Liability for dangerous tools

mrjoneill

This the continuation of a topic I started on the Consumer Issue board on that of where the liability rest with dangerous tools sold by Irish vendors.
http://www.boards.ie/vbulletin/showthread.php?t=2056647096.


It appears to me that the only legislation on the Irish statute book on this is the” LIABILITY FOR DEFECTIVE PRODUCTS ACT, 1991”, which imposes liability on the mnf only. Ireland has failed to transpose the more comprehensive 2005/42/EC and the 2006/42/EC Directives on product safety into Irish law. Member States had until 29th June 2008 to adopt this. What really amazes me in this is the avoidance of retailer of all liability. It appears to me that a retailer can import from say China where traceability is difficult, put on sale here and leave the consumer in the quagmire of perusing a mnf which might not be easily identified and not responsive to Irish court judgements. Looks like to me that there is a serious lacuna in consumer protection in that the retailer avoids all liability and this is where the primary liability should rest.

dermot_sheehan

The 2006 Directive is apparently implemented by
http://www.attorneygeneral.ie/esi/2008/B26482.pdf

Farcear

mrjoneill wrote: »

Member States had until 29th June 2008 to adopt this.

1. Ireland always transposes late.

2. Some Directives can have legal effect after the transposition deadline if the Member State hasn't transposed them if the Directive meets certain criteria; the principle of direct effect.

jblack

Farcear wrote: »

1. Ireland always transposes late.

2. Some Directives can have legal effect after the transposition deadline if the

I remember many years ago learning EU law; lecturer said if you were stuck and there was a serious breach you could probably throw down Comm v Ireland, and if it was an absolutely ridiculous breach then lash down Comm v Greece - the chances are you'd hit on something, and at the very least you understood who were the principal offenders of EU regs and directives.

McCrack

OP you are very well protected in this instance. A lacuna doesn't exist as you suggest. The 1991 Act will ultimately fix the retailer with liability. I had a quick look at the linked thread and there certainly appears to be good grounds to take a claim. I would suggest speak with a personal injury solr for professional advice.

BornToKill

mrjoneill wrote: »

This the continuation of a topic I started on the Consumer Issue board on that of where the liability rest with dangerous tools sold by Irish vendors.

There is a distinction between dangerous products and defective products. A thing can potentially be quite dangerous to operate - a gun, say, or a chainsaw - without in any way being faulty or defective.

mrjoneill

McCrack wrote: »

OP you are very well protected in this instance. A lacuna doesn't exist as you suggest. The 1991 Act will ultimately fix the retailer with liability. I had a quick look at the linked thread and there certainly appears to be good grounds to take a claim. I would suggest speak with a personal injury solr for professional advice.

I had not spotted this in the, ” LIABILITY FOR DEFECTIVE PRODUCTS ACT, 1991”
S.2(e) any person who has imported the product into a Member State from a place outside the European Communities in order, in the course of any business of his, to supply it to another, or
But this does not cover vendors selling items produced in the EU and this act/directive is largely a check on mnf not vendors.

mrjoneill

BornToKill wrote: »

There is a distinction between dangerous products and defective products. A thing can potentially be quite dangerous to operate - a gun, say, or a chainsaw - without in any way being faulty or defective.

Almost most items have the potential to be dangerous if used incorrectly such as driving a nail with a hammer can cause an injury if not done properly. On the gun analogy these are not sold in supermarkets and are sold under far stricter conditions and if I was to follow on the analogy of an unsafe gun, it would be dangerous if it has a hair trigger action and if closer to my issue if its recoil caused a serious shoulder /hand injury in its ordinary usage, then that too would make the gun dangerous. Going on the NCA criteria of what is a safe product, “A safe product is one that does not cause harm when used in the normal way.” . The corollary of it is if it does not satisfy this it then must be a dangerous product. The NCA monitors products on sale in the Irish market along with enforcing banning them also manages Ireland’s input to the EU product safety rapid alert system, RAPEX. That is reporting back to the EU products which were authorised for sale in Ireland, If they believe they present a risk to the health and safety of consumers.


