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Verso owner

Problem with 2006 Toyota Verso semiautomatic car

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Posted (edited)
14 hours ago, BankFodder said:

On one hand what you say sounds quite logical. However, you are inventing words into the statute.

Have you looked at the statute? Have you seen anything in the statute which supports what you say?

What you are saying is that the effect of the statue is vulnerable to manipulation by a dishonest customer. I think you're right.

Erm, I don't think I'm inventing words into the statute, in the CRA 2015 under chapter 2, section 9,10 and 11 it specifically mentions the terms "fit for purpose, as described and satisfactory quality" albeit I am shortening the exact wording for the purpose of writing a post in here.

 

I think what you are saying is correct and I haven't conveyed myself properly. You are correct that there is no severity when it comes to a defect, it's either a defect or it isn't.

 

What I was trying to point out, for the good of people coming here and seeking advice, is that it isn't as simple as demanding a repair or refund under the CRA for any old thing.

 

A defect has to first be confirmed as a defect, the only person who can do this with authority is of course a judge but I think people need to be aware when reading these kind of threads is that in all probability, a blown light bulb on a used vehicle isn't going to be classed as a defect in the first place.  A faulty windscreen wash motor on a 15 year old car, with 100,000 miles on, 4 months into ownership, isn't going to be a defect. A failed gearbox on a 4 year old vehicle with 50,000 miles on, will be.

 

Unless of course you consider that a 15 year old vehicle with 100,000 miles on, bought for £1000 has the same consideration under the CRA as a 2 year old vehicle with 20,000 miles on, bought for £15,000. If you do believe that, well, I'll wrap up and leave it there. I will just say though that the terms "fit for purpose, of satisfactory quality and as described" are written into the CRA for (among other things) the purposes of defining the difference between an old banger and nearly new car. The only person who can decide what constitutes a defect is the judge, on the day. 

 

 

Edited by Chuffnut
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11 hours ago, Chuffnut said:

Erm, I don't think I'm inventing words into the statute, in the CRA 2015 under chapter 2, section 9,10 and 11 it specifically mentions the terms "fit for purpose, as described and satisfactory quality" albeit I am shortening the exact wording for the purpose of writing a post in here.

 

I think what you are saying is correct and I haven't conveyed myself properly. You are correct that there is no severity when it comes to a defect, it's either a defect or it isn't.

 

What I was trying to point out, for the good of people coming here and seeking advice, is that it isn't as simple as demanding a repair or refund under the CRA for any old thing.

 

A defect has to first be confirmed as a defect, the only person who can do this with authority is of course a judge but I think people need to be aware when reading these kind of threads is that in all probability, a blown light bulb on a used vehicle isn't going to be classed as a defect in the first place.  A faulty windscreen wash motor on a 15 year old car, with 100,000 miles on, 4 months into ownership, isn't going to be a defect. A failed gearbox on a 4 year old vehicle with 50,000 miles on, will be.

 

Unless of course you consider that a 15 year old vehicle with 100,000 miles on, bought for £1000 has the same consideration under the CRA as a 2 year old vehicle with 20,000 miles on, bought for £15,000. If you do believe that, well, I'll wrap up and leave it there. I will just say though that the terms "fit for purpose, of satisfactory quality and as described" are written into the CRA for (among other things) the purposes of defining the difference between an old banger and nearly new car. The only person who can decide what constitutes a defect is the judge, on the day. 

 

 

 

Thank you. This is very helpful indeed. I've gone back and had another look at the statute and actually I find to my amazement that the word "defect" doesn't particularly appear in the statute in the way that I thought it did. I'm really quite embarrassed. I now realise that I might have taken the word from a summary on the Which? website - and certainly the notion of a "defect" seems to be generally used around the Internet when describing the short-term right to reject.

So having looked at it more carefully – which I probably should have done in the first place – I can see pretty well what you have said above that the short-term right to reject comes into play if the goods are not "satisfactory quality" in the first 30 days. However, section 9 of the Consumer Rights Act does make it clear that even a minor defect can produce a situation which is not of satisfactory quality. So it certainly is possible that a blown car bulb, for instance, – which is definitely a minor defect – could be quite sufficient to give rise to a right to reject the vehicle.

But it all depends whether one might say that the blown bulb means that the car is not of "satisfactory quality".

From there, we have to find out what "satisfactory quality" is. Satisfactory quality is the standard that a reasonable person would expect of the goods – taking into consideration the nature of the goods, the description, the price et cetera.

