Retailers’ Liability for Defective Food Products

Retailers’ Liability for Defective Food Products

In the modern Ireland people consume more pre-prepared food.  These can be ready meals, pre-packed sandwiches or dining out.  The preparation of food products can lead to contaminants or foreign objects being introduced into the food.  The question that arises for retailers and consumers is who is responsible and to what extent are they responsible.

A Case Study

The following facts will be familiar to lawyers. Two Scottish ladies are dining in a café in Paisley, Scotland.  One lady buys a ginger beer for her friend.  After consuming half of the bottle the ladies discover a partly decomposed snail in one of the ginger beers.  The unfortunate lady who had consumed the ginger beer suffers from shock and gastro-enteritis.

The resultant court case was the oft cited 1932 Scottish case of Donohue v Stevenson.  The manufacturer was held by the UK House of Lords to be responsible to persons that he owed a duty of care to.  That is anyone foreseeable to consume ginger beer.  That simple idea of persons to whom you owe a duty of care to would expand in all areas of law in subsequent decades.

Expansion of Donoghue v Stevenson

In 1944 the Irish case of Kirby v Burke & Holloway concerned a case of gastro-enteritis as a result of the consumption of tainted jam.  It was the courts view that jam manufactures had to take specific precautions against dangers that may hurt consumers.

Retailers v Manufacturers responsibilities

As well as being under a wide-ranging contractual obligation to purchasers, retailers fall under a duty of care in tort to those who may foreseeably be injured by the product they sell.

There is, however a difference in the scope of duty owed to the customer by manufacturers and retailers respectively.

Manufacturers must have a system for checking the quality of the product they are placing onto the market.

A retailer, in contrast, has a duty of care in relation to the product sold but this is limited to taking reasonable steps to ensure the stock is not defective.  In essence they are not expected to personally test every food product they sell and steps such as ensuring that a product is not out of date is sufficient.

The 1955 Fleming v Henry Denny & Sons Ltd concerned a piece of steel found in black pudding.  The Supreme Court held that the manufacturers of black puddings were entitled to rely on firms who supplied them with ingredients to take care that what they supplied was free of danger.

The Supreme Court did note that it was impossible to lay down a universal rule and that characteristics such as the nature of the material purchased, the reputation of the dealer, obligations imposed on the manufacturer by law and the processes involved in manufacturing the product would all be taken into account.

Irish Legislation

In 1991 the Defective Products Act codified these principles.  The Act provides that the producer shall be liable for damages caused by defects in the product.  A producer is anyone who manufacturers a finished product, raw material or component of a product or processes agricultural or other food products.

The Act sets the injured person must show damage and that that the damage was caused by a defect in the product.  This has practical considerations as attaching liability for foodborne illness may often be extremely difficult for an injured consumer (in the absence of a half decomposed mollusc).  They will have to distinguish the suspected item from any other food digested on the same day and show that it caused the injury.

A producer can also rely on defences under the Act.  The two most significant are where he can show it is probable that the damage did not exist when they put the product in circulation or that that they can show that the defect occurred afterwards.

The National Standards Authority of Ireland is Ireland national standards body.  They develop standards for products for sale in Ireland.  They offer certification schemes for the food and drink sector and food labelling. They also investigate and can prosecute producers who supply contaminated food.

European Legislation

The Liability for Defective Products Act 1991 was enacted as a result of European Legislation. There are a number of European Regulations which cover food and food safety such as the European Communities (General Product Safety ) Regulations 2004 and the EC Directive on Product Liability which led to the enactment of the Product Liability Act.


The law provides for protection for customers who ingest tainted food.  The time limit for personal injury compensation is two years from the date of the accident.  The greatest difficulty in these cases is that the onus of proof is on the person who suffered the injury.  In the absence of an obvious design defect or flaw it can be difficult to prove.

For further information on this topic, please contact Setanta Landers at