One does not expect to find in a supermarket in between the apples and the oranges a devise on sale which in its normal usage is capable of wrenching your shoulder out of its socket and one should expect if such it’s sold its with the warnings to the danger. Then again one could look at giving warnings of the potential dangers but that would be acknowledgement by the vendor that the product is dangerous. And if one looks at the post of people who use power tools continually one can clearly see their alertness and caution to the usage of high power tools and the questioning of the wisdom of having them on sale on supermarkets. One would also expect going on the EU directive transposed into Irish law as one of the posters pointed out, such tools should incorporate the latest safety features and more importantly “where the machinery may be used by a consumer, that is to say, a non-professional operator, the manufacturer should take account of this in the design and construction”.


And for the usage of dangerous and defective I do believe its circular and they could be interchangeable in that giving its ordinary meaning defective means faulty resulting in the tool in this case a power drill being defective. Or the drill was dangerous because it did not have the latest in build safety features thus defective. Where it was sold to an unsuspecting consumer there is an onus on the mnf to the design and construction to the ordinary consumer’s safety. S.I. No. 199/2004 — European Communities (General Product Safety) Regulations 2004 defines a ““dangerous product” means any product which is not a safe product”.

mrjoneill

Another hypothetical question what are the benefits of needing a solicitor to take up a case after all don’t all personal injuries claims now pass through the Personal Injuries Assessment Board and using its book of quantum decide on what a claim is worth that is if there is a valid claim.




I have come across another agency The National Claims Assessment Service. Don’t know who pays for their service or anything else but going on their web site.


“The National Claims Assessment Service is a leading provider of information relating to claims in Ireland. We provide high quality, relevant and up to date information on all types of claims for compensation from product liability to vehicular damage. We hope that through the provision of such information the public will be made fully aware of their legal entitlements to obtain compensation.”

“The National Claims Assessment Service has its foundations in the mid 1990s and has been operating successfully since that time. To date we have informed countless thousands of people or their rights and who have subsequently recovered millions of pounds and euros of compensation they were entitled to.”

Gurgle

mrjoneill wrote: »

Where it was sold to an unsuspecting consumer there is an onus on the mnf to the design and construction to the ordinary consumer’s safety.

Every power tool comes with a manual, and at least half the manual is dedicated to safety instructions.

You used it wrong, otherwise you would not have gotten hurt.

Following this logic would see everything from a steak knife to a jigsaw withdrawn from sale due to the potential for injury through misuse.

We have enough nanny-state already.

mrjoneill

Gurgle wrote: »

Every power tool comes with a manual, and at least half the manual is dedicated to safety instructions.

You used it wrong, otherwise you would not have gotten hurt.

Following this logic would see everything from a steak knife to a jigsaw withdrawn from sale due to the potential for injury through misuse.

We have enough nanny-state already.

Repeat from other thread

No, the only warning was of electrical shock, and the use of protection of hearing, dust and safety goggles.
There is a complete absence of warning of "kickback".

http://www.boards.ie/vbulletin/showthread.php?t=2056647096&page=2

And if there was a warning such as this tool has a dangerous kickback what then.....

McCrack

mrjoneill wrote: »

I had not spotted this in the, ” LIABILITY FOR DEFECTIVE PRODUCTS ACT, 1991”
S.2(e) any person who has imported the product into a Member State from a place outside the European Communities in order, in the course of any business of his, to supply it to another, or
But this does not cover vendors selling items produced in the EU and this act/directive is largely a check on mnf not vendors.

Yes exactly S 2 (2) (e) concerns a retailer that imports a product for resale from outside the EU.

But your fixing your attention on that subsection alone. The Act is more than that. You can't just read a piece of legislation in isolation of other parts to it and as well you need to consider other legislation that can often augment the piece you are reading.

The 1991 Act does cover EU and well as non-EU importers of products.

Look at the whole of S2 and you will see what I mean:

http://www.irishstatutebook.ie/1991/en/act/pub/0028/sec0002.html#sec2

McCrack

Gurgle wrote: »

Every power tool comes with a manual, and at least half the manual is dedicated to safety instructions.

You used it wrong, otherwise you would not have gotten hurt.

Following this logic would see everything from a steak knife to a jigsaw withdrawn from sale due to the potential for injury through misuse.

We have enough nanny-state already.

With respect you can't say that without firstly knowing the legislative safety requirements for such equipment and whether the tool in question that the OP used was in conformity with those. If it wasn't he potentially has an excellent case.

