Advice on my chances at Small Claims Court against Listers Audi

[yans85]

Hi, new user here but long time browser.

 

I am after some advice on a situation I am currently involved in...

 

On 30/04/2018, I was driving home with my wife and 22 month child in my 2016 Audi A4 which has done 19,500 on the clock. Whilst driving, I lose control as if I had burst my tyre and upon regaining control and parking, I inspect the car to find the front passenger wishbone snapped off. The car was towed back to Audi in Coventry to be inspected and I was informed that I must have hit something as there was under tray damage as well as to the gear box liner.

 

The issue is that on 18/04/2018 I took the car to Listers Audi Solihull for its service and health check. Audi actually record any issues in a video called Audi Cam which they provide to customers. Within said footage, you can actually see the thumbnail sized dent in the wishbone where the fracture and eventual crack occurred. I have provided images of the video still that shows the dent; the technicians hand is mere inches away from the dent yet he failed to inform me resulting in the car being driven for under two weeks for it to eventually fail. I have also attached the image of the wishbone snapped.

 

My view is that the technician should have informed me of the dent as the wishbone is a vital part that undergoes stresses and any damage especially one that was visible would affect the performance of the wishbone causing it to eventually fail.

 

The Listers Audi service manager stated in regards to the this "We carry out a vehicle inspection on all cars that we work on in the workshop, this inspection is part of our duty of care to our customers, and is an industry approved process. I have reviewed the inspection and Technicians report on your vehicle and I find that everything was done correctly. With specific regard to the suspension arm I can see that the indentation gives no suggestion that fatigue has taken place in the arm, therefore there is no reason the Technician, who has no knowledge of the vehicle history would suggest the arm be replaced. We could clearly see damage to the undertray and arch liner, but that is it. we were not aware that the vehicle has sustained a significant impact to the underside/suspension, and there was no mention of this on the Job Instruction from you. "

 

I would have had no idea of any damage to the underside of the car as most do not have the equipment to lift the car spot high to inspect and I would argue that's why the car is taken in for a service in the first place.

 

I contacted Audi UK for them to mediate however Listers would not budge to repair the car, therefore am looking to take this to small claims court. An independent assessor from The Institute of Automotive Engineer Assessors (IAEA) has also looked at the damage and confirmed the dent is the origin cause of the part to snap. His view is that it would be 50-50 for the court to award my claim which would be for my insurance excess of £650, The impact on my policy increasing due to the claim, expert fees and court fee to be awarded. I would be representing myself and the assessor would also attend.

 

Do you guys think its worth pursuing through small claims court and any views of my chance on success would be most welcome.

 

Thanks

 

Yans

[king12345]

Surely there was a big dent there when the car was inspected.

However, i can only see a goodwill repair from Audi rather than a full admission of fault.

Cars go wrong and fortunately you were driving an audi with several other bits holding the suspension.

Other cars would have probably lost the wheel.

[BankFodder]

On the basis of what you say, it seems pretty clear that the service centre had a duty to you in contract and also a general duty of care. Your independent assessor has identified the damage to the wishbone as being the cause of the sudden failure. What he hasn't said – and what you need to find out – is whether he would have expected a service centre to bring this damage to your attention and to identify it as a weakness and a potential source of failure in the future.

 

This is an essential step which in your account so far seems to have been missed out. I think you need to go back to the independent assessor and ask him/her specifically on this point – and you want it in writing.

 

If an independent examination confirms not only that the damage resulted in a structural weakness but also it should have been noticed by a reasonably competent service centre carrying out the kind of work which they did, then I think you have an excellent case – and much better than 50-50 suggested by your independent assessor. However, the independent assessor is not a lawyer.

 

On the basis that you get this additional confirmation, you then have to decide what you can claim for.

 

Clearly the structural weakness and subsequent failure is not the responsibility of the garage. However the circumstances in which it happened could be held to be the responsibility of the garage because your position would be "but for" their contractual failure/negligence, you would have been apprised of the situation and could have had the wishbone replaced on your own terms without all of the additional expenses which have been associated with the incident.

