The Gazette 1986

APRIL 1986

GAZETTE

(Contd. from p.75) products - a loaf of bread, for example - twelve years is an entirely inappropriate figure. The Council of Europe, who favoured the same approach as was ultimately adopted by the EEC Directive was conscious of the problem but nonetheless considered ten years "an acceptable period in view of the need to fix some limit (ten years being a fair average) and the desirability of affording producers some security". 35 Similarly the framers of the draft Directive considered that ten years "appeared as an average period". 36 This notion of an "average period" may be challenged; the vast range of products, each with their appropriate life-span of use, makes it quite inapt to select any particular period as a cut-off point, since that period will be quite unsuitable for many of these products. 37 The ten-year cut-off period has not been met with universal support by producers, some of whom "argue that the period is too long, that for them to maintain records to establish that goods were not defective when originally sold will be an expensive exercise, and the longer the period for which records must be kept the greater the expense. As the consumer must bear this cost in the price of the goods is it to his advantage to pay for record keeping which can be of benefit on only the most rare occasion?" 38 One of the grounds on which the Scottish Law Com- mission objected to the ten-year " cu t - o f f" point was that it would be unfair to an injured person, who normally would not know on what date the product had been put into circulation. Different cut-off periods would apply in respect of each component: "an injured person wishing to sue a component maker would have at the very least a complicated task in ascertaining whether his action was likely to be time- barred, and evidence to this effect might not emerge until after the injured person has incurred consider- able expense in pursuing his claim." 39 The effect of the cut-off point, moreover, is in some cases to deprive a person of a right of action before he or she sustains an injury. In Watson -v- Fram Reinforced Concrete Co. (Scotland) and Winger Ltd « ((1960) S.C. 92, at 115), Lord Denning said: "No one supposes that Parliament intended to bar a man by a time-limit before he is injured at all . . . A man may lose his right of action before he has got it. Which is absurd." The Constitution was invoked on this issued by Miss Justice Carroll in Morgan -v- Park Development Ltd.,* 1 She considered that "no law which could be described as 'harsh and absurd' or which the courts could say was unreasonable and unjustifiable in principle could also be constitutional". In favouring the date of discover- ability as the date of the accrual of the right of action, Miss Justice Carroll was of the view that: "Whatever hardship there may be to a defendant in dealing with a claim years afterwards, it must be less than the hardship to a plaintiff whose action is barred before he knows he has one. This latter interpretation appears to me indefensible in the light of the Con- stitution." In Daly -v- Avonmore Creameries , 42 McCarthy, J. raised a question as to whether section 43 was man- datory or discretionary. It is perhaps worth noting

that in several jurisdictions in the United States, it is possible to operate contributory negligence rules as appointment (referred to there as "comparative" negligence) in products liability cases where the defendant is strictly liable and the plaintiff is guilty ot contributory negligence. Contributory Negligence Contributory negligence comes into play under the Directive. Article 8, para. 2, provides that: "The liability of the producer may be reduced or dis- allowed when, having regard to all the circumstances, the damage is caused both by a defect in the product and by the fault of the injured person or any person for whom the injured person is responsible." Thus, contributory negligence is permitted to have much the same role as it does at present in a negligence action. Even the notion of imputed contributory negli- gence 43 is allowed to operate. A point worth noting is that there is some doubt as to how a case should be resolved where the plaintiff is guilty of contributory negligence and the defendant is strictly liable (for breach of statutory duty, for example) without any " f a u l t" (as that notion is understood under the Civil Liability Act 1961. In the Supreme Court decision of O'Sullivan -v- Dwyer Walsh, J. interpreted section 43 of the 1961 Act as disentitling the plaintiff to any compensation in such circumstances. Prohibiting on "Contracting Out" Article 12 of the Directive prohibits "contracting out". It provides that the liability of the producer arising from the Directive may not, in relation to the injured person, be limited or excluded by a provision limiting his liability or exempting him from liability. In its original draft, the relevant provision (then Article 10) had specified that liability might not be excluded or limited, without refer-

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