Advice on Consequential Liability (Consumer law)
Discussion
Looking for some moral as well as legal help here.
Earlier this year I bought a top-of-the-range towball mounted bike rack from a UK reseller, rack manufacturer non-UK. Can't go into any more details on that to avoid N&S issues (and for reasons I can't post here I can't even hint at the manufacturer as that will inadvertently N&S the reseller).
In August we drove from the UK to Italy via France with rack and 4 mountain bikes installed. 600 miles of motorways and cross country later we landed at our second stop in Chamonix. As the weather was foul on both this and the previous night's stops we didn't use the bikes and they stayed on the rack. Setting off from Chamonix, we climbed to the Mont Blanc tunnel and less than a km from the entrance we heard a loud bang. When we looked around we realised the rack and bikes were sat in the middle of the road a hundred metres or so back. Luckily no-one was immediately behind us and were only doing around 40 km/h or so. We reversed and made safe with the help of a rescue van there within a minute or less. We moved the rack to the side of the road and proceeded to remove the bikes to evaluate the damage. It had landed almost flat and because of the speed hadn't rolled so the damage was confined to the 4 contact points and the lighting board loom had been severed. The socket had pulled itself away from the car with the car half breaking first. Amazingly the rack seemed to reattach mechanically fine with the locking handle fully down and safety indicator showing green. Gave it a good old push around and it seemed fine (as it had when mounting it in the UK). Although we had no secondary lighting now we decided to carry on and run the risk with the police as we were doing daytime driving only and the rear car lights were partially visible. I hitched a couple of extra straps to the roof bars and we made it the further 300 miles without incident.
Once in Italy I contacted the reseller by email to tell them what had happened. They advised to send it back to them for investigation upon our return and we would further discuss options (around my lack of confidence in this model). As we had made the final downward leg OK, we decided to risk it going back with supplementary strapping and everything went OK.
Back in the UK, the reseller arranged collection and I haven't heard anything since (2-3 weeks passed). I did however randomly notice they have refunded the original full purchase price to my credit card a week or so ago without notifying me in any way. In the meantime I have also had the car repaired - it had blown an ECU as well as the socket damage so that bill came to about 150% of the rack cost.
Questions now before I re-engage with the reseller:
1. First concern is safety - if this had happened on the motorway at 130 km/h with someone close behind us the results could have been catastrophic and I can't live with that on my conscience (ie happening again to me or anyone else) if there is an inherent design/build problem with this model. I strongly suspect from a legal stance they'd just say I installed it wrong but I know that handle was fully down and it managed 600 miles over both fast and bumpy terrain without coming off. It wasn't overloaded either. Even if I DID do something wrong, the mechanism should be murphied if its indicating green and the handle won't travel any further. I don't have any photographic evidence of it fitted at departure. Is there any way I can force them into releasing the results of the manufacturer's investigation ? I don't want to start a dissing campaign through internet reviews etc to publicise the issue.
2. Do I have any CL claim on the reseller or manufacturer ? I don't want to put it through insurance as the premium hit over 5 years on 3 cars would outweigh the net claim benefit. Also suspect my travel insurance has a get out on anything vehicle related.
Ta
S3
Earlier this year I bought a top-of-the-range towball mounted bike rack from a UK reseller, rack manufacturer non-UK. Can't go into any more details on that to avoid N&S issues (and for reasons I can't post here I can't even hint at the manufacturer as that will inadvertently N&S the reseller).
In August we drove from the UK to Italy via France with rack and 4 mountain bikes installed. 600 miles of motorways and cross country later we landed at our second stop in Chamonix. As the weather was foul on both this and the previous night's stops we didn't use the bikes and they stayed on the rack. Setting off from Chamonix, we climbed to the Mont Blanc tunnel and less than a km from the entrance we heard a loud bang. When we looked around we realised the rack and bikes were sat in the middle of the road a hundred metres or so back. Luckily no-one was immediately behind us and were only doing around 40 km/h or so. We reversed and made safe with the help of a rescue van there within a minute or less. We moved the rack to the side of the road and proceeded to remove the bikes to evaluate the damage. It had landed almost flat and because of the speed hadn't rolled so the damage was confined to the 4 contact points and the lighting board loom had been severed. The socket had pulled itself away from the car with the car half breaking first. Amazingly the rack seemed to reattach mechanically fine with the locking handle fully down and safety indicator showing green. Gave it a good old push around and it seemed fine (as it had when mounting it in the UK). Although we had no secondary lighting now we decided to carry on and run the risk with the police as we were doing daytime driving only and the rear car lights were partially visible. I hitched a couple of extra straps to the roof bars and we made it the further 300 miles without incident.
