A new Court ruling has determined that a fireplace installer could be prosecuted under the General Product Safety Regulations 2005 (GPSR). This has serious implications for tradespeople, who can now be prosecuted under the GPSR, even if the product itself was perfectly sound.
Under the GPSR, all ‘producers’ of a product must ensure the product is safe for the purposes of their normal or reasonably foreseeable usage. If this requirement is not met, enforcement authorities can take appropriate action, which includes bringing a criminal prosecution.
Under section 2 of the GPSR, ‘producer’ includes:
• The manufacturer of a product who is established in the EU;
• A person established in the EU, holding himself out as the manufacturer, for example by selling private label products under his own brand (“own-branders”);
• A person established in the EU who reconditions the product;
• A person established in the EU who represents a manufacturer from outside the EU;
• Where there is no EU representative of the manufacturer, the importer into the EU;
• Other professionals in the supply chain who affect the safety of the product.
“Other professionals in the supply chain” is not legally defined. And it was on this point, i.e. was the installer an “other professional” for the purposes of the GPSR, that the case made the ground-breaking ruling.
The Defendant supplied and fitted fireplaces. His work included the removal of old stoves, plates and chimney liners and replacing them with new equipment including flue liners and canopies. In October 2016 he quoted the Complainant for the removal of the current stove, plate and chimney liner and its replacement with a fire basket and fire back.
On 8th November 2016 the old stove, register plate and old chimney liner were removed by the Defendant and a colleague. The chimney was then swept and a few days later the new basket and back were installed. The Claimant lit a fire and smoke billowed out above the beams. Furthermore, fumes from the open fire rose through the boards and into the upstairs room.
The Claimant contacted the Defendant who stated the chimney required a new liner. This work, along with the installation of a canopy was completed by 8 March 2017.
The Claimant lit a fire twice in March 2017 and both times the room filled with smoke. An engineer who inspected the installation found that the fittings had been installed incorrectly. The hood and flue liner were too small and did not comply with Part J of the Building Regulations.
The local authority brought a summons alleging an offence under the GPSR. It argued that whilst the fireplace was being renovated, the Defendant installed a flue liner and a canopy in such a way to render them unsafe products.
The Defence stated that the safety properties of the product were not affected by the Defendant’s activities. Such an act must involve a physical alteration of the properties of the product, so that in normal and foreseeable conditions of use the item created a risk which was not consistent with a high level of protection for the safety and health of persons. The defence counsel also submitted that an installer only assumes responsibility for the safety of the product if they alter or interfere in any way with the item prior to sale to the consumer. It is accepted that a product can be rendered unsafe by the manner of its installation but only in so far as it is altered or changed in any material fashion.
The Court’s decision
The Court ruled that a “professional person” as set down in section 2 would include an installer because the act of installing a product can affect its viability and safety. Crucially, this is the case even if the product itself is free from defects.
Although the Defendant ultimately won his case on the facts, therefore escaping prosecution, anyone who installs a product must be aware that this decision means they can be prosecuted under the GPSR. This should be taken seriously, as failure to comply with the GPSR can lead to fines and/or imprisonment.
Tanveer Qureshi is a Legal 500 barrister and acted for the Defendant in this case If you require advice or representation on the General Product Safety Regulations 2005 or health and safety matters, please contact directly on 020 3870 3187.