 

Therefore if you were to bring an action, you could reasonably claim for all of the expenses you have incurred minus the cost of the wishbone repair itslef which you would have been liable for in any event. This means any towing charge, loss of vehicle or hire vehicle expenses, expert reports, loss of excess – et cetera et cetera. You will have to work it out.

 

I have no idea how much it is going to be – but I'm quite sure that it will be well within the small claim limit. I would put together a complete case – with arguments and calculations and put it to Audi and also to their repair garage. I think you should tell them also that you are prepared to go to court about this and that if they do not accept your report with the opinion of the independent expert you have employed so far, that you will consider that you are obliged to seek a second expert opinion to corroborate the first and that you will be looking to them to pay the cost of this as well.

 

Tell them that if they want to avoid these additional expenses and to mitigate their losses and to avoid court fees that they would be advised to settle the matter immediately.

 

It is very helpful that they have already admitted that they owe you a duty of care. If you bring a court action then I would bring it on the basis of the contract and you can throw in negligence as an alternative – but I'm quite sure that contract will do and in fact it is well established that where there are overlapping contractual and tortious responsibilities, that normally speaking the action should be fought on the basis of a contract.

[yans85]

Bankfodder, thanks for your comprehensive reply. I am waiting on the assessor for his response to this - whether he would have expected a service centre to bring this damage to my attention and to identify it as a weakness and a potential source of failure in the future.

 

I have already asked him to do me a report if he thinks this matter is worth taking to small claims court. I recall him mentioning that the dent may have been small enough to miss but for me its the fact that the technicians hand was right near the dent that makes me feel that he should have identified it and informed me.

[yans85]

Hi,

 

Quick update on this..

 

the assessor has stated that he has given more thought on this and thinks although it is 50/50, the judge may air on the side of me. He has stated that he would have expected a service centre to bring the damage to my attention and to identify it as a weakness and a potential source of failure in the future. This is due to the wishbone being cast aluminium and the dent would have affected the structural integrity of it eventually causing it to fracture (on the same point of the dent) and thus crack. The assessor has stated that his report will reflect the above.

 

My plan from here is to send my letter to Audi with the assessors report and submit the small claims court application if they do not agree or negotiate terms of compensation.

 

Are there any more views or ideas on dealing with this matter?

 

I shall update accordingly to help/guide others in a similar situation.

[BazzaS]

Are you claiming for additional damage caused by the mechanical failure? Or the failure itself?

 

You'd have had to pay for the part itself & labour anyhow, so you have suffered no additional harm there.

However, if there was extra damage caused when the part failed, over and above the cost of replacing the failing part, then your argument is that this was:

a) foreseeable by a mechanic of suitable knowledge, experience and skill,

b) arising as a result of the risk of failure not being highlighted, occurring as a direct consequence (“but for the failure to identify the risk, the extra damage wouldn’t have occurred “)

[sgtbush]

I think we need to see the video footage before commenting.

[yans85]

I think we need to see the video footage before commenting.

 

Ok, I’ll try attaching the video as soon as I’m back from work in the evening. The screenshot of the video is attached however

[yans85]

There was much more damage caused to the car due to the wishbone snapping, parts attached to the wheel itself as well as some damage to the wheel arch due to the wheel digging into the arch, I have been initially told estimated damage would be in the region of £3,000-£4,000 however the garage is still yet to give an exact amount

 

https://drive.google.com/open?id=1MD_RDXUE1TtvcvDK20YCH3Fm3th_vH1x

 

I have posted a link to the video hopefully it can be opened. I can’t upload directly at the moment as it says it’s not the correct format. In any case if you pause at 31 seconds into the video, the dent is present

[BankFodder]

There was much more damage caused to the car due to the wishbone snapping, parts attached to the wheel itself as well as some damage to the wheel arch due to the wheel digging into the arch, I have been initially told estimated damage would be in the region of £3,000-£4,000 however the garage is still yet to give an exact amount

 

this is all recoverable. This could be why the garage are getting so anxious about it

[sgtbush]

What is interesting in the video is they give a close up of the rear suspension on one side at the rear but no other and the technician states no damage to suspension.

