Right to repair may lead to increased claims against manufacturers

The Ecodesign for Energy-Related Products and Energy Information Regulations 2021 require manufacturers to make spare parts available within two years of an appliance going on sale, and they should stay on sale for seven or 10 years after the product has been discontinued - depending on the part.

The EU introduced similar measures in March and, before leaving the EU, the UK government agreed to bring in matching standards.

The regulations are intended to tackle the 1.5 million tonnes of waste electrical and electronic equipment (WEEE) that it is estimated is generated annually in the UK. They also set out new tighter rules for how much energy household electrical equipment such as washing machines, fridges and TVs can use, with the objective of improving energy efficiency.

A recent report into protecting consumers from unsafe products noted that manufacturers’ efforts to make products easier to repair, rather than replace, could have knock-on effects. The report by the National Audit Office said: “Longer lifespans may mean products are more likely to develop faults or be bought second hand”.

The report added that the UK’s product safety regime and the regulator, The Office for Product Safety and Standards, would have to evolve to keep pace with the changing market otherwise it would no longer be able to protect consumers from harm.

Product liability expert Katie Hancock of Pinsent Masons said: “Under the Consumer Protection Act 1987 (CPA), if a consumer sustains damage as a result of an alleged defect in a product, they have to prove that a product is defective but they do not have to prove negligence on the part of the manufacturer.

“Manufacturers need to be prepared for the potential for extra claims alleging defect in an appliance because of issues that have arisen as a result of the appliance having a longer lifespan than originally intended because of part replacement. For example, a tumble drier might have a defect creating the potential to cause fire when fabric touches its heating element. This could happen by chance at any time during its lifespan, but the longer the lifespan of the tumble drier, the greater the chance that it will happen. If the tumble drier breaks down after only a few years because another part reaches the end of its lifespan, the defect will have had less opportunity to materialise. If that other part can now be replaced, the tumble drier will have a longer lifespan, and the issue will therefore have a greater opportunity to emerge and cause fire,” Hancock said.

“Contrast this with the position where a defect only arises as a result of the product having a longer lifespan. To use the tumble drier example again, the defect exposing the heating element to fabrics might only develop as a result of wear and tear when the tumble drier has been used for many years, and several parts have already been replaced to prolong its lifespan.

“A manufacturer might once have argued that the product is not defective, because it has been used beyond its originally intended lifespan and it was only this which caused the defect. However, against a legal backdrop which envisages the replacement of parts, and the consequent extension of product lifespans, the courts might not be willing to accept such an argument,” she said

The new regulations apply only to products which were placed on the market after 1 July 2021, or 1 August 2021 in respect of electric motors. Hancock said that the courts could therefore conceivably decide in future “that manufacturers have fair warning that their products should not develop defects even after several years of use”.

“The regulations raise new questions and have the potential to create complexity in assessment of liability and defect. Manufacturers and suppliers should expect claims of defect will be advanced if the product does not fail safe and causes damage, even where that is a consequence of its lifespan having been extended beyond that originally intended,” she said.

“It remains to be seen how the courts will address this complexity, but the potential for increased issues and claims is clear. A claim can be brought under the CPA if the consumer became aware of the damage within the last three years, and the product was put into circulation less than ten years ago,” Hancock said.

There are some defences available to manufacturers. For example, a manufacturer might say that the state of scientific knowledge at the time when the product was put into circulation was not such that the defect could be discovered. This defence might be available where a novel defect only arises after a very prolonged period of use. A manufacturer might also defend a claim by saying that the defect did not exist in the product at the time of the supply.

“However, the fact alone that a product was manufactured in accordance with safety standards at the time of supply would not avoid a finding of defect although that might be more important if a claim for negligence is made, perhaps because a CPA claim is out of time,” Hancock said.

If a defective product injures a consumer or damages their property, the consumer may also be able to bring a common law action for negligence against the manufacturer. 

Jacqueline Harris, a product liability expert at Pinsent Masons said: “If a consumer seeks to bring a claim of negligence they have to prove that the manufacturer owed them a duty of care which was breached; and that that breach caused damage which the manufacturer could have reasonably predicted. That can be very onerous in the case of product failure particularly after the passage of time and where there has been regulatory compliance.”

“The limitation periods are different in negligence cases. In negligence claims other than for personal injury, the consumer has six years from the date the damage occurs to make a claim; or three years from the point they knew, or ought to have known they had a claim – whichever is later. This does mean that there is potential for consumers to claim for a latent problem many years after the product was manufactured as the longstop date for negligence is 15 years from the date of the wrongful act. However, while depending on the facts and circumstances in any particular case, it seems unlikely that negligence could be established after such a passage of time,” Harris said.

The new regulations do not cover hi-tech products, such as laptops and smartphones.