This really does mean then that the effect of "a defect" is subject to interpretation by a reasonable person.

So I think that you are completely right and I think I was wrong to say that the idea of a defect is so fixed.

I would certainly have thought that a reasonable person might not expect that a blown bulb in the first 30 days of ownership means that an entire vehicle is unsatisfactory. In fact that seems to me to be very unreasonable.

I must say I'm very pleased to have discovered this and I'm only sorry that I hadn't read it more closely earlier on but it certainly makes the whole statute much more palatable.

However, there is the second debate that has been going on on this forum and that is who has the burden of proof in respect to establishing that there is a defect. Is it the customer who has to prove that there was a defect? Or is it the seller who has to prove that there was no defect.

In respect of this question, I'm still completely convinced that in the first six months there is an assumption that any defect which occurs was present at the time of sale. On that basis then one has to decide whether that defect means that the goods were not of satisfactory quality. If the goods won't of satisfactory quality then it is clear that the purchaser has a right to reject the goods (after repair in the first six months).

However, once you decide that the goods were unsatisfactory, it is certainly clear that even if that defect did not undermine the purpose of the contract, it still entitles you to a right to reject – so there is a kind of halfway position on the effect of a "defect".

For instance, if some superexpensive sealed beam headlight on a new car or even a high-value second-hand car failed within the first 30 days it might well be that a court would accept that the vehicle was not of satisfactory quality. Apart from the value of replacing the headlight unit, it would also mean that the car was unlawful to drive. If you look at the effect of the defect from that point of view, then it might well be possible to persuade a court that the vehicle was not satisfactory.

As user Chuffnut has pointed out, it eventually becomes a matter for a decision by a judge


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44 minutes ago, BankFodder said:

 

Thank you. This is very helpful indeed. I've gone back and had another look at the statute and actually I find to my amazement that the word "defect" doesn't particularly appear in the statute in the way that I thought it did. I'm really quite embarrassed. I now realise that I might have taken the word from a summary on the Which? website - and certainly the notion of a "defect" seems to be generally used around the Internet when describing the short-term right to reject.

So having looked at it more carefully – which I probably should have done in the first place – I can see pretty well what you have said above that the short-term right to reject comes into play if the goods are not "satisfactory quality" in the first 30 days. However, section 9 of the Consumer Rights Act does make it clear that even a minor defect can produce a situation which is not of satisfactory quality. So it certainly is possible that a blown car bulb, for instance, – which is definitely a minor defect – could be quite sufficient to give rise to a right to reject the vehicle.

But it all depends whether one might say that the own bulb means that the car is not of "satisfactory quality".

From there, we have to find out what "satisfactory quality" is. Satisfactory quality is the standard that a reasonable person would expect of the goods – taking into consideration the nature of the goods, the description, the price et cetera.

This really does mean then that the effect of "a defect" is subject to interpretation by a reasonable person.

So I think that you are completely right and I think I was wrong to say that the idea of a defect is so fixed.

I would certainly have thought that a reasonable person might not expect that a blown bulb in the first 30 days of ownership means that an entire vehicle is unsatisfactory. In fact that seems to me to be very unreasonable.

I must say I'm very pleased to have discovered this and I'm only sorry that I hadn't read it more closely earlier on but it certainly makes the whole statute much more palatable.

However, there is the second debate that has been going on on this forum and that is who has the burden of proof in respect to establishing that there is a defect. Is it the customer who has to prove that there was a defect? Or is it the seller who has to prove that there was no defect.

In respect of this question, I'm still completely convinced that in the first six months there is an assumption that any defect which occurs was present at the time of sale. On that basis then one has to decide whether that defect means that the goods were not of satisfactory quality. If the goods won't of satisfactory quality then it is clear that the purchaser has a right to reject the goods (after repair in the first six months).

However, once you decide that the goods were satisfactory, it is certainly clear that even if that defect did not undermine the purpose of the contract, it still entitles you to a right to reject – so there is a kind of halfway position on the effect of a "defect".

For instance, if some superexpensive sealed beam headlight on a new car or even a high-value second-hand car failed within the first 30 days it might well be that a court would accept that the vehicle was not of satisfactory quality. Apart from the value of replacing the headlight unit, it would also mean that the car was unlawful to drive. If you look at the effect of the defect from that point of view, then it might well be possible to persuade a court that the vehicle was not satisfactory.

As user Chuffnut has pointed out, it eventually becomes a matter for a decision by a judge

Thank you for your candid post and it just shows that we all learn, every day. 