Expert opinion is needed to establish the above.

mrjoneill

McCrack wrote: »

Yes exactly S 2 (2) (e) concerns a retailer that imports a product for resale from outside the EU.

But your fixing your attention on that subsection alone. The Act is more than that. You can't just read a piece of legislation in isolation of other parts to it and as well you need to consider other legislation that can often augment the piece you are reading.

The 1991 Act does cover EU and well as non-EU importers of products.

Look at the whole of S2 and you will see what I mean:

http://www.irishstatutebook.ie/1991/en/act/pub/0028/sec0002.html#sec2

But this would have application of vendor liability where the mnf was not identifiable and this is not the case here.

S 2(3) Without prejudice to subsection (1) of this section, where damage is caused wholly or partly by a defect in a product, any person who supplied the product (whether to the person who suffered the damage, to the producer of any product in which the product is comprised or to any other person) shall, where the producer of the product cannot by taking reasonable steps be identified, be liable, as the producer, for the damage if—

McCrack

mrjoneill wrote: »

But this would have application of vendor liability where the mnf was not identifiable and this is not the case here.

S 2(3) Without prejudice to subsection (1) of this section, where damage is caused wholly or partly by a defect in a product, any person who supplied the product (whether to the person who suffered the damage, to the producer of any product in which the product is comprised or to any other person) shall, where the producer of the product cannot by taking reasonable steps be identified, be liable, as the producer, for the damage if—

I am not sure what you are actually querying here. What you have quoted means that the retailer in the absence of identifying the manufacturer is wholly liable for a selling a defective product.

mrjoneill

McCrack wrote: »

I am not sure what you are actually querying here. What you have quoted means that the retailer in the absence of identifying the manufacturer is wholly liable for a selling a defective product.

What I’m stating is that there is no liability on the vendor by this act where the mnf is EU and is clearly identified. And the mnf name in my case is clearly stamped on the drill and it’s German.

davo10

Mccrack in another forum the op said he jammed the drill bit in the wood which is mis-use of the tool, this is a powerfull machine so instead of driving the bit forward the machine recoiled backward when he pressed the trigger.

McCrack

mrjoneill wrote: »

What I’m stating is that there is no liability on the vendor by this act where the mnf is EU and is clearly identified. And the mnf name in my case is clearly stamped on the drill and it’s German.

Why should there be when an Act such as this imposes strict liability on the manufacturer of a defective product? It would be unfair otherwise. Strict liability means negligence doesn't have to be shown/proved.

As a consumer you are not prejudiced in seeking compensation for personal injuries caused from a defective product whatsoever. The legislation is actually very pro-consumer/injured party. A lacuna you suggested before would suggest that an injured person from a defective product would be left without any redress but that is not the case at all.

baords dyslexic

Can we add some more information here from the other thread it seems you were using an SDS drill designed for drilling masonary with an adaptor in the SDS chuck to hold a spade bit and drilling wood.

Was the adaptor you used supplied with the drill?

If it was then you might have a case if not it really is your own fault.

mrjoneill

McCrack wrote: »

Why should there be when an Act such as this imposes strict liability on the manufacturer of a defective product? It would be unfair otherwise. Strict liability means negligence doesn't have to be shown/proved.

As a consumer you are not prejudiced in seeking compensation for personal injuries caused from a defective product whatsoever. The legislation is actually very pro-consumer/injured party. A lacuna you suggested before would suggest that an injured person from a defective product would be left without any redress but that is not the case at all.

I have never used the words “strict liability”, these are your words not mine. And my understanding of “strict liability” is that the plaintiff/complainant has only to establish such and such happened, this has nothing to do with negligence.
As for the liability of the vendor this seems to come under the common law rules of “negligence” rather than statutory. What I'm stating is if there was greater statutory constraints on the vendor it would make the vendor much more cautious of what they sell.

mrjoneill

baords dyslexic wrote: »

Can we add some more information here from the other thread it seems you were using an SDS drill designed for drilling masonary with an adaptor in the SDS chuck to hold a spade bit and drilling wood.

Was the adaptor you used supplied with the drill?

If it was then you might have a case if not it really is your own fault.

