It was reported by The Independent on 13 June 2019 that the domestic appliance manufacturer and supplier, Whirlpool had been instructed by the UK Government’s Office for Product Safety and Standards to recall 500,000 of its tumble dryers which may have potentially dangerous defects. In an 11 year period, it was thought that 750 fires had been caused by defective Whirlpool products.
A link to a press release from the Office for Product Safety and Standards can be found below:
https://www.gov.uk/government/news/safety-advice-for-unmodified-whirlpool-tumble-dryers
Eighteen months ago, the House of Commons’ Business, Energy and Industrial Strategy Committee had recommended that these Whirlpool dryers should be recalled. The consumer lobby group, Which?, had also vociferously campaigned over this issue.
From a consumer law perspective, companies such as Whirlpool have to grapple with the implications of two major pieces of legislation:
• Consumer Protection Act 1987
• Consumer Rights Act 2015
The Consumer Protection Act 1987 (Part 1) was introduced as a result of the European Community Product Safety Directive. Part 1 of the Act establishes a regime of strict liability in relation to defective products and provides a civil remedy for those individuals who have suffered injury, loss or damage caused by a defective product. Although liability is said to be strict, a claimant or pursuer must demonstrate that the dangerous product caused loss or injury.
Under the 1987 Act, a claimant does not have to prove that s/he has a contract of sale with the seller of the goods. This was an extremely significant drawback with the Sale of Goods legislation (the Acts of 1893 and 1979) and why Mrs Donoghue in Donoghue v Stevenson [1932] could not raise a civil claim against Mr Minchella, owner of Paisley’s Wellmeadow Café who sold the contaminated lemonade bottle to her friend (although it was Mrs Donoghue who consumed the product). As anyone familiar with this case knows, Mrs Donoghue had to pursue a claim (which was ultimately successful) against the manufacturer (Stevenson) of the defective product. At the time, it was by no means certain that her claim would succeed, but by bringing the action she broke new legal ground.
It is very important to appreciate that Part 1 of the Consumer Protection Act 1987 safeguards the rights of consumers and does notprotect traders or businesses from the consequences of damage or injury caused by dangerous and defective products (see Renfrew Golf Club v Motocaddy Limited [2015]).
Turning now to the Consumer Rights Act 2015, Section 1 of this legislation makes it clear that covers agreements between traders and consumers for the supply of goods (e.g. a tumble dryer), digital content or services. The agreement between a trader and a consumer must be a contract. Contracts can be written, oral or implied or a combination of all three.
So, in relation to potential liability to consumers for dangerous and defective products, a trader/manufacturer such as Whirlpool could face two principal scenarios:
Scenario 1
A legal claim brought by a consumer buyer who has entered into a contract with Whirlpool directly in terms of the Consumer Rights Act 2015. This is a breach of contract claim. If, however, the consumer purchased a dangerous Whirlpool product from a retailer e.g. Currys, the claim should be taken against the retailer under the 2015 Act – not Whirlpool directly. I shall address the retailer’s remedy against Whirlpool towards the end of this Blog.
Scenario 2
A claim for reparation brought by a bystander (so long as they are a consumer) who has been injured or has had property damaged as a result of coming into proximity with the dangerous and defective product ultimately supplied by Whirlpool. Bystanders could be family members in a household or even someone visiting the premises.
It should be appreciated that Scenario 2 is not about a breach of contract because the victim has not entered such an agreement with the supplier. Any legal remedy sought by the victim must be obtained under the Consumer Protection Act 1987. Admittedly, the victim may also have to pursue a delictual remedy at common law if the value of the claim was less than £275 as the Act does not apply in such situations.
A further scenario
What is the legal situation if Whirlpool does not have a direct contractual relationship with the ultimate consumer of the product i.e. it merely supplies the product in question to a trader which will then supply the goods to a consumer? Well, as discussed above in relation to Scenario 1, the consumer has a contract with the trader and any remedy should be sought in terms of the Consumer Rights Act.
Where does this leave the trader? They will have to pursue a contractual claim for a refund (and presumably damages) against Whirlpool in terms of Section 14 of the Sale of Goods Act 1979.
This Act continues to apply to contracts for the sale of goods in business to business (B2B) transactions; consumer to consumer (C2C) transactions; and consumer to business (C2B) transactions.
A link to the story in The Independent can be found below:
‘Recall 500,000 dryers over fire risk, Whirlpool told’
https://edition.independent.co.uk/editions/uk.co.independent.issue.130619/data/8955366/index.html
Postscript
In early July 2019, Which? subsequently gave evidence to the Business, Energy Industrial Strategy Select Committee of the House of Commons criticising the UK Government’s response to the problem of defective Whirlpool tumble dryers. Whirlpool has since agreed to identify all those products which may represent a risk to the public.
Read more about the work of Which? in relation to this issue by accessing the link below:
https://conversation.which.co.uk/home-energy/whirlpool-opss-review-doubts-evidence/
On 12 July 2019, Which? reported that Whirlpool had decided to recall the products which are deemed to be potentially dangerous:
By 22 July 2019, Whirlpool had agreed to recall nearly 500,000 of it’s tumble dryers:
http://news.sky.com/story/whirlpool-in-recall-of-500000-fire-risk-tumble-dryers-11768073
Copyright Seán J Crossan, 14 June & 22 July 2019
Seán Crossan's Scots Law 