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01st March 2017

Consequences of producing or supplying dangerous products to consumers

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This is an issue which has been cropping up of late for Hewitsons’ construction team.
The background

The ‘fitness for purpose’ standard and the inability to contractually exclude liability for death or personal injury will be familiar to those involved in the sale of goods as well as those in the construction industry. Perhaps less well known is the existence of separate legal obligations on those producing or distributing dangerous products to consumers. Authorities are afforded wide powers to restrict the propagation of dangerous products and failure to comply with the legislation can hold severe consequences, including a fine up to £20,000 and/or imprisonment of up to 12 months.

Consumer Rights

Under the Consumer Rights Act 2015, which took effect on 1 October 2015, products sold to consumers by businesses must be fit for purpose. For contracts that came into existence prior to 1 October 2015 and non-consumer contracts for the sale of goods, the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 imply the same fitness for purpose standard. Where a sold product is not fit for purpose, the buyer would in principle have a claim against the seller.

Related to this, under the Unfair Contract Terms Act 1977, liability for death or personal injury arising from negligence cannot be excluded under a contract. Therefore, a designer or contractor whose negligent performance of services or works causes death or personal injury is likely to face a civil action from the aggrieved party and possibly a criminal action from the relevant authorities.

Perhaps lesser known is that there are in fact legal obligations on those that have produced or distributed a dangerous product, including where the producer/distributor is made aware that a product is dangerous after it has been fitted or supplied. Failure to discharge these obligations may amount to a criminal offence which can result in a substantial fine and/or imprisonment so it would be advisable for those that produce or supply products to consumers to be aware of the relevant legislation.

Regulation

To understand what the obligations are we must turn to the General Product Safety Regulations of 2005 (SI 2005/1803) (the ‘Regulation’). The Regulation transposes the requirements of EU Directive 2001/95/EC which relates to general product safety. The Regulation applies to England, Wales, Scotland and Northern Ireland and enforcement of the Regulation is the responsibility of the relevant enforcement authority, which is likely to be the relevant trading standards service but may include the local authority for the area. It is important to also appreciate that the Regulation applies to both new and second-hand products.

Construction industry

In the context of the construction industry, those parties responsible for sourcing and supplying fittings, furniture and equipment (FF&E), particularly those working on domestic projects, should familiarise themselves with the requirements of the Regulation. In a situation where a client is preventing a contractor, supplier or fitter with entry to a property to make a product fitted on site safe, provided it can be established (ideally through documentation/emails) that the enforcement authority was advised as early as possible and that the contractor, supplier or fitter acted reasonably and with due care then it is reasonable to assume that they would have a credible defence in any ensuing prosecution under the Regulation.

For more information please contact Lorna Carter on 01223 461155 or click here to email Lorna.