makes himself out to be the producer by virtue of attaching his name, brand, trademark etc. to the product.
has imported the product into the EU to supply it to another person as part of his business.
has supplied the product, where the producer cannot be identified and any attempt by the injured party to elicit the producer's identity is frustrated or ignored.
Electricity is considered a product for the purposes of the Act
Defects
A defect is anything which results in the product failing to provide the safety a consumer is entitled to expect, taking into account all the circumstances. The Act expressly mentions three:
The presentation of the product - e.g. warning labels, instructions, probably even serving suggestions.
The use the product could reasonably expected to be put - jamming a fork into a toaster for example would almost certainly not be actionable.
The time the product was put into circulation - relevant in that the safety of any product will diminish given enough time and in addition the standards expected by the community may increase
Warning labels
Over the past number of years a number of Irish cases have dealt with the issue of warning labels on products While developed in the context of negligence, they seem likely to inform future court judgments in terms of what constitutes a suitable presentation of a product. In O'Byrne v Gloucester the plaintiff, a young girl, was standing next to an indoor heater when her cotton dress caught fire, burning her badly. The defendants were found guilty of negligence, in that they failed to avoid a grave and foreseeable risk by taking the easily affordable precaution of affixing a warning to the dress. According to the decision in , a producer of a flammable garment, need only give a basic warning. As McGuinness J said: "In addition, I find it somewhat difficult to follow the logic of the argument asserted on behalf of the plaintiff that a warning “KEEP AWAY FROM FIRE” merely “tells people what they know already” and is too bland. The warning clearly indicates that the garment is made of flammable material - otherwise there would be no need for the warning."
Defences
There are six specific defences available. Being a strict liability statute, the defendant's taking reasonable care is irrelevant. It is a defence if:
it is proved the defendant did not put the product into circulation.
given the circumstances, it is probable that the defect did not exist at the time the product was put into circulation, or it came into being afterwards.
the product was not manufactured for an economic purpose nor as part of the defendant's business.