Once in Italy I contacted the reseller by email to tell them what had happened. They advised to send it back to them for investigation upon our return and we would further discuss options (around my lack of confidence in this model). As we had made the final downward leg OK, we decided to risk it going back with supplementary strapping and everything went OK.
Back in the UK, the reseller arranged collection and I haven't heard anything since (2-3 weeks passed). I did however randomly notice they have refunded the original full purchase price to my credit card a week or so ago without notifying me in any way. In the meantime I have also had the car repaired - it had blown an ECU as well as the socket damage so that bill came to about 150% of the rack cost.
Questions now before I re-engage with the reseller:
1. First concern is safety - if this had happened on the motorway at 130 km/h with someone close behind us the results could have been catastrophic and I can't live with that on my conscience (ie happening again to me or anyone else) if there is an inherent design/build problem with this model. I strongly suspect from a legal stance they'd just say I installed it wrong but I know that handle was fully down and it managed 600 miles over both fast and bumpy terrain without coming off. It wasn't overloaded either. Even if I DID do something wrong, the mechanism should be murphied if its indicating green and the handle won't travel any further. I don't have any photographic evidence of it fitted at departure. Is there any way I can force them into releasing the results of the manufacturer's investigation ? I don't want to start a dissing campaign through internet reviews etc to publicise the issue.
2. Do I have any CL claim on the reseller or manufacturer ? I don't want to put it through insurance as the premium hit over 5 years on 3 cars would outweigh the net claim benefit. Also suspect my travel insurance has a get out on anything vehicle related.
Ta
S3
Speed 3 said:
Setting off from Chamonix, we climbed to the Mont Blanc tunnel and less than a km from the entrance we heard a loud bang. When we looked around we realised the rack and bikes were sat in the middle of the road a hundred metres or so back. Luckily no-one was immediately behind us and were only doing around 40 km/h or so.
Did you check the rack before setting off the next day? Any possibility it could have been tampered with during the night? I understand your reluctance to use the rack again and I'd certainly want the conclusion from the reseller about what they found, but I suspect they've just refunded you because you don't have confidence in the product and there's no point in them arguing otherwise. Other than asking for a contribution, I think you'll struggle to recoup any costs for the damage to the electrics because they may well just say "wasn't fitted properly" and you can't prove otherwise.Speed 3 said:
The socket had pulled itself away from the car with the car half breaking first.
Sorry, I can't quite picture what you're referring to here. Is this "socket" part of the bike rack, part of the towbar? Or the wiring?Speed 3 said:
2. Do I have any CL claim on the reseller or manufacturer ?
Very, very unlikely. The warranty will almost certainly explicitly exclude consequential liability, as far as the law allows, so you'd need to take them to court to even start seeing how far that is, unless you can find a very similar precedent or two and lean on them for goodwill.TooMany2cvs said:
Speed 3 said:
The socket had pulled itself away from the car with the car half breaking first.
Sorry, I can't quite picture what you're referring to here. Is this "socket" part of the bike rack, part of the towbar? Or the wiring? Yes you can claim consequential losses from the SELLER. You simply have to show some things
1 - there is a manufatcuring defect
2 - you suffered a loss - what that loss was
3 - the loss was caused by the manufatcuring defect
You have 2 major problems though
1 - proving the product had a manufatcuring defect - do you have the technical skill (and no longer have the product)
2 - the retailer may say it was down to user error not product error.
As far as general product safety goes you can report it to Trading Standards - they may or may not look into it - but given recent cuts its a hope more then a gurantee.
1 - there is a manufatcuring defect
2 - you suffered a loss - what that loss was
3 - the loss was caused by the manufatcuring defect
You have 2 major problems though
1 - proving the product had a manufatcuring defect - do you have the technical skill (and no longer have the product)
2 - the retailer may say it was down to user error not product error.
As far as general product safety goes you can report it to Trading Standards - they may or may not look into it - but given recent cuts its a hope more then a gurantee.
Hardest part would be proving a manufacturing defect, all hopes of doing that are now gone entirely since that would need to be proved by an independent expert on examination of the failed part, usually carried out by you and then reimbursed by the seller if confirmed to be a manufacturing defect.
AJXX1 said:
Hardest part would be proving a manufacturing defect, all hopes of doing that are now gone entirely since that would need to be proved by an independent expert on examination of the failed part, usually carried out by you and then reimbursed by the seller if confirmed to be a manufacturing defect.
But would he have to though? Speed 3 said:
Earlier this year...
The date of purchase could be of particular relevance - http://www.legislation.gov.uk/ukpga/1979/54/sectio... - subsection 3.The onus is always on the consumer to prove a fault but the law states if the consumer can prove the fault then in the first 6 months it was deemed to be there at the time of sale and is for the seller to disprove.
The OP still needs to prove a fault and the seller can then dispute it.