However I cannot see any damage to the wishbone as the cam quickly pans past it.

Maybe that's me missing it.

Can the op state which wishbone snapped.

[BankFodder]

Hi,

 

Quick update on this..

 

the assessor has stated that he has given more thought on this and thinks although it is 50/50, the judge may air on the side of me. .

 

I'm sure this is correct

 

 

 

My plan from here is to send my letter to Audi with the assessors report and submit the small claims court application if they do not agree or negotiate terms of compensation.

 

I have no idea why you should even contemplate the possibility of negotiation at this stage. Especially with the wishbone being aluminium and your assessor being so positive about it, – and as he says, I'm sure that the judge will favour your evidence over the evidence of the dealer I think you are in an extremely good position and your chances of success are better than 85%.

 

I would come up with your figure. You might even want to put something in Fort stress and the waste of time that day when it happened. Maybe you can tell us more about that.

 

Stand your ground on this. It sounds like a shocking piece of negligence to me. I can imagine that Audi would want to avoid any more bad press for their motorcars and the quality of their support.

[yans85]

What is interesting in the video is they give a close up of the rear suspension on one side at the rear but no other and the technician states no damage to suspension.

However I cannot see any damage to the wishbone as the cam quickly pans past it.

Maybe that's me missing it.

Can the op state which wishbone snapped.

 

Hi it’s the front passenger side wishbone that’s snapped. In the video it’s at 31 seconds in where the technicians hand is touching the gear box liner however it is best for the footage to be played on VLC player where it can be paused frame by frame

[sgtbush]

Thanks.

I can see some sort of mark on the wishbone but im no mechanic.

What I would say even to me being untrained is I can see, just like the technician is underside damage.

Tho would lead me to think that the car has grounded on something, speed bump or something and that would lead me to be closely looking at all the suspension for knocks or dings.

[yans85]

BankFodder

So do you suggest I give them my offer and if they decline then straight to court?

 

I’d rather not go into war and peace about what happened but just to say it happened after a tough shift at work and at 2330hrs where I was with my wife and 22 month old child and approx 1 minute from entering the M6 so the potential for this being much more serious is shocking. In the end I made it home at 0600hrs due to Audi breakdown messing me about as the first recovery van from AA stated it needs a full lift due to the car not being able to be put on the flat bed however another and then another flat bed arrived and by then I was exhausted and they dragged it on. In regards to this, this is due to Audi’s poor service whereas my case would be against Listers.

[BankFodder]

Well I suggest that you stop describing it as an offer.

 

I think you should tell them what the bill is. Make sure it is properly itemised. See what they have to say. If they make a very sensible offer then maybe you want to accept it. However, I certainly wouldn't tell them that you want to negotiate.

 

Also, you don't want to get into protracted correspondence. These things can easily get drawn out.

 

I think the you should present them with the bill and asked them for a response within seven days. If they don't give you a positive reply – which they probably won't – then I would suggest writing them a letter before claim and inform them that you will be getting another expert to cooperate the existing opinion and that also your claim will include £XXX for the distress et cetera.

 

I think it would be helpful if you tell us a little bit more about the incident, how it happened, what the circumstances were, who was in the car – how long it took for the toe of the motorway – et cetera et cetera.

[yans85]

BankFodder, I will take your advice on board.My question is in terms of the distress caused, how do I quantify this other than from what a judge could possible determine? or should I arrive at a reasonable figure? I will now attach my letter minus personal info that I passed to Listers and Audi management. This covers in detail what actually occurred so apologies for the lengthy post..

[yans85]

Vehicle: Audi A4 mileage approx. 19500 miles. Purchased May 2017 from Harold Wood Audi for £27,000. Serviced on 18/04/2018 by Audi Solihull.

 

On 30/04/2018, I finished my work shift at 2300hrs having been picked up by my wife who was with our 22 month old child.

