Faulty product, unusual case, what's my best option for handling it?

[Stilezy]

I need help deciding the best way to approach this case out of the (several) choices. I have no doubt it'll get resolved, it's just how to give myself the best chance of the best result.

 

I bought a technology product in 2008 for over £100 using my (non-shared) credit card from a major and reputable retailer who I trust and like. It had a 3 year warranty. In 2010 it was sent away under warranty and this was done directly by the manufacturer without the retailer being involved. The product I have right now is the one which was returned by the manufacturer.

 

A couple of days ago (Feb 2012) I followed exactly the manufacturer's directions in reconfiguring the product (it can be configured 2 ways, I'd always used it in configuration #1 and now wanted to use configuration #2). In the course of reconfiguring the product, it turned out the product had a latent hidden dangerous fault which, when the instructions were followed, was a safety hazard and also caused the product to be quite badly damaged and stop working. That's what happened to mine. There was no personal injury or other damage and consequential losses will be no more than maybe £5 - £30 of phone and return shipping costs.

 

A check of the instructions made clear that the product and instructions were both inherently defective and had been since purchase. The risk could not be discovered by any reasonable inspection other than by the manufacturer, and there was no mention in the instructions of this highly predictable hazard or any related safety considerations. It would only be discovered if a consumer actually followed the instructions and the latent fault happened (which it would). I have no doubts that I could prove in court that the fault was severe, a safety hazard, and inherent in the product's design.

 

According to manufacturers, retailers, and independent studies, the product has an expected (typical) lifetime of 8 - 20 years if cared for. Basically "it lasts forever if careful". I'd owned it 4 years. The manufacturer might try to argue it's "only" expected to last 4-5 years or something but if they do, I think I've got enough evidence to argue the point, but I don't want to, my aim is a working product not partial repayment.

 

The nature of the fault means the product was inherently faulty both when I bought it from the retailer in 2008 and when its repair/replacement was sent to me by the manufacturer in 2010, although this wasn't known at the time. The original purchased product was sent to me by the retailer, and the repaired/replaced (but latently dangerous) item that actually "blew" was returned to me directly by the manufacturer.

 

My aim is a repair or replacement, I don't mind which. The manufacturer could easily repair it and make the fault safe if they have spare parts (I think they do!) but they don't do a similar product any more, they'd have to pay for a replacement on the open market. The retailer stocks several like-for-like products by other manufacturers as it's a mainstream product - although prices have gone up by about £40 since 2008 - or they could pass it to the manufacturer for repair. I definitely do not want to be forced to accept compensation or to reject or rescind the contract since any money I'd get wouldn't cover replacement.

 

Possible legal directions seem to be:

 

• Sale of goods act against retailer. Retailer has said the manufacturer is helpful and if I hit a dead-end with the manufacturer I'm sure I can push and the retailer will deal with it. I'm guessing the manufacturer has spares but they might not.
  

 

• Credit card company - no obvious benefit, the retailer and manufacturer are reputable and I expect one or other to resolve it. Also I'm concerned they might push for cash rather than repair/replace, since they don't have a facility to repair or replace products - but I'm not sure what to expect at all if I tried.
  

 

• Duty of care and negligence in tort ("Grant v. Australian Knitting Mills": undetectable serious latent fault due to negligence that any reasonable manufacturer should not allow and where consumer can't anticipate or reasonably discover by examination), but I'm not sure who against: manufacturer, manufacturer + retailer, or manufacturer+retailer+credit card company?
  

 

• Presumably the product having been re-supplied under warranty, plus the tort issues, give me the option of direct recourse to the manufacturer, since the "blown" product was manufacturer-supplied (although the original one also had the same dangerous fault from purchase, it's inherent in the design and instructions). The retailer wasn't at all involved in the warranty return though and they're unlikely to remember that a swap-out took place. The manufacturer might not remember either. I haven't a clue what rights might get added or removed as a result.
  

 

There's nothing else relevant. I don't know some important stuff, like what impact the warranty swap-out has or if I should remind them it's been swapped out, how much anyone can still insist on cash compensation, or how much I can insist on a replacement if told the manufacturer doesn't have spares (I expect they do). A good result matters more than a fast one. I'd like whichever route makes it most likely I end up with a working repaired/replaced product rather than cash.

 

What's my position and what should I do?

Edited February 19, 2012 by Stilezy

[Conniff]

Welcome Stilezy.

 

The retailer could well argue that the product you have now is not the one they sold you. Your error was in going direct to the manufacturer in the first place and not back to the retailer.

[Stilezy]

The retailer could well argue that the product you have now is not the one they sold you. Your error was in going direct to the manufacturer in the first place and not back to the retailer.

I don't think it's likely they would, but if they did the answer is that it was at their own suggestion. They often direct people to contact manufacturers directly for warranty claims, I've used this retailer long enough enough years to have experienced it and usually it makes sense. Some issues they handle in-house because it's quicker, some they suggest to contact the manufacturer directly. In this case I phoned their customer services, said I had a faulty product in warranty, and that was their recommendation. Sorry if my description was off, that's what I meant by saying the retailer wasn't involved, but it should be ok since I went direct to the manufacturer on their say-so.