 

The bottom line is exactly as you have stated, it's down to the judge, on the day because "a reasonable person" can only be the person that makes the decision and that, ultimately, is the judge. However, I think most people could come to the conclusion that it's unreasonable to expect certain faults to render a car of unsatisfactory quality, logic and common sense would tell most people to not take a supplier to court over something so trivial as a blown light bulb on a used car.

 

You have also hit the nail on the head that a new car, or expensive used car, with expensive components (£200k 1 year old Ferrari's for example) would be of unsatisfactory quality on some faults that a 10 year old, £2000 car would not. Hence the statement in the statue under "goods of satisfactory quality" that refers to price paid. The price paid (and as such, age and mileage of vehicle) will reflect a judges decision on whether a fault, is actually really a fault, or just something to be expected of the nature of the goods.

 

With regards to the burden of proof, Reasonable Ron posted somewhere recently that the burden of proof always existed, it was present in the outgoing SOGA. If a customer wanted to return something, they had to prove the goods were faulty. This obviously protected the retailer from people buying something, making use of it, then returning it for no good reason. It also protected the consumer from goods being defective and the retailer washing his hands of the situation.

 

The reverse burden of proof exists in the CRA that the retailer has to prove the goods did conform to the contract, on the day of purchase. As cited in section 19, subsection 14 and 15 which states;

 

For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.


(15)Subsection (14) does not apply if—


(a)it is established that the goods did conform to the contract on that day, or


(b)its application is incompatible with the nature of the goods or with how they fail to conform to the contract.

 

There is a nuance to the 30 day short term right to reject. As it is such a powerful ally to the consumer, the reverse burden of proof does not exist under the short term right to reject. Should a consumer wish to reject the goods for a full refund they must prove the fault existed at the point the contract was made. This is to ensure fair play for the retailer so that the consumer could not just reject say a car, for a full refund, just because a light bulb blew. However if a gearbox went pop within 30 days it would be safe to say the fault existed at the time the contract was made, gearboxes rarely just let go.

 

So to summarise, the burden of proof rests with the consumer, it always has I believe. There is a reverse burden of proof in the event of a repair/price reduction where the onus is on the retailer, which exists for 6 months, as clarified in the statute above. The burden of proof then again rests with the consumer thereafter the 6 months, up to 6 years I believe.

 

Again, all of this is subject to ascertaining if the fault is actually a fault. Consumers cannot reject a vehicle for any old reason, or, more specifically, they can try but if it goes before a judge, it seems unlikely that the judge would consider a trivial matter such as a lightbulb popping (or indeed a tyre puncturing, a wiper blade smearing, a small thimble full of oil leaking every month) on a car of a certain age, mileage and price point, as grounds for rejection.

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Chuffnut - what do you think a judge would make of my issue then, based on your foregoing discussions about vehicle age/mileage/cost? 13 year old Toyota car (06 reg), low mileage (48K), one owner, FSH,  apparently in excellent condition, cost = £4K. Faulty auto gearbox - a fault which showed up after about 6 hours of driving. Would a "reasonable person" think that wasn't satisfactory quality?

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3 hours ago, Verso owner said:

Chuffnut - what do you think a judge would make of my issue then, based on your foregoing discussions about vehicle age/mileage/cost? 13 year old Toyota car (06 reg), low mileage (48K), one owner, FSH,  apparently in excellent condition, cost = £4K. Faulty auto gearbox - a fault which showed up after about 6 hours of driving. Would a "reasonable person" think that wasn't satisfactory quality?

It's just my opinion of course, however I'd say any reasonable person would expect a gearbox to last longer than 6 months, never mind 6 hours, on a car with low mileage and a price of £4k. You haven't bought new but you haven't exactly bought an old banger either. I'd agree with Bankfodder's assessment way back at the start of the thread that you have a better than 95% chance of being successful. It wouldn't take a lot to convince a judge that the fault was present when you bought the car. Good luck.

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That gearbox was a goner when you got it, no doubt about it.

Also because there's very little you can do to damage an automatic gearbox in 6 hours.

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Yes, I think that you probably have a two pronged approach. The judge will ask what a reasonable person would expect – and if the answer is that this falls below those standards, then it becomes a defect – and even though it is a minor defect, it then allows the purchaser to assert their first six months rights under the contract. After six months, the judge will also ask whether the defect undermined the purpose of the contract and that then provides an answer as to what remedy should be awarded in respect of the breach.