The OP still needs to prove a fault and the seller can then dispute it.
Mojooo said:
The onus is always on the consumer to prove a fault but the law states if the consumer can prove the fault then in the first 6 months it was deemed to be there at the time of sale and is for the seller to disprove.
If you can point to where in subsection 3 the law states what you are claiming (i.e. that within the first 6 months there is any requirement on the consumer to prove), I will donate £20 to a charity of your choice.SOGA 1971 Section 48a(3) in fact reverses the burden of proof. If it is claimed that the goods do not conform to the contract of sale within the first 6 months from date of delivery it is deemed that they don't and it is for the seller to prove that they do.
Mojooo said:
The OP still needs to prove a fault and the seller can then dispute it.
Not within the above mentioned statutory time frame he doesn't.http://www.which.co.uk/consumer-rights/regulation/...
I reckon Martin Lewis is reasonably clued up on the subject.
http://blog.moneysavingexpert.com/2013/10/22/how-l...
You don't by any chance happen to work in retail do you?
Well known for staff being somewhat under trained in respect of consumer legislation.
The OP has received a full refund so that aspect is taken care of.
The issue of damage to OP's car/bikes is a separate matter.
See page 14 here - http://www.secola.org/db/2_12/gb_noteslong.pdf
(the 'reversed burden of proof' issue is also covered - see page 13).
You have misinterpted the section - it is not about proving the fault - the section assumes a fault exists - it covers proving it was there at the time of sale (which it is assumed it is unless the tarder can prove otherwise. The issue in this case is proving the product was fault to start with.
The MSE guide says
"Within six months – proving fault is easier. If you return goods before six months and the dispute went to court, it would be for the store to prove the goods weren’t faulty when you bought them. After that, it’s for you to prove they were. So the burden of proof is far easier in under six months."
Nowhere does it say (or make clear) the consumer has to prove the fault.
S19 (1)4 of the Consumer Rights Act 2015 which is soon (next week) going to repalce the SOGA uses the same wording as it comes from an EU Directive.
http://www.legislation.gov.uk/ukpga/2015/15/sectio...
Here is the guidance from the Govt dept BIS which quite clearly states:
Note that the consumer always needs to be able to show that the goods do not meet the Act’s
requirements – the reverse burden of proof applies only to proving that this was the case at the
time of delivery.
Page 43
http://www.businesscompanion.info/~/media/business...
http://www.businesscompanion.info/en/quick-guides/...
The MSE guide says
"Within six months – proving fault is easier. If you return goods before six months and the dispute went to court, it would be for the store to prove the goods weren’t faulty when you bought them. After that, it’s for you to prove they were. So the burden of proof is far easier in under six months."
Nowhere does it say (or make clear) the consumer has to prove the fault.
S19 (1)4 of the Consumer Rights Act 2015 which is soon (next week) going to repalce the SOGA uses the same wording as it comes from an EU Directive.
http://www.legislation.gov.uk/ukpga/2015/15/sectio...
Here is the guidance from the Govt dept BIS which quite clearly states:
Note that the consumer always needs to be able to show that the goods do not meet the Act’s
requirements – the reverse burden of proof applies only to proving that this was the case at the
time of delivery.
Page 43
http://www.businesscompanion.info/~/media/business...
http://www.businesscompanion.info/en/quick-guides/...
My Thule rack was rock solid when properly tightened to the towball. Before my tour of Scotland I did the lock bolt up with a big spanner and then had a total of 27 stone sat on the rack to test without even the slightest movement or slippage. Really with a tow ball mounted rack I cannot see how it can end up on the road unless A. It breaks or B. It's not tightened enough. If it wasn't broken then it's B isn't it.
Am I misunderstanding how it attaches to the tow ball, cup with a big bolt through it?
Am I misunderstanding how it attaches to the tow ball, cup with a big bolt through it?
Well glad to say after escalating this to the reseller's MD, I got full refund on the original rack, full recompense (ex-gratia) for the £680 repair bill for the car and a replacement alternative (slightly more expensive brand) for the same price as the original purchase. They acknowledged poor customer service handling following the incident but I now consider that rectified. I am due to get the full root cause report from the MD in the coming days to satisfy my safety concerns for friends who bought the same model as I originally had.
fatjon said:
Am I misunderstanding how it attaches to the tow ball, cup with a big bolt through it?
It was an articulating lever cup like on your Thule.ging84 said:
are they going to ask for those things back if they conclude that the root cause was that you drove 600 miles over 2 days without checking it?
I don't think they would have done the payout if that was their conclusion. They already have the analysis, just haven't yet shared it with me. I don't recall saying I didn't check it over those 2 days, in fact I did several times. That however is as hard to prove as them saying I didn't.Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff