Assembly of a product amounts to manufacturing for the purposes of the Liability for Defective Products Act 1991

In McGarry v McGarry & ors [2015] IEHC 426 the High Court made a finding of liability for personal injuries against the third defendant who was the supplier of a glass-top table which had shattered and caused personal injuries to the three year old plaintiff, resulting in partial amputation of her big toe.  The court apportioned liability between the supplier of the table and the second named notice party, who had commissioned and procured the manufacture of the table.  Liability was apportioned one third against the supplier of the table and two thirds against the third party.

Facts
The 1st and 2nd defendants purchased the glass top table from the 3rd defendant.  The plaintiff was aged 3 at the time of the accident. No one old enough to give sworn evidence witnessed the accident, however, it involved the collapse of a glass table top which had fallen in such a way that it caused an amputation of the plaintiff’s big toe. The legs of the table in question were screwed into phalanges which were glued onto the under surface of the glass. The phalanges and legs were manufactured separately and designed in such a way that the legs were to be to be screwed into the phalanges as part of an assembly process intended to be carried out by the retailer or end user.

The 3rd defendant was given leave to join the 1st and 2nd third parties to these proceedings however the 1st third party was let out of the proceedings as it was not involved with the design or manufacture of the table in question.  The table was manufactured under licence from the 2nd third party. Assembly instructions were provided by the manufacturing company which also contained a warning against placing a static weight on the table exceeding 20 kilograms. In addition the instructions contained a disclaimer in respect of any damage arising as a result of misuse of the table.

Decision
There was general agreement between the engineers that the force which caused the incident was not excessive and the judge was satisfied that the preponderance of the engineering evidence was that the plaintiff had clambered over the table top from the sofa in front of it.

There was some discussion as to whether the failure of the table occurred as a result of microscopic damage occurring to the table prior to the accident which so weakened it that it could not withstand the force exerted on it by the plaintiff. However the Judge noted that there was no evidence before the court of microscopic damage to the table by any of the defendants.

The issue then arose as to whether there was an inherent defect in the design and/or manufacture of the table or whether there was an over tightening of the legs during assembly or a combination of both these factors.

The Court noted that the European Committee for Standardisation, (CEN) had provided a provisional standard for domestic furniture (ENV 12521) which indicated that the test requirement for low tables is that they should be able to withstand a vertical force of just over 100kg. There was no evidence of any testing having been carried out in relation to this particular model of table nor that the table was manufactured in accordance with the ENV. No evidence was given on behalf of the 2nd third party as to what enquiries, if any, it had made of the manufacturer with regard to compliance with any standards, including the ENV.

The table was assembled in the premises of the 3rd defendant by a firm of assemblers.  The 3rd defendant gave evidence that after assembly of the table the instructions, together with any other product documents, would have been placed in an envelope and that at the time of sale or delivery the practice was to give that to the purchaser. However the 3rd defendant could not say whether or not such an envelope had been given to the 1st and 2nd defendants. The 1st and 2nd defendants gave evidence that there was no warning on any documentation received by them concerning a maximum weight limit nor were they aware of a disclaimer for any damage arising from misuse of the tables. The Court found that the weight limit was a matter of product safety which the supplier was obliged to convey to the purchaser together with the disclaimer.

In the absence of any evidence that the table was damaged during display, or whilst being transported by or in service with the 1st and 2nd defendants, the Court held that the only credible explanation for a failure other than a design and/or manufacturing defect was due to over tightening of the table legs during assembly. However, the Court found that over tightening of the legs was, at best, a contributory cause of the failure. The very fact that the table top was unable to bear the weight of a 3 year old clambering across it when it ought to have been able to withstand a weight of 100 kg without failure could, on the preponderance of the evidence, only lead to the conclusion that the table was not designed and/or manufactured in accordance with the ENV standards.  Conversely, if it had been so designed and manufactured it was difficult to see how the accident would have occurred.

In the circumstances the 1st and 2nd defendants were found not liable for the injury to the plaintiff.  

The Court was satisfied on the evidence, and on the balance of probabilities, that when the table was being assembled on behalf of the 3rd defendant, the legs were tightened in such a way as to exert sufficient tension forces to the glass so as to cause some microscopic damage which contributed to the fracture of the table top. This damage was reasonably foreseeable and accordingly constituted negligence for which the 3rd defendant was vicariously liable.

The 3rd defendant as a distributor and supplier of the table also owed a duty of care to communicate the warning and disclaimer contained in the instructions which accompanied the table.

The Court was also satisfied that the 3rd defendant had a liability under the Liability for Defective Products Act 1991.  Section 2(1) of that Act defines “producer” as including the manufacturer or producer of a finished product. The Court held that the assembly of component parts, none of which are manufactured by the assembler but resulting in the production of a product can nevertheless be properly described as and comes within the meaning of the term “manufacturing".  The Act goes on to provide that the producer shall be liable in damages in tort for damage caused wholly or partly by a defect in his products and a product is defective if it fails to provide the safety which a person is entitled to expect, taking all circumstances into account, including the use to which it could reasonably be expected that the product would be put.  Accordingly, the Court found that the 3rd defendant was a producer within the meaning of the 1991 Act and was liable to the plaintiff under that Act.

The 3rd defendant sought an indemnity and/or contribution from the 2nd third party. The Court held that in circumstances where the 2nd third party commissioned and procured the manufacture of the table it required the 2nd third party to satisfy itself that that product complied with the appropriate standards. Its failure to make such enquiries or to ascertain whether or not the appropriate standards and tests had been complied with was instrumental in the table being put into circulation for public use, containing as it did a latent defect. The Court considered that the blameworthiness of the 2nd third party’s contribution to the occurrence of the accident to be greater than that of the 3rd defendant and apportioned the fault between them 1/3rd 2/3rds in favour of the 3rd defendant.

For further information please contact Paula Mullooly at pmullooly@algoodbody.com

Date Published: 21 July 2015