What you need to know to sue a manufacturer DEAN DUNHAM
THE recent Whirlpool saga and the recall of washing machines under its Hotpoint and Indesit brands has continued to rumble on.
Most consumers that have an affected machine therefore still haven’t received a remedy from Whirlpool, so readers are now asking me “when can you sue a manufacturer?”.
Here are the key things you need to know:
GENERAL RULE
THE general rule is that if goods are faulty it is the retailer that sold you the goods that is liable.
The reason for this is that it is the retailer that took your money and therefore formed a contract with you.
In this respect, when retailers say “not our problem go to the manufacturer” they are wrong.
WHEN A MANUFACTURER DOES HAVE LIABILITY
FOR a manufacturer to have any liability at least one of the following circumstances must apply; i) the consumer must have registered its warranty with the manufacturer and that warranty must still be valid – meaning that a contractual relationship exists between the consumer and manufacturer; 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 manufacturer of goods if the goods are defective and such defect causes damage, death or injury. The key characteristics of the CPA are:
Anyone who suffers damage as a result of defects in goods, is entitled to claim, not just whoever purchased the product; and
A product is defective if the safety of the product is not as you would generally expect, taking account warnings and product instructions provided, and how the product would reasonably be expected to be used.
WHAT ELSE YOU NEED TO KNOW
MANUFACTURERS have no liability under the CPA if they can prove any of the following:
The product wasn’t defective when it was supplied;
Fair wear and tear caused the damage;
The consumer disregarded the instructions or warnings, which led to the damage;
The consumer had used the product in an unexpected way, resulting in the damage;
The product was as safe as a person could generally be entitled to expect, taking into account its nature and presentation; or
The producer couldn’t have been expected to know about the defect given the scientific and technical knowledge around at the time the product was made.