The Gazette 1986

APRIL 1986

GAZETTE

ence to any "provision" to this effect. The original draft, therefore, overrode not merely contractual exclusions of liability but also any assertion by the producer that the consumer, by using the product had voluntarily assumed the risks that might arise from the defectiveness of the product: cf. the Explanatory Mem- orandum to the draft Directive, para. 29. The inclusion in the final text of the reference to a "provision" limit- ing the injured person's liability appears to restrict the scope of the Article. The precise extent of the change is a matter for debate: there may, of course, be a "pro- vision" in a contract, but it would also seem possible for there to be a "provision" in a non-contractual agree- ment, or even (perhaps) in a unilateral notice, involving some degree of communication between the parties. The parallel with the constriction of the volenti defence as a result of section 34 (1) (b) of the Civil Liability Act 1961 is worth considering. 45 If, therefore, Article 12 only prevents limitations or exemptions from liability from efficacy where there are contained in "provisions", it is at least possible to argue that other limitations or exemptions are untouched by Article 12 and therefore capable of efficacy. Whether there is much of a lacuna here is not clear. By way of analogy with McComiskey -v- McDermott * it would in any event be open to a defendant to argue that the par- ticular relationship between the parties, perhaps involving an attempted limitation of or exemption from liability should be a "circumstance", quite possibly an important one, which should be taken into account in determining whether a product is "defective" within the terms of Article 6. Thus, for example, if operating instructions for a bicycle specified that the tyres should be checked at regular intervals, and that, in the event of failure by the owner to do so, the manufacturer could not be liable for any defects which such checks would have revealed, this provision, even if not directly efficacious by reason of Article 12, would surely be a relevant "circumstance" under Article 6. Concurrent Wrongdoers The set of liability among several defendants is cast widely by the Directive. In view of the broad range of liability under Part III of our Civil Liability Act 1961 and our liberal third-party procedure, this approach is generally in harmony with the present law. Article 5 provides that: "Where, as a result of the provisions of this Directive, two or more persons are liable for the same damage, they shall be liable jointly and severally without pre- judice to the provisions of national law concerning "Without prejudice to the provisions of national law concerning the right of contribution or recourse, the liability of the producer shall not be reduced when the damage is caused both by a defect in the product and by the act or omission of a third party." Concluding Observations The Directive on products liability is likely to have important effects on Irish law. The general principles are relatively easy to grasp but several uncertainties remain. Rather than adopting an elaborate and compli- the rights of contribution or recourse." And Article 8, para. 1, provides that:

cated series of detailed specifications, the Directive paints broad strokes. How it eventually works out in practice, only time will tell. Concluded. Footnotes 24. Cf. B. McMahon & W. Binchy, Irish Law of Torts, pp. 204-211 (1981). 25. Explanatory Memorandum to the draft Directive, para. 15. 26. id. 27. Cf. Davoren -v- Fitzpatrick, (1935) Ir. Jur. Re. 23, Cahiil -v- Kenneally, (1955-56) Ir. Jur. Rep. 15, B. McMahon & W. Binchy, Irish Law of Torts, 167-169 (1981). 28. Explanatory Memorandum to the draft Directive, para. 14. 29. Op. cjf., p. 700. 30. Op. cit., p. 706. 31. Id. 32. Kahan, Statutes of Limitations Development of the Discovery Rule, 2 J. of Products Liability 127, at 134 (1978). 33. Cf. J. Brady & T. Kerr, The Limitation of Actions in the Republic of Ireland, ch. 6 (1984). 34 . Op. cit., para. 152. 3 5 . Explanatory Report to the Strasbourg Convention on Products Liability in Regard to Personal Injury and Death, para. 68. 3 6. Explanatory Memorandum to the draft Directive, para. 28. 3 7 . Cf. the views of the Scottish Law Commission, expressed in Eng. Law Com. No. 82 & Scot. Law Com. No. 45, para. 156. 38 . Marriott, Products Liability in Europe - What of the Future?' 3 J. of Products Liability 15, at 16 (1979). 3 9. Op. cit., para. 158. 4 0 . (1960) S.C. 92, at 115. 4 1 . (1983) I.L.R.M. 156(analysed by J. Brady&T. Kerr, op. cit., 50-52, Kerr, 5 Dublin U.L.J. (N.S.) 133 (1983). 4 2. Sup. Ct. 12 July 1984. 4 3 . (as to which see section 35 (1) of the Civil Liability Act 1961, and B. McMahon & W. Binchy, Irish Law of Torts, pp. 223-225 (1981). 4 4 . 119711 I.R. 275. 4 5 . Cf. B. McMahon & W. Binchy, Irish Law of Torts, pp. 225 ff [19811. 4 6 . 11974] l.R. 75.

THE TAXES ACTS THE EIGHT SUPPLEMENT to the loose-leaf volumes "The Taxes Acts" has now been published. The supplement embodies the amendments made by the Finance Act, 1985. Copies of the supplement may be purchased from the Government Publications Sales Office, Sun Alliance House, Molesworth Street, Dublin 2. Price £ 1.60 Revenue Commissioners (postage extra) Dublin Castle.

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