To sue or not to sue. When is the firm to blame?

AFTER the recent Whirlpool scandal and delays over the recall and replacement of washing machines made and sold under its Hotpoint and Indesit brands, readers have been asking when consumers can sue a manufacturer. Here’s everything you need to know:

THE GENERAL RULE

If goods are faulty, the retailer who sold you them is generally liable. The retailer took your money and, therefore, formed a contract with you. In this respect, when retailers claim, “It’s not our problem, go to the maker” they are wrong. But for a manufacturer to have any liability, one of the following must apply: i) The consumer must have registered a warranty and that must still be valid – meaning a contractual relationship exists between customer and maker; or ii) The consumer must have suffered damage as a consequence of the faulty goods – in which case the Consumer Protection Act (CPA) would potentially apply.

WHAT IS THE CPA?

Under the CPA, a consumer has the right to pursue a claim against the maker of goods if they are defective and that causes damage, death or injury. The key characteristics of the CPA are: Anyone who suffers damage as a result of defects is entitled to claim, not just whoever purchased the product. A product is defective if its safety is not as you would generally expect, taking account of warnings and product instructions provided and how the product would reasonably be used.

Manufacturers have no liability under the CPA if they can prove:

The product wasn’t defective when supplied; wear and tear caused the damage; the customer disregarded instructions or warnings or used the product in an unexpected way; the product was as safe as a person could be entitled to expect; or the producer couldn’t have been expected to know about the defect.

In the case of Whirlpool, I believe customers who have suffered fires, or had their homes damaged, are justified in taking legal action.