I don’t know what expertise you being to the table as in a parallel thread you have rested your case without explanation and here you seek further information before going on to make judgement is also without explanation. I don’t see what is your point is here either as a spade drill-bit can come in sds shaft form too. And just it was an sds drill does not make it strictly a masonry drill, it’s in fact a multipurpose drill and was sold as such. It has hammer action and non hammer action which is used for wood as well as a chisel action. And for some peculiar reason you decide if it came with an sds shafted chuck it radically changes the matter is without explanation. It did come with an sds shafted chuck but I can’t see what radically difference that makes with the matter.

Pkiernan

Why don't you stop giving out to people who disagree with you, and find a solicitor and sue the retailer?

Then report back if you are successful. Better than moaning on about it here on the Forums.

I think you did not use the drill correctly. Perhaps a solicitor/judge/jury will disagree with me.

Pkiernan

"Quick...somebody call me a doctor solicitor"

McCrack

mrjoneill wrote: »

I have never used the words “strict liability”, these are your words not mine. And my understanding of “strict liability” is that the plaintiff/complainant has only to establish such and such happened, this has nothing to do with negligence.
As for the liability of the vendor this seems to come under the common law rules of “negligence” rather than statutory. What I'm stating is if there was greater statutory constraints on the vendor it would make the vendor much more cautious of what they sell.

I mentioned "strict liability" because the 1991 Act is a strict liability Act. It helps explain to you the lacuna you seem to think exists in the legislation vis a vis the retailer escaping liability.

You're right when you say the plaintiff only has to show the defect and the injury under the 1991 Act. There is no need to show negligence. That essentially is what strict liability is. Consequently it's indulgent towards injured persons such as yourself. The trade-off for this indulgence is that the retailer can (but not always) be absolved from liability for selling a defective product.

You say that there should be more strict statutory controls that what is there at the minute on vendors in what they sell. I think that would be too onerous (and the legislature seems to agree) simply because the retailer is the seller and wouldn't have the technical expertise to be satisfied products it sells are free from defects. Common negligence does however apply to retailers so they are under a duty of care and can be sued on that basis.

In any event you have identified the manufacturer and from reading your previous posts you have done a lot of the leg work for a solicitor to instruct to see whether you have a good cause of action against the manufacturer (and possibly the distributor/retailer as co-defendants)

mrjoneill

McCrack wrote: »

I mentioned "strict liability" because the 1991 Act is a strict liability Act. It helps explain to you the lacuna you seem to think exists in the legislation vis a vis the retailer escaping liability.

You're right when you say the plaintiff only has to show the defect and the injury under the 1991 Act. There is no need to show negligence. That essentially is what strict liability is. Consequently it's indulgent towards injured persons such as yourself. The trade-off for this indulgence is that the retailer can (but not always) be absolved from liability for selling a defective product.

You say that there should be more strict statutory controls that what is there at the minute on vendors in what they sell. I think that would be too onerous (and the legislature seems to agree) simply because the retailer is the seller and wouldn't have the technical expertise to be satisfied products it sells are free from defects. Common negligence does however apply to retailers so they are under a duty of care and can be sued on that basis.

In any event you have identified the manufacturer and from reading your previous posts you have done a lot of the leg work for a solicitor to instruct to see whether you have a good cause of action against the manufacturer (and possibly the distributor/retailer as co-defendants)

I don’t see action for damages against the mnf amounting to strict liability in that it would be just sufficient for me to establish the mnf manufactured the tool and I suffered injury as a result. I do concede “civil strict liability” is more ambiguous than criminal but I still would have to establish other factors before such liability would fall into place. That is it’s not just sufficient to establish that such a company manufactured the tool and I as a consequence suffered the injury. I would have to establish there was FAULT with the mnf in that there was noncompliance with relevant harmonizing standards, and this would involve having someone giving professional technical evidence to this effect and the mnf should have such awareness. I’m quite sure the mnf would be raising the frequent defense as in such cases of plaintiff misuse along with many others. I’m not aware of any stipulation to express declaration of “strict liability” in the legislation.

On the other hand my understanding of negligence is that of a common law remedy that primarily involves foresight to the dangers where there is proximity between parties resulting in loss. I’m sure the vendor will put forward a defense to this and I’m sure a substantial one to rebuff my claim.


