In Connolly v FAS & anor  IEHC 472, the High Court held that a machine was a defective product even though it had been certified by an independent certifying authority in France in 2010, as meeting the European Machinery Directives, and its design complied with European standards.
The plaintiff sustained a significant injury while attending at a training course at the first defendant’s (FAS) premises. The injury occurred when the plaintiff pushed back a sliding table which was part of a panel saw machine which was blocking his way. The saw was manufactured by the second named defendant (Werkhuizen). The plaintiff placed fingers of his left hand underneath the sliding table which became caught between the edge of the sliding table and the edge or metal plates of the platform and as a result he suffered significant injuries to his middle and ring fingers.
The plaintiff issued proceedings for negligence and breach of statutory duty against FAS, for failing to provide a safe place of work and safe machinery, and against Werkhuizen for manufacturing and supplying an allegedly defective product.
It was accepted by the engineers for all three parties that the edge of the table presented a shearing hazard and that the risk assessment of FAS ought to have identified this hazard. Following the accident, FAS, with the agreement and cooperation of Werkhuizen, fabricated a “D-plate” to the front of the sliding panel which neutralised the hazard.
FAS did not significantly contest that it had a liability to the plaintiff but rather sought to fix liability upon Werkhuizen as manufacturer of the saw.
Werkhuizen argued that the machine had been in place since 1995 and used by trainees in FAS with no reported incidents. Thousands of machines had been manufactured for sale in Europe and there had been no other similar accidents. Werkhuizen also pointed out that the machine as designed was certified by an independent certifying authority in France in 2010, as meeting the European Machinery Directives and the design of the sliding table complied with European standards.
Liability of FAS
The Court found that FAS was liable to the plaintiff due to their negligence and breach of statutory duty in relation to the risk assessment, and also a breach of statutory duty under the Safety in Industry Acts in failing to have a safe system and place of work in that they allowed an unprotected shearing hazard.
Liability of Werkhuizen
The Court noted that a manufacturer can be subject to strict liability of a product under the Liability for Defective Products Act 1991 (the 1991 Act), which provides at Section 2(1):-
“The producer shall be liable in damages in tort for damage caused wholly or partly by a defect in his product.”
The Act also provides that a product is “defective” if “it fails to provide the safety which a person is entitled to expect, taking all circumstances into account…”.
The Court held that the machine was a defective product given the danger of a shearing injury at the unprotected end of the sliding table. It also held that the fact that the machine was certified by an independent certification body did not necessarily exempt Werkhuizen from liability for a defective product. Neither was the fact that no other persons were injured by the machine an answer to the claim.
The Court then considered Section 6 of the 1991 Act which provides a defence if:-
“The defect is due to compliance by the product with mandatory Regulations issued by the public authorities.”
However, the Court held that although the saw was not in specific breach of any EU standards, there was no obligation on Werkhuizen to manufacture the saw in the particular manner so this section did not provide a defence to the plaintiff’s claim.
The Court also considered the defence under Section 6(e) of the 1991 Act which provides:-
“That the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered…”
However, the Court did not believe that the state of scientific knowledge had anything to do with the failure to discover the defect and accordingly, this defence was not open to Werkhuizen.
Accordingly, the Court held that Werkhuizen was also liable to the plaintiff for the manufacture of a defective product.
Both defendants argued that the plaintiff was guilty of contributory negligence for putting his hand under the sliding table, as it ought to have been clearly evident to him that there was a possibility of an injury.
The Court was of the view that, as neither of the defendants in their risk assessments identified this hazard, it was entirely unrealistic to expect that the plaintiff ought to have anticipated the shearing hazard. Accordingly, the plaintiff could not be guilty of contributory negligence.
Apportionment of Liability
In assessing the degrees of fault, the Court held that liability should be apportioned two thirds against FAS and one third against Werkhuizen.
For further information, please contact Paula Mullooly or your usual contact in A&L Goodbody.