I swapped seats with my wife and drove to the BP service station on the A4600 Hinckley Road to fill up the AdBlue tank as it was low.

Following this, I drove back up the road out of city to go onto the M6 motorway to my home address in Nuneaton.

 

By approximately 2330hrs, I was driving on the right side of the road approaching the roundabout on Hinckley Road junction with Eden Road and was about to slow down to navigate the roundabout when I heard a dull thud from the front nearside of the car which immediately caused me to lose control and the car not responding to steering of the car properly.

 

I shouted out in panic as did my wife due to the sudden and unexpected nature of what had occurred and having already been handling the steering wheel firmly with both hands I managed to regain a semblance of control of the car and turned left into Eden Road to investigate the cause. I suspected that I had burst a tyre as this is the only thing I could attribute as to how I lost control.

 

Upon calming everyone down and exiting my car, I saw that my front nearside tyre was intact with no damage to the side wall or alloy.

I looked at the other tyres but could not see anything.

 

Upon closer inspection of the front nearside tyre, I realised that it was digging into the top of the wheel arch as if the car suspension had been modified to be lowered. I then used my torch to look under the tyre and upon inspection found that the lower suspension arm (wishbone) was snapped in half.

I was stunned to find this as there was nothing on the road that could have caused such significant damage.

 

I immediately contacted Audi Roadside Assistance to inform them of what had occurred and was informed that an AA recovery van would attend by 1240hrs.

I informed the call handler of the circumstances of the breakdown as well as the urgency for a recovery van as the car was positioned in front of an entrance to a building and my wife and child were in the car.

 

I managed to eventually arrange for a friend to collect my wife and child to be taken home.

Whilst waiting, I walked up Eden Road onto the Hinckley Road to inspect the vicinity of where the incident occurred.

Other than a slightly an uneven surface on certain parts of the road, I could not find anything that could have caused such catastrophic damage which could have been potentially fatal especially if I had entered the M6.

 

At approximately 1240hrs, an AA flatbed van did arrive and I met with recovery technician, Daz.

Upon inspecting my car, he informed of the snapped wishbone which I was aware of already.

Daz took out a wheel skate to put under the wheel however soon realised that it could not fit under the car as it was now too low due to the collapse of the wishbone and other internal components which I cannot recall the names of.

 

He informed me that the weight of the car was sitting on the wheel causing undue pressure and had caused slight damage to the wheel arch.

Daz stated that the car would require a full lift and he contacted his department to advise them of the issues and the requirement for a HIAB lorry.

I was informed that there would now be a further wait for the correct van to turn out.

 

By now it had become very cold even when staying in the car as I decided against turning on the car for fear of further damage.

Sometime later my friend, returned to assist me and soon after that, at approximately 0140hrs, a PGSS Motoring Services recovery van arrived.

I realised that this was a flatbed also.

 

Myself and my friend queried if he would be using skates as this is what had already been attempted by AA to no result and that we were advised a HIAB would arrive. The technician who was completely disinterested in us stated that he would be hooking the car up and dragging it onto the flatbed.

Not having enough knowledge to questions otherwise at the time, I let the technician continue however I remained concerned.

 

During this, another PGSS recovery van arrived with this technician stating that he was just passing by.

I and my friend explained the situation to this technician as well as what Daz from AA had stated.

This technician confirmed that if the car was to be hooked and dragged onto the flatbed as it was being prepared to, then further damage would very likely be caused and that a full lift would indeed be required.

 

Due to this assertion from another technician, I stated to technician carrying out the recovery that I was not happy with what he was about to do and would like him to stop. This was not only due to the concerns but his overall dismissive attitude and being in a rush to get my car on the flatbed and be gone. The technician became angry and stated that he had been doing this for 14 years however I stated that his very own colleague had the same concerns as us and that I would be contacting Audi Breakdown to determine what had gone on. The technician returned his equipment and abruptly handed me a copy of the paperwork and left.

 

By now it was approximately 0215hrs and already exhausted from a tough shift, I called Audi Breakdown.