I don’t necessarily agree with your synopsis on the reason there is no statutory liability on the vendor. Rather I look at it as the EU looking abstractly at the EU as a single entity whereas it’s a much more complex, that of nation states having devolved some of their powers but still retaining incompatible systems. I can’t serve a writ on a non Irish entity to appear in an Irish court without their cooperation and judgements got in Irish courts on foreign entities depend on the goodwill of the foreign jurisdiction to back them. I understand there is EU Regulations on this but just wonder what in practice the efficacy of it is as there are language barriers, different legal systems and the whole logistics of getting incompatible systems meshing.


I would argue due to the above difficulties and the point of contact is between the consumer and the vendor and vendor and mnf it would be much easier and streamlined for the consumer to have this option. The vendor usually has much greater financial muscle could be enabled to pursue judgments got against it by consumers to recover damages against the mnf and after all it’s between these entities that the contractual relationship exists.


I have got some leg work done and I wish to thank those who assisted and gave pointers in the right direction :):) but I have not made contact with anyone who has firsthand experience of product liability litigation and how they run.

davo10

Have you given due consideration that you were at fault for jamming the bit and mis-used the appliance? Are you looking for someone else to blame for your inept handling of the device?

mrjoneill

davo10 wrote: »

Have you given due consideration that you were at fault for jamming the bit and mis-used the appliance? Are you looking for someone else to blame for your inept handling of the device?

Repeat from other thread
It’s the nature of the beast that drill bits get snagged especially spade-bits and hole-drill-bits whether they are for concrete or timber.
http://www.boards.ie/vbulletin/showthread.php?t=2056647096&page=2


This is something that the mnf and the vendor should have being aware of and thus the need to have a safe product.

davo10

If something wraps around the blades of a lawn mower while it's on, you don't put your hands in to free it or you lose your fingers, if a drill bit jams you don't keep your finger on the trigger, it's common sense and you should have known it could injure you.

mrjoneill

davo10 wrote: »

If something wraps around the blades of a lawn mower while it's on, you don't put your hands in to free it or you lose your fingers, if a drill bit jams you don't keep your finger on the trigger, it's common sense and you should have known it could injure you.

Where did u get the idea I used my hand to free a snagged drill bit???????????????:mad::mad:
My hand was not wrapped around a drill-bit rather a drill wrapped my hand around it.

davo10

I'm sitting here with 3 builders and told them your situation, all 3 said a powerful drill will continue to rotate when bit jams and the more powerfull the drill the more powerfully it will rotate, if the bit is stuck the powerfull motor will cause the drill itself to turn if you keep pressing the trigger.

mrjoneill

davo10 wrote: »

I'm sitting here with 3 builders and told them your situation, all 3 said a powerful drill will continue to rotate when bit jams and the more powerfull the drill the more powerfully it will rotate, if the bit is stuck the powerfull motor will cause the drill itself to turn if you keep pressing the trigger.

yah that's the situation and the kickback is too fast for one to get their hands out of danger. That's my case like:D:D:D:D:D

davo10

If you drive a Porsche and crash on a corner, could you argue you could not turn the wheel fast enough when your foot was on the accelerator?

mrjoneill

I must say not to my surprise but on scratching the surface a bit more I find it’s a product of the PRC, badged as appearing EU .....ha ha so I can go after the vendor after all using the Liability For Defective Products Act, 1991 and the relevant EU transposed directives.:p:p:p:p:):):D

Discodog

mrjoneill wrote: »

yah that's the situation and the kickback is too fast for one to get their hands out of danger. That's my case like:D:D:D:D:D

Not true. The drill has a speed control & it is up to you to use an appropriate speed for the task. You cannot expect instructions to state the obvious. There has to be an implication that you will buy the appropriate tool & use it in the appropriate manner. Common sense dictates that a drill, that you buy because it is powerful, will have a lot of torque. If you were concerned about torque effects you could of purchased a drill with an anti kickback feature at a much higher price.

mrjoneill

Discodog wrote: »

Not true. The drill has a speed control & it is up to you to use an appropriate speed for the task. You cannot expect instructions to state the obvious. There has to be an implication that you will buy the appropriate tool & use it in the appropriate manner. Common sense dictates that a drill, that you buy because it is powerful, will have a lot of torque. If you were concerned about torque effects you could of purchased a drill with an anti kickback feature at a much higher price.

