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Faulty shower; thought I had a possible claim?


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I had a case in front of a judge in the small claims court that went against me.

 

I purchased an electric shower and had this fitted at a cost of £270.

This particular model came with an anti-scale device and a two year anti-scale guarantee.

 

After two years and two months the shower scaled up and the water produced was either scalding hot or freezing cold, rendering the shower unusable.

 

The seller refused to do anything and, after going through pre-action protocol and sending a number of letter to the seller,

including advising that if no acceptable solution was forthcoming I would take legal action,

I brought an action in the Small Claims Court alleging breach of s14 (2) of the Sale of Goods Act 1979 as amended.

 

I maintained the shower was not of satisfactory quality under s 14 (2).

There was an issue with safety (scalding hot water) as the shower was not safe to use,

and safety is an aspect to consider in determining satisfactory quality. Indeed, s 14 (2) refers to this.

 

I pointed out that the durability of the product is also a factor to be considered in determining satisfactory quality under s 14(2) and the section mentions this.

I argued that the previous shower (same make and model, and same price) did not scale up for almost five years which was quite satisfactory,

but meant that this current product could not be satisfactory.

The anti-scale devise in the previous shower had clearly worked for almost twice as long as in the present shower, and this must mean the durability issue has not been met by this product.

 

I argued that the price of this product was relevant under s 14(2) (again, s 14 (2) refers to price as a consideration) and at £270 the shower was not bottom of the range.

Showers are available from around £50/£60 and therefore at £270 it is reasonable to expect a better quality product which would last longer and be safe to use;

particularly as this comes with a two year guarantee which, I submitted, serves to increase the expectations of the buyer compared to a product with no or a shorter guarantee.

 

I live in a hard water area but I pointed out that no other appliance in my home which uses water has had to be replaced after two years.

For example, my washing machine has lasted for over ten years without problems.

Whilst I don’t expect an electric shower to last forever, at a price of £270 I expect it to last longer than 2 years and 2 months, especially as it comes with a 2 year guarantee.

 

All in all I felt I had a good case.

The evidence I was using was the seller’s inspection and identification that the shower had scaled up.

More significantly, I thought the direct comparison between this shower and the previous one (same make, model and price)

and the fact that this product scaled up after two years and two months,

compared to almost five years with the previous product,

clearly meant that this product could not be satisfactory and that I had established this prima facie on the balance of probability.

 

The judge did not agree.

He felt I had not shown there was something wrong with the shower.

He did not accept that the fact that scalding water was coming out of it was sufficient to show there was something wrong with it

and he rejected my comparison with the previous shower as evidence that there is something wrong with the present one.

 

He used motor cars for comparison and said that some may run for 300,000 miles and that one that only runs for 100,000 miles in comparison does not make it unsatisfactory.

The owner of the first car has just got lucky.

The judge believed that the seller can’t be responsible for the shower scaling up and he would not accept my argument that the antiscale device must be faulty

as on the previous identical product it lasted for almost five years.

The judge felt I should take the matter up with the manufacturer, something which I didn’t understand

and I pointed out to him that my contract was with the seller and not the manufacturer.

 

I thought I had a reasonable case here, but obviously not so.

My case has not been dismissed but has been adjourned for three months to permit me time to contact the manufacturer,

but I don’t see how that will help me.

 

Any suggestions as to anything else I can try? I will happily provide more information if required, but I am also prepared to accept that this may be one I am not going to win.

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What was the judges interpretation of the Sale of Goods Act as per "Goods are of satisfactory quality if they reach the standard that a reasonable person would regard as satisfactory, taking into account the price and any description. Aspects of quality include fitness for purpose, freedom from minor defects, appearance and finish, durability and safety." and also "For up to six years after purchase (five years from discovery in Scotland) purchasers can demand damages (which a court would equate to the cost of a repair or replacement)."?

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The judge never mentioned the SoG once. I was the one that kept referring to it. The judge's view was that I had not shown there was something faulty with the shower and he kept referring to this. He also said that as the issue is the scaling up of the shower the seller is not at fault for this. As this is a hard water area, the length of time this had lasted was reasonable. I was disappointed as I thought the like-for-like comparison and the lifespan of both showers was enough to illustrate that the older shower was satisfactory but that this one could not be.

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The case has been adjourned for three months so it isn't over yet.