I was informed by a staff member that they would liaise with AA to determine what went wrong and that the manager would call me.

Sometime time had passed where I did not get any call back and I was left to chase up what was going on.

 

It lay on me to call on three occasions to chase up an update.

At one point I was informed that I had turned down a recovery truck for no reason.

This is despite Daz from AA already having informed them that a full lift was required.

I was then informed that they were trying to get in touch with PGSS to determine what my requirements are despite Daz from AA having already told them.

 

As far as I am aware; Audi work in conjunction with the AA not PGSS of which their technician could not have been any less interested of what had occurred.

At this point, I was tired, angry and frustrated of what was going on and I let it be known that this was unacceptable.

I was informed that the manager from AA would be in touch with me to assist.

 

By now it was approximately 0400hrs when I was contacted by the AA manager who informed me that the AA does not have HIAB vehicles in their fleet except for emergency situations and that one may come out to me in the morning from 0800hrs. This manager advised that I leave my vehicle in situ and for me to go home.

 

I stated that this was unacceptable and that my car was parked over an entrance leading to a barrier gate to a building.

The manager then stated he would look into getting one out sooner.

Sometime after, I was contacted by the AA manager again who stated that a HIAB lorry would set off shortly from Leicester and would be able to do a full lift of my car onto the lorry and that ETA would be approximately 30 minutes.

 

Happy that the situation was eventually resolved, I waited for the truck to arrive.

At approximately 0500hrs, a recovery truck from Crouch Recovery arrived only for me to realise that this was yet another flatbed.

Exhausted from all this, I did not have the energy to argue but yet again explained that I was advised a HIAB was required for my car.

The technician stated a full lift would not be needed and proceeded to hook the car and drag it albeit very carefully onto the flatbed.

The car was to be taken to Leicester and then later to Audi Coventry.

 

From the start of the incident at 2330hrs 30/04/2018, I was to return home at approximately 0600hrs 01/05/2018.

 

The weather conditions were dry with no rain however it was cold out. There was sufficient street lighting for visibility on the road where the incident occurred with no debris, objects, fluids or potholes near or up to the point where the incident occurred.

 

I have since been informed that I must have hit a pothole on the road for the damage to be caused as there is impact damage on the car. I am adamant that there was nothing on the road for such significant damage to occur. For me to have struck something as significant to cause such damage to the wishbone, I would have spun out of control and definitely collided with street furniture. As such, there are no skid marks on the road from my car and I would encourage Audi to visit the road to inspect yourself.

 

Further to this, damage to the under tray and gearbox lining was already present during my service and health check by Audi Solihull on 18/04/2018 which is evidenced by the Audi Cam provided and shown to you. Audi Solihull did not raise any concern of any damage or significance in relation to the wishbone of which I am sure they would have done so and any other issues highlighted by them were classed as ‘advisory’.

 

It has been pointed out by Audi Coventry that there are scratches/scuffs under both front wishbones which caused the wishbone to fail. From looking at these scratches/scuffs, there is no way they could have done such catastrophic damage for the wishbone to cleanly snap. This initially was the view an assessor of The Institute of Automotive Engineer Assessors (IAEA). He was to change his view upon analysing the images he took which he later determined to show a dent on the exact point of the crack.

 

Coming to the latest update as of 09/05/2018, I have been informed by Coventry Audi that there is actual impact damage on the wishbone at the same location of the fracture where it has snapped. The photos of the wishbone and video from the Solihull Audi service were analysed by myself and the assessor where it is confirmed there is an impact mark on the wishbone as stated by Audi.

 

However, this obvious impact mark was present also during the service on 18/04/2018 and was mere inches from the technicians hand when he inspected the vehicle as seen 31 seconds into the video with screenshots provided. The technician neglected to inform me of this damage which would have been classed as a ‘requiring urgent attention’ type of repair which I obviously would have authorised for repair during the service. This whole situation would not have come about had the technician informed me of this in the first place. In light of this, I take the view that Audi Listers have been negligent in highlighting this repair which was clearly visible to the naked eye and therefore on this basis should repair the car.

 

I would like to think that I purchased a great car from a great company however the issues that I have had with this car and the handling of these issues make me question ever purchasing or recommending Audi again. From the day I bought this car and bringing it home, I was to find on the first night, that the car alarm would go off in the middle of the night and the battery become flat.

 

This would go on for three embarrassing and stressful nights until the car was collected and returned to Harold Wood Audi to be fixed. From there, I eventually received the V5C in the post to only find that there are two keepers on record. This left me to rectify this by liaising with the DVLA and Audi Harold Wood to show as the one and only keeper on record. Now I am having to go through the struggle of getting my car fixed by Listers Audi due to Solihull Audi’s negligence in not informing me of the damage.

 

I ask that you take all that I have written into account from the issues I have had with the car and the handling of these issues. Bearing all this in my mind, I request for my vehicle, which I still very much prize, to be repaired and for a courtesy car to be provided for the duration of the repair so that my faith in Audi can be restored.

Edited May 15, 2018 by dx100uk
spacing

[BankFodder]

Well that's quite a story – but it's too long for the letters to Audi.

 

I would try to make it briefer and also bullet pointed.

 

I don't think you need to refer to the arguments with the breakdown people. Refer to the fact that your wife and child were in the car, the time, temperature, and the time you eventually got home. The distress caused to everybody.

 

I think you could eventually think about claiming about £500 for these general damages.

 

You also need to itemise and to cost up the value of the damage caused by the snapping of the wishbone was driving along.

 

And other associated expenses which you would have not experienced had the fault been identified and the wishbone had been replaced at a time and place of your choosing

[yans85]

BankFodder hopefully you have seen the video by now with the dent at 31 seconds.

 

In regards the letter, yes they already have seen that so my next one will only cover only the pertinent points as you mentioned.

 

I will speak to my insurer to see if they can determine how much the claim will impact future premiums but essentially on top of this I will be claiming for the excess fees, the expert fees and distress this has all caused and will carefully itemise an accurate figure.

Edited May 15, 2018 by dx100uk
quote

[yans85]

Ultimately if I win, the insurer could then claim from Audi the money that was spent on repairing my car

[BankFodder]

Yes – clearly the insurer will want to recover their losses.

 

I expect it is likely to impact on future premiums as well. I doubt whether these will be recoverable – it is extremely unfair

[yans85]

I’ll certainly try to get it recovered and hopefully have a suitable outcome

[yans85]

Hi,

 

I'm posting an update for this situation.

After seeking advice and my car being eventually repaired through insurance,

I sent a Letter Before Action to Listers for a claim of £1775.

 

The same service manager who sent the email as detailed on my first post replied which I have copied the key parts below -

 

...I can see no reason at the time we had your car, to think the indentation on the suspension arm was an immediate cause of concern.

It does not look 'fresh' or recent and there is nothing to indicate that this would cause a fracture of the component. We did not cause this damage nor is its failure our responsibility.

 

It is not practicable to explain the many outcomes of every mark, indentation, scratch, scuff, noise, or minor defect on a vehicle each time it is in with us. We would not suggest a new suspension arm was needed just because of a small indentation that had clearly been present for some time and had no signs of fracture.

 

My question is since he has rejected my claim of £1775 do I just now proceed through Small Claims Court or do I inform the company that I will be taking them through court.

 

My argument is that the part is aluminium and so any dent would weaken it causing it to eventually fail as it did 13 days later from when it went in for a service. The technician should have known that since the part is aluminium and a dent present it would need replacing as detailed in this link

 

https://www.knowyourparts.com/technical-resources/suspension/aluminum-suspension-component-service-tips/

 

which says -

 

INSPECTION -In most cases, an aluminum component is as strong or stronger than steel or cast iron. But what sets aluminum apart is how it fails. Most aluminum suspension components are extruded or forged, and in some cases, will be heat-treated. If a component has undergone extreme stress, such as a curb strike, the part will most likely crack and break instead of bend.

 

I would imagine that a judge will request an expert report aswell.