I think you get things confused here the relationship between speed and torque. The reason gears are in cars is to lower the speed to give greater torque. As for controlling the speed in this particular drill, this was limited and then again one has to consider the efficacy of using drills at very slow speed.
As for your other assumptions I believe it’s reasonable for the vendor to state the “obvious” as you so term it to the unsuspecting public. I would like to remind you this was purchased in a supermarket where there should be greater awareness of consumer safety not a hardware store where one may be dealing with trade people who would be more familiar with these issues.

Discodog

mrjoneill wrote: »

I think you get things confused here the relationship between speed and torque. The reason gears are in cars is to lower the speed to give greater torque. As for controlling the speed in this particular drill, this was limited and then again one has to consider the efficacy of using drills at very slow speed.
As for your other assumptions I believe it’s reasonable for the vendor to state the “obvious” as you so term it to the unsuspecting public. I would like to remind you this was purchased in a supermarket where there should be greater awareness of consumer safety not a hardware store where one may be dealing with trade people who would be more familiar with these issues.

You mentioned your inability to release the trigger in time. Had you of started at a low speed this would of been easier. There are lots of reasons why a drill will snag & spade end bits are especially susceptible. Drills like this are sold in supermarkets & DIY stores where many of the buyers would not be professionals. If the instructions had mentioned torque & I would not be surprised if the specification did, what would you of done differently ?

It's not as if you can avoid high torque in a powerful drill - it requires this to be able to do it's job. So you can hardly be surprised when it does what it says it will do.

mrjoneill

Discodog wrote: »

You mentioned your inability to release the trigger in time. Had you of started at a low speed this would of been easier. There are lots of reasons why a drill will snag & spade end bits are especially susceptible. Drills like this are sold in supermarkets & DIY stores where many of the buyers would not be professionals. If the instructions had mentioned torque & I would not be surprised if the specification did, what would you of done differently ?

It's not as if you can avoid high torque in a powerful drill - it requires this to be able to do it's job. So you can hardly be surprised when it does what it says it will do.

Drill manual states drill speed should not be changed while in use.
And as you state it’s the tail piece of the spade bits that has the propensity to snag.
As for the rest.... have being using drill for years without difficulty, my last one was rated 750 W and I used for years without issue and did not expect or was aware that power drill “kickback” could cause injury nor did the vendor or mnf indicate this.

Discodog

Snagging is caused by the bit jamming due to a combination of the choice of bit & material being drilled. Neither of these are under the control of the drill manufacturer. In both threads you seem determined that the manufacturer is at fault & it would seem that few agree with you.

ResearchWill

Discodog wrote: »

Snagging is caused by the bit jamming due to a combination of the choice of bit & material being drilled. Neither of these are under the control of the drill manufacturer. In both threads you seem determined that the manufacturer is at fault & it would seem that few agree with you.

I would agree with you. For the OP to prove that the drill was either faulty or had a design flaw he will need an expert report to show same. It's not as simple as saying I used drill got injured now pay me. It will be required to have a medical report to show injury and a report to show drill used correctly was at fault.

mrjoneill

ResearchWill wrote: »

I would agree with you. For the OP to prove that the drill was either faulty or had a design flaw he will need an expert report to show same. It's not as simple as saying I used drill got injured now pay me. It will be required to have a medical report to show injury and a report to show drill used correctly was at fault.

That goes without saying for one to make a claim one must suffer loss and as for the validity I think you should read the full thread “in that a devices sold to an ordinary consumer and in normal usage should not cause injury”. Using a spade drill-bit is normal usage.

Discodog

There are lots of "injury lawyers" that operate on a no win no fee basis. If you have a good case then why not contact them ?

ResearchWill

mrjoneill wrote: »

That goes without saying for one to make a claim one must suffer loss and as for the validity I think you should read the full thread “in that a devices sold to an ordinary consumer and in normal usage should not cause injury”. Using a spade drill-bit is normal usage.

I read the full thread, the OP has only stated he used the drill correctly there is no evidence other than his word that this is correct. I only advised what the OP would require for a case.