 

What I am really struggling with is this, and I would be delighted for someone to come on here and explain it to me even if it is not the explanation I would prefer to hear.

 

When a buyer makes a purchase he has a reasonable expectation as to the durability of his product,

based on certain considerations such as price, manufacturer's reputation, warranty etc.

 

What better indicator of a buyer's reasonable expectation can there be than a like for like replacement in the same circumstances?

The replacement shower was the same make/model/manufacturer, cost the same price, and was attached to the same water supply as the previous shower unit.

It was used by the same two people only.

Surely I was entitled to expect that this shower would last longer than two years and two months considering the previous shower (the like for like model) lasted almost five years?

 

I can't accept the judge's opinion that as it is a hard water area in which I live that 2 years and 2 months is acceptable and that I got lucky with the previous shower.

 

The judge lives in the area too and pointed out how he has to descale his kettle regularly and rinse it out each day. We do the same with our kettle. So what?

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I would agree with the DJ.

 

Just because one shower lasted five years doesn't mean all showers have to.

 

Oh, I agree with that. Not all showers have to. But what about a like for like replacement? My point is, what better way is there of measuring expectation than this?

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Your argument amounts to "Shower A lasted 2 years, Shower B lasted 5 years, therefore Shower A was faulty".

This is good evidence but it is not watertight.

 

There could be other reasons why Shower B lasted longer than Shower A,

perhaps Shower B was particularly strong or the water composition has changed or the shower head got knocked or Shower A was used for frequently.

It is inevitable that sometimes identical products will last longer than others. It is valid evidence but it is not proof that Shower A was faulty.

 

Remember that the burden of proof is on you to prove that the shower was faulty when you bought it.

Whether something is of satisfactory quality is judged at the start, not when the thing breaks later on.

The burden of proof does not shift to the other side to prove the particular reason why Shower A lasted less time than Shower B.

This case could have gone either way, perhaps a different DJ would have agreed with you,

but to have more than a 50/50 chance of winning I think you would need something else to show that the Shower was actually faulty

- for example, some problem in the construction of the shower or some proof that the anti-scaling device was broken from the start.

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I would agree with the DJ.

 

Just because one shower lasted five years doesn't mean all showers have to.

 

"This particular model came with an anti-scale device and a two year anti-scale guarantee.

After two years and two months the shower scaled up and the water produced was either scalding hot or freezing cold, rendering the shower unusable."

 

The OP paid £270 so expectations were that the shower should last a lot longer than 2 years and not 2 months past the warranty date.

 

At that price that is what any reasonable person would expect especially if there were cheaper options available.

 

The shower was specifically purchased due to it supposedly being warranted to be scale free for a minimum of 2 years giving the impression,

that it would be scale free for a lot longer than 2 years.

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Your argument amounts to "Shower A lasted 2 years, Shower B lasted 5 years, therefore Shower A was faulty". This is good evidence but it is not watertight. There could be other reasons why Shower B lasted longer than Shower A, perhaps Shower B was particularly strong or the water composition has changed or the shower head got knocked or Shower A was used for frequently. It is inevitable that sometimes identical products will last longer than others. It is valid evidence but it is not proof that Shower A was faulty.

 

Remember that the burden of proof is on you to prove that the shower was faulty when you bought it. Whether something is of satisfactory quality is judged at the start, not when the thing breaks later on. The burden of proof does not shift to the other side to prove the particular reason why Shower A lasted less time than Shower B. This case could have gone either way, perhaps a different DJ would have agreed with you, but to have more than a 50/50 chance of winning I think you would need something else to show that the Shower was actually faulty - for example, some problem in the construction of the shower or some proof that the anti-scaling device was broken from the start.

 

Thank you very much for your input, steampowered. I am grateful and I see what you are saying.

 

The only thing I would pick up on in your statement is that satisfactory quality is judged at the start.

 

With regard to the issue of durability, which is an aspect of satisfactory quality and referred to in s 14(2) of SoG,

surely that cannot be judged at the start as it is only possible to know how durable the product has been when it breaks down,

i.e. when a component becomes faulty or wears out?

 

It might have been more appropriate for durability to be an aspect of "fitness for purpose" under s 14 (3) but unfortunately it is not.

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"This particular model came with an anti-scale device and a two year anti-scale guarantee. After two years and two months the shower scaled up and the water produced was either scalding hot or freezing cold, rendering the shower unusable." The OP paid £270 so expectations were that the shower should last a lot longer than 2 years and not 2 months past the warranty date. At that price that is what any reasonable person would expect especially if there were cheaper options available. The shower was specifically purchased due to it supposedly being warranted to be scale free for a minimum of 2 years giving the impression, that it would be scale free for a lot longer than 2 years.

 

Thanks for taking time out to post in this thread, Surfer01, and thank you for your analysis. I appreciate this greatly.

 

I confess that maybe I was misguided or was kidding myself; I thought I had this nailed before I went into the DJ's chambers based on the grounds I stated above. I was arguing precisely what you have stated about reasonable expectations as to durability based on the factors you have outlined.

 

I take steampowered's point as well, though, that what I presented may be good evidence but not proof. Prior to the hearing I thought this would be sufficient to prove on the balance of probability that the shower is faulty on grounds of reasonable expectations of durability.

 

The case is not yet over but I am going to have to come up with something else as if I simply restate my position the judge is not going to change his mind. He did state that unless I can show him there was something wrong with the product I will not persuade him to find in my favour, and that what I had submitted had not shown that there was something wrong. I do not see how taking the shower to the manufacturer is going to help as my contract is not with the manufacturer but the seller (I note your earlier comments about the judge not understanding SoG and I too began to form that opinion in the hearing). He asked me three times had Ii contacted the manufacturer and each time I told him no, for that reason.

 

The judge advised after the hearing that the Court gets to know about the rogue retailers/traders and that this defendant had never come before the court before. That may well be so, but to me that is immaterial. This comment was after the hearing and I am sure (or I hope) that this did not emphasise the judge's opinion.

 

I think steampowered has made a fair point, that a different DJ might have agreed with me. It is pot luck as to how sympathetic a judge you get; how consumers must wish all judges were like Lord Denning. My only hope may be that when the case returns to court a different judge hears the case, though I doubt that is likely.

 

I do not think I will have any grounds for appeal as if the judgment is to be as it stands at present then the DJ will have found as a fact that the shower was not faulty, i.e. not unsatisfactory, and I don't believe I can appeal on a point of fact alone.

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The only thing I would pick up on in your statement is that satisfactory quality is judged at the start. With regard to the issue of durability, which is an aspect of satisfactory quality and referred to in s 14(2) of SoG, surely that cannot be judged at the start as it is only possible to know how durable the product has been when it breaks down, i.e. when a component becomes faulty or wears out?

 

Legally, whether something is satisfactory quality is judged when you buy it - you need to show that there was some sort of fault at the beginning. What you can do is rely on the fact that the product failed to show that there must have been a fault. If the product failed after less than six months, the burden is on the seller to prove that it was faulty but otherwise the burden is on the buyer. Unfortunately I guess you didn't manage to convince the DJ that there must have been a fault.

 

The OP paid £270 so expectations were that the shower should last a lot longer than 2 years and not 2 months past the warranty date. At that price that is what any reasonable person would expect especially if there were cheaper options available. The shower was specifically purchased due to it supposedly being warranted to be scale free for a minimum of 2 years giving the impression, that it would be scale free for a lot longer than 2 years.

 

I don't agree. When I buy products with a 2-year warranty I normally expect them to last a minimum of 2-years. I hope they will last longer, but I don't feel entitled to it because sometimes thing just do not last as long as you hope. I would feel entitled to a repair if the failure was caused by a specific manufacturing fault, but otherwise I just accept it as part of life.

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ok someone asked me to pop in...

 

firstly, lets get this word warranty nailed...

 

In all intend and purpose 'a warranty' is nothing to do with SOGA & nothing to do with how long a consumer 'should' expect that product to last.

in most cases, it is merely a sales gimmick & protrayed as a get out clause deceiving the customer into thinking what has already been referred to above

"if it breaks outside of the warranty/guarantee - tough luck customer"

 

this is NOT the case.

 

any warranty/guarantee is in ADDITION to your statutory right under SOGA - it DOES NOT replace or void any SOGA Claim.

 

...........................................................

 

to the case at hand.

 

SOGA clear states a product should last 'a resonable time'

obv that time varies from product to product,,,,,but

i don't know of any domestic product that 26mts is accepted as 'a resonable time'.

and i doubt, in all honesty, neither would a judge.

 

the judge here is wrong to 'assume' that as the manu gives 'a warranty' of 24mts

that then makes it acceptable that if the product fails outside of this 'time limit' there is no recourse under SOGA.

 

that is tantamount to ruling that any product is only expected to last the time of any implied warranty/guarantee

which

is clearly WRONG under SOGA, making SOGA effectively useless...this is one point of your appeal.

 

i also agree with the OP's comment that involving the manu is pointless - outside of warranty - tough luck consumer will be their answer.

there could however be worth in getting the manu to comfirm the unit has failed though , thus supporting a SOGA claim - 'a resonable time'

 

as to the reference of comparision to a previous unit, i concur this is a valid point too.

 

the issue of needing to prove 'if the filter was faulty from day one' IMHO does not come into question here under SOGA.

 

the fact that it did fail because it was not installed properly is p'haps a more important one though.

 

this might be the ultimate 'get out' by the retailer.

 

dx

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SOGA remedies are on top of a warranty or guarantee. However, a guarantee/warranty does form part of the description of goods - see s14(2A) SOGA which says satisfactory quality is assessed "taking account of any description of the goods". A description of goods as being guaranteed for a certain period of time will influence how long a reasonable person expects them to last. Not the be all and end all but one of the facts the court will consider.

 

What is a reasonable time for this particular product is a question of fact, making it extremely difficult to appeal.

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nope

 

otherway around.

 

soga is part of our statutory rights

 

warranties are an addition to those.

 

and have no bearing upon soga at all.

 

if we apply your theory

 

that means that all white goods that only have 1yrs warranty are expected to fail.....

 

what is a resonable time for ANY appliance under soga is not FACT ... thats why they use the word 'resonable'

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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The judge advised after the hearing that the Court gets to know about the rogue retailers/traders and that this defendant had never come before the court before. That may well be so, but to me that is immaterial. This comment was after the hearing and I am sure (or I hope) that this did not emphasise the judge's opinion.

 

The issue is not whether the defendant has been in court previously, but whether the item has been the subject of a court issue. If you go for an appeal, your best bet is to call the manufacturer as a witness. You can do this without a problem and the manufacturer would be obliged to appear in court to give expert report on item.

It is highly unlikely that they will want to appear in court and that way you may get a replacement. We used this tactic on a mattress that was just over 3 years old and manufacturer supplied a new mattress to dealer. Part of our argument was that the mattress was an integral part of the caravan.

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Thank you very much, dx100uk, for giving this matter your attention and for your informative posts. Thank you also to steampowered and Surfer01 for your continued participation in the thread. I see steampower's opinion is at odds with mine, dx100uk's and Surfer01's but that is positive as it encourages debate and explanation and thus can only be helpful in the long run. It is always useful to receive contrary opinions and in this case it helps give an insight into how the judge may have been thinking; and we are all entitled to our opinions, so thanks again to all.

 

ok someone asked me to pop in...

 

firstly, lets get this word warranty nailed...

 

In all intend and purpose 'a warranty' is nothing to do with SOGA & nothing to do with how long a consumer 'should' expect that product to last.

in most cases, it is merely a sales gimmick & protrayed as a get out clause deceiving the customer into thinking what has already been referred to above

"if it breaks outside of the warranty/guarantee - tough luck customer"

 

this is NOT the case.

 

any warranty/guarantee is in ADDITION to your statutory right under SOGA - it DOES NOT replace or void any SOGA Claim.

 

That was my understanding and I even sent the judge a copy of the relevant dicta from Rogers V Parish; not that the judge paid any attention to this.

 

...........................................................

 

to the case at hand.

 

SOGA clear states a product should last 'a resonable time'

obv that time varies from product to product,,,,,but

i don't know of any domestic product that 26mts is accepted as 'a resonable time'.

and i doubt, in all honesty, neither would a judge.

 

the judge here is wrong to 'assume' that as the manu gives 'a warranty' of 24mts

that then makes it acceptable that if the product fails outside of this 'time limit' there is no recourse under SOGA.

 

that is tantamount to ruling that any product is only expected to last the time of any implied warranty/guarantee

which

is clearly WRONG under SOGA, making SOGA effectively useless...this is one point of your appeal.

 

Thanks. My submissions were based on these considerations; the judge had other ideas and didn't want to listen to this line of argument.

 

I tried to argue that 26 months was not reasonable, as you have stated; and as you know I was using the previous like-for-like shower as my evidence of this. I still maintain that in light of the durability of this previous shower I was entitled to have a reasonable explanation that the new shower would last for a period approaching the length of time of the last one; certainly for more than half of this time.

 

I made the point that no either appliance in my home has lasted for such a short period of time; not even appliances such as washing machines and kettles which use the same water supply. The judge countered by saying that if you bought a washing machine that went wrong in, say, three years due to limescale build up in the piping you wouldn't blame the retailer. Well....yes I would. If I pay a few hundred for a washing machine and get just three years out of it I would not find that sufficiently durable to be of satisfactory quality.

 

The judge's approach is clear. Because it is a hard water are he believes we all have to accept that products are going to go wrong quicker than in a soft water area. Of course I accept that, but that doesn't necessarily mean they are of satisfactory quality as they may not be sufficiently durable. The judge doesn't want the seller to be liable for something over which in his view the seller has no control over, i.e. the scale in the water supply.

 

i also agree with the OP's comment that involving the manu is pointless - outside of warranty - tough luck consumer will be their answer.

there could however be worth in getting the manu to comfirm the unit has failed though , thus supporting a SOGA claim - 'a resonable time'

 

Yes, I may have to do this as I am expecting a judgement from the court that the case is adjourned for three months to allow this to happen. I do have it in writing from the seller that the reason the shower has failed is due to it being scaled up and that a replacement is the only viable option. I was hoping that would be sufficient as the seller's engineers did inspect this.

 

as to the reference of comparision to a previous unit, i concur this is a valid point too.

 

Thanks. I felt this would be enough to establish that the durability requirement had not been met.

 

 

the fact that it did fail because it was not installed properly is p'haps a more important one though.

 

this might be the ultimate 'get out' by the retailer.

 

That can't be the case for if it wasn't installed properly then the seller is liable as it was his engineers that installed it. The seller is a plumber who has been active in the area for 30 years and he does have a good reputation. My partner has used him for 21 years and up until now she never had a problem with his products or services; though she does not know her rights and, like many a customer, would just have accepted the shower as having gone wrong due to scale and not the fault of the seller. She would have immediately forked out for a replacement had I not been her live-in partner of eight years.

 

what is a resonable time for ANY appliance under soga is not FACT ... thats why they use the word 'resonable'

 

I wasn't certain about this aspect of things, dx100uk. I appreciate the difference between a point of law (can be appealed) and a finding of fact (cannot be appealed) or even a point of law and fact (can be appealed) but I was worried that what is reasonable would be an issue on the facts of the case. If it is not but is a matter or law, then that gives me encouragement as if the judge is not considering a point of law, and up until now I don't believe has done, then I think he is going wrong. I will welcome anything further which you or anyone can add to this or a suggestion of how to put this to the judge. I got the impression that he seemed fairly set in his ways and that his mind was made up. He kept emphasising that I hadn't shown there was something wrong with the shower, yet the seller has admitted that it has scaled up. The judge must think this isn't something wrong or that producing scalding or freezing cold water is okay!

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ok good so that gets the installation sorted as good.

 

 

so..

 

I made the point that no either appliance in my home has lasted for such a short period of time; not even appliances such as washing machines and kettles which use the same water supply. The judge countered by saying that if you bought a washing machine that went wrong in, say, three years due to limescale build up in the piping you wouldn't blame the retailer. Well....yes I would. If I pay a few hundred for a washing machine and get just three years out of it I would not find that sufficiently durable to be of satisfactory quality.

 

so i wonder what view the judge would have if it was fitted with a device to stop the furring to happen? like the shower:lol:

 

his logic just does not hold water!

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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so i wonder what view the judge would have if it was fitted with a device to stop the furring to happen? like the shower:lol:

 

his logic just does not hold water!

 

dx

 

Very good. Might even try that line when this matter goes back in front of him.

 

I know where the judge is coming from. He doesn't want the seller to be responsible for something over which he has no control, i.e.the fact of this being a hard water area with a lot of limescale in the water which gets into all products that use water. He thinks that this is just something that all of us who live in a hard water area, including him, have to accept.

 

Needless to say I do not agree with that line, particularly in light of how the longevity of the previous shower, the price paid, the reputation of the manufacturer/seller, the antiscale filter and two year warranty all combine to provide a reasonable expectation as to durability of longer than two years and two months.

 

The seller advised the judge that he has 30 years of experience in plumbing, selling and installing showers and this experience has taught him that such shower rarely last must longer than two years in this hard water area; and that a shower without an antiscale filter will last about one year. The judge seemed to accept this and felt, along with the seller, that it was fantastic and something of a freak occurrence that the previous shower lasted almost five years. I didn't do a very good job of defeating that line when this came before the judge.

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If you haven't had a full hearing yet it sounds like you could use some more evidence. In a larger case you would get an independent report from someone in the trade but probably not worth it for a £270 case.

 

It may be a long shot but perhaps you can find some sort of report or advertising material or plumbing publication explaining how anti-scale devices work and how long they should last? This would give you something concrete to point to, the judge clearly isn't comfortable to rely on your assertion that the shower must be faulty because it only lasted 2-years.

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Thanks, steampowered; something for me to think about there!

 

Dx100uk, can I invite you to comment further on this matter? I am keen to run with this case but am worried that I am not going to convince the judge. I know what I want to put to him but my concern is that he simply is not going to see it, or maybe I really have got this entire thing wrong.

 

If the issue is that reasonable expectation as to durability is a matter of law, and that as such goods must last for longer than their guarantee period, how can I get this judge to see and accept this? I am concerned that his mind is made up.

 

I don't particularly want to send the unit off to the manufacturer as I don't think the manufacturer is going to say anything useful (and my contract is not with him but with the seller) but the judge wants me to do this and has stated so in the judgment where he has adjourned proceedings so I suppose I will have to.

 

I came across an online article saying that electric showers do not last long – usually 8-10 years. That is encouraging. The article did go on to add that in a hard water area the unit and head can quickly become scaled up, however.

 

Sorry if I appear stupid or am asking you to repeat yourself for clarification, but I need to be clear in my mind here before I run with this. The judge has obviously taken the view that I should just accept the shower as it is for I live in a hard water area and things will scale up. He has said I won’t persuade him unless I can show a fault. I can show that it has scaled up; the seller has acknowledged this. But it seems that this is not enough for this judge. I initially thought that was all I had to do – show the judge that the shower had not lasted nearly long enough to meet my expectations in light of the two year guarantee and the longevity of the previous shower – but they say there are none so blind as those who do not wish to see.

 

I would obviously much rather this matter is resolved when the case is resubmitted to the judge, rather than have to go to appeal. So I guess what I am asking is, how to I put things to give myself the best chance of achieving this.

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The judge is banging on about the manufacturer because if there is a design fault then that is the manufacturer's problem, not the retailer. This is known as a latent fault and is why he has suggested you chase up the maker to see what they say. If they admit liability then the retailer can act with you as a concert party to recover your losses- ie you get a refund and he gets his money back from the Mfr. If you cant prove a latent fault then your claim rightly fails as it is outside the retailers responsibility to provide you with an item of mechantable quality. limescale is not a fault with the equipment any more than your car is faulty because you have run it without oil. There is no fixed period that the SOGA covers and the judge has made a decision that this is long enough and despite your arguments he has made his decision as to what is reasonable under the circumstances. You can challenge his decision but that challenge has to be on a point of law or the judgement so preverse that no reasonable person could reach the same conclusion. there are some pretty strange decisions handed down that arent perverse so I would caution against that one. Sorry that is not what you wanted to hear, it is the reality of how courts look at things.

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Thank you very much for taking time to post, ericsbrother . I am grateful.

 

Can I pick up on some of your points in a way which hopefully explains my thinking without trying to be critical, as being critical is not my intention? If my thinking is flawed, I am more than happy to hear why.

 

The judge is banging on about the manufacturer because if there is a design fault then that is the manufacturer's problem, not the retailer. This is known as a latent fault and is why he has suggested you chase up the maker to see what they say. If they admit liability then the retailer can act with you as a concert party to recover your losses- ie you get a refund and he gets his money back from the Mfr.

 

I see what you are saying, but what I do not understand is this. My contract is with the seller and not with the manufacturer. I was under the impression that contract law and the SoG Act made it quite clear that it is the seller and not the manufacturer who is responsible to the buyer. If the goods are not of satisfactory quality I understood that the buyer could claim damages from the retailer. The retailer might then be able to recover from the manufacturer as no doubt they will have a contract.

 

If you cant prove a latent fault then your claim rightly fails as it is outside the retailers responsibility to provide you with an item of mechantable quality.

 

Forgive me for sound nitpicky here, but the goods must be of "satisfactory" quality. Following the 1994 Act, this replaced "merchantable" quality.

 

limescale is not a fault with the equipment any more than your car is faulty because you have run it without oil.

 

Interesting analogy. If I run a car without oil then clearly that is my fault for not putting oil in it, ensuring it is always topped up, changing it with regular services, etc. Limescale surely can't be my fault? It might not be the fault of the seller either, but I have always understood that the SoG Act protects the buyer and not the seller. Furthermore, the product was fitted with an antiscale filter to try and reduce the impact of limescale which has seemingly only been effective for two years.

 

There is no fixed period that the SOGA covers and the judge has made a decision that this is long enough and despite your arguments he has made his decision as to what is reasonable under the circumstances.

 

Now here we come to what may be the crucial argument. Is reasonable expectation as to durability under s 14 (2)B (e) not a matter of law, particularly when the product comes with a guarantee? Dx100uk has suggested that it is and explained why he believes goods must reasonably be expected to last longer than the period of the guarantee. That makes perfect, logical sense to me.

 

I gave the judge a copy of the decision of the CA in Rogers v Parish where the Court said, inter alia, that if the seller should be prepared to expect that the types of defects that a guarantee covers will occur, then he would be better off not having his guarantee. That cannot be what Parliament intended with SoG and thus the CA rejected that line of argument. A guarantee adds to the seller's rights so he is entitled to expect a better quality product for his money than a similar product which comes without a guarantee. The judge took no notice of this.

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The judge is banging on about the manufacturer because if there is a design fault then that is the manufacturer's problem, not the retailer. This is known as a latent fault and is why he has suggested you chase up the maker to see what they say. If they admit liability then the retailer can act with you as a concert party to recover your losses- ie you get a refund and he gets his money back from the Mfr. If you cant prove a latent fault then your claim rightly fails as it is outside the retailers responsibility to provide you with an item of mechantable quality. limescale is not a fault with the equipment any more than your car is faulty because you have run it without oil. There is no fixed period that the SOGA covers and the judge has made a decision that this is long enough and despite your arguments he has made his decision as to what is reasonable under the circumstances. You can challenge his decision but that challenge has to be on a point of law or the judgement so preverse that no reasonable person could reach the same conclusion. there are some pretty strange decisions handed down that arent perverse so I would caution against that one. Sorry that is not what you wanted to hear, it is the reality of how courts look at things.

The contract is with the retailer and not the manufacturer and the judge cannot circumnavigate the law. The judge would need to instruct the defendent to contact the manufacturer and not the consumer. This judge does not have any idea on Sale of Goods Act or consumer law. Can you request another judge?

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I do not think it is a case of the judge failing to understand the law. Judges in this country tend to be very experienced. The judge simply is not persuaded that the shower is not satisfactory quality based on the limited evidence provided. The judge does not agree that the fact the shower failed after 2-years means there is something wrong with it. I confess I do not know very much about showers and have no idea what would be a reasonable time a shower to last, if the judge is in the same position then you will need to prove why 2-years is such an unusually short time.

 

Your contract is with the retailer not the manufacturer, the retailer is ultimately responsible for any faults which arise. I imagine the judge adjourned the case to see if it could be solved without the need for a full hearing and final decision on the dispute, rather than for any particular legal reason. Under the CPR the judge is required to encourage the parties to settle outside court and give them time to make this happen if necessary. Personally I would use this time to contact the manufacturer to see what they say. If you can get some written evidence such as a letter or product specifications from the manufacturer, this would support your case.

 

I do not quite follow some of the points you make about guarantees. Your contractual rights under a guarantee are entirely separate to the contractual rights you are given by SOGA. The guarantee could be shorter, the same or longer than the expected durability of goods under SOGA. For example, I saw a backpack in an outdoors shop last week which came with a life-time guarantee but there is no way a backpack would be expected to last your entire life under SOGA. This is my understanding of Rogers v Parish - the guarantee is something different to SOGA, it is not relevant to SOGA itself (although note my previous point that any "description" of the shower will be taken into account, so if it is advertised as being good for 2-years that will influence the reading under SOGA).

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