clear that in some cases it will be possible to take negligence proceedings where the defendant has produced a defective rather than danger- ous product. Costello, J. endorsed this extension of the scope of recovery with less hesitation than the majority in the House of Lords decision of Junior Books -v- Veitchi |y a decision whose reasoning Costello, J. found "persuasive". But for the purposes of the Directive, as we have seen, "defectiveness" does not have this wider meaning. Pro- ducts that are safe but shoddy do not fall within its scope. Let us now consider briefly the elements of defectiveness specified in Article 6. The key word is safety: a product is defective when it does not provide the safety which a person is entitled to expect, taking all the circumstances into account. Article 6 mentions three specific circumstances, giving them no particular weight relative to each other or relative to other unspecified circumstances. What weight each should have must depend on the facts of each particular case. The first of these circumstances is " t he presentation of the p r oduc t ". If, for example, a product is represented in the advertising literature and in the detailed descriptive quality, then a consumer who is injured or suffers damage from the product's danger- ousness in lacking this quality may have a right to action.

So where a hot water bottle is represented as being capable to taking boiling water, and it is not, an injured user who relies on this representation may well succeed, on this account, in showing that the hot water bottle did not provide the safety which he was entitled to expect. It would appear that the "presentation" of the product includes an omission to provide information which ought to have been given, to protect the user from harm. Thus, the failure by a producer to refer to an allergic reaction which was known to the producer to affect the product could in some instances be relied on by an injured consumer. The second circumstance specified in Article 6 is " t he use to which it could reasonably be expected that the product would be p u t ". Clearly there are limits to what reasonably may be expected: it is unreasonable, for example, to expect that a hammer should be capable of being used successfully as a car jack. Moreover, a com- petent adult who deviates widely from the specified instructions as to the use of a product may have no right to complain about injuries resulting from his or her failure to comply with the directions. So far as misuse of a product is concerned, it may be that the European Directives will be interpreted as broadly as in the United States so as to apply a modif- ication of the forseeability rule akin to that in Hughes -v- Lord Advocate. 1 " In Moran -v- Faberge Inc., 1] a seventeen-year-old girl injured a friend of hers when she poured some cologne onto a lighting candle in order to make it a scented candle. The cologne was highly inflam- mable, but no warning to this effect was contained on the bottle. Liability was imposed. The majority of Mary- land Court of Appeals considered that it was not necessary for the plaintiff to show that Faberge ought to have foreseen that its cologne would be used in this idiosyncratic manner; it was necessary only that "it be foreseeable to the producer that its product, while in its normal environment, may be brought near a catalyst, likely to be found in that environment, which can untie the chattel's inherent danger". The third circumstance specified by Article 6 is " t he time when the product was put into circulation". This factor may operate in one of two ways. First, the passage of time may be relevant as throwing light on what a person is "entitled to expect". To take an obvious case, one would not be entitled to expect that a chocolate cake would be edible after a year. Indeed, one could surely expect that any consumer products, after sufficient wear and tear, would eventually become likely to be unsafe. That is one of the reasons why we change our cars and electrical appliances periodically. The second way the time factor specified by Article 6 operates is somewhat different. It relates to the fact that safety standards may change over a period of time. This change may be as a result of a development in the state cf scientific and technical knowledge: such a case is covered by Article 7, clause (e) and will be considered below. But safety standards mav also change without direct reference to such scientific and technical develop- ments. What may have been an acceptable risk from a product twenty years ago may simply cease to be accept- able to the community over this period. For example, there is a greater sensitivity to questions of hygiene and road safety today than there was some time ago. The thrust of Article 6 is to seek to ensure that producers will 41

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