In respect of the first six months defect, the burden of proof rests upon the trader to show that the defect did not exist. After six months, then the question of when the defect arose is at large – but by and large if it can be said is not a satisfactory quality then I think that any examination of when the defect occurred is pretty well irrelevant.

I think the question of when the defect occurred will tend to become important when you start to look at the limits of the period of reasonable expectation. A £3000 £4000 vehicle which fails within the first six months – or even within the first 12 months is almost certainly not matched up to reason expectations. After all, what a reasonable person is going to expect to pay £4000 for a vehicle which maybe needs £1000 or more work on it even before 12 months use?

On the other hand, if the vehicle has lasted three or four years without a problem and suddenly this gearbox fault occurs then I'm sure that a lot of discussion will be focused on what is the reason a life expectancy of the vehicle of that age, price, description – and all the other circumstances – as required by the Act.


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Hopefully over the last week there has been a greater sense of acknowledgement about the rights surrounding the short term right to reject, burden of proof, definition of satisfactory quality etc etc.

 

This should result in a better quality of advice being provided in the future but for now I think it might be an idea to correct the slightly misleading information provided in the sticky at the top of the 'General Motoring Issues' section, particularly post #10 and the rather pointless argument that appears to have ensued.  The problem with it being a sticky could be that those seeking advice could regard this as the definitive version.

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Thank you Chuffnut, King12345 and BankFodder for your latest comments. The latest twist is that the dealer is saying that he will not accept the independent engineer's report because (a) I chose the independent engineer not them, and (b) the conclusion supports my case! I chose the engineer completely at random from the IAEA website, just someone who is geographically close to the dealer and to the Toyota garage and with whom I have absolutely no connection. An echo of that now infamous quotation  "he would say that wouldn't he"!

 

The irony is I wanted to have an independent report because I felt that the dealer (and possibly a judge) could argue that a report from the Toyota garage alone was indeed a case of "they would say that wouldn't they" because it would be in their interest to identify a long list of faults so as to maximise the amount they would earn from repairing the car!

 

The ingenuity of the dealer knows no end. They are sticking to their mantra that we damaged the car because we are not experienced in using the Toyota MMT system. I can see this going to court now if they do not refund. In a way it may be the best outcome, as we would be able to add on all the additional costs that this fiasco has cost us. My dilemma is what to do about the car itself. My friend is the legal owner and it is insured in his name, yet it will be sitting in the dealers compound until the matter is sorted. Does anyone have any comments to make about this?

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You have received your advice here and you now see the kind of dealer you are involved with. Have you send them a letter of claim? I've rather lost track. If you have sent a letter of claim already then simply issue the papers. If you haven't sent a letter of claim then do so and then issue the papers. I don't think you have any choice.

Keep the insurance in place to avoid any complications of the vehicle becoming damaged and then the dealer denying responsibility et cetera. Keep a careful note of all associated expenses


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In fact going back, I noticed that I suggested that you send a letter of claim on 6 April. I don't believe you have done it. Had you done that then you would be in a position to issue the court papers immediately. Instead, you now have to wait a further 14 days. What a shame.

Sending a letter of claim would not have committed you to anything but it least it would have gotten that necessary pre-action protocol stepped out of the way. You're falling into the trap of getting into protracted exchanges and the only person who benefits is the dealer.


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Moving forward is letter before court action and 14 days later mcol.

No ifs, no buts.

Should they reply to the lba saying that they already made their position clear and they won't refund, you would be saving some time.

This is shocking.

You went to a Toyota dealer and got stitched up, imagine how confident the little back street dealers must feel!

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3 hours ago, BankFodder said:

In fact going back, I noticed that I suggested that you send a letter of claim on 6 April. I don't believe you have done it. Had you done that then you would be in a position to issue the court papers immediately. Instead, you now have to wait a further 14 days. What a shame.

Sending a letter of claim would not have committed you to anything but it least it would have gotten that necessary pre-action protocol stepped out of the way. You're falling into the trap of getting into protracted exchanges and the only person who benefits is the dealer.

 

Yes, you did but I wanted to wait until we got the official reports as there was a point where I began to doubt myself, asking myself could we have accidentally damaged the MMT system after all? The dealer now has both reports and so there will be no protracted exchanges after tomorrow because if the dealer does not do the BACS transfer refund then, then we will start the court procedure.

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1 hour ago, king12345 said:

Moving forward is letter before court action and 14 days later mcol.

No ifs, no buts.

Should they reply to the lba saying that they already made their position clear and they won't refund, you would be saving some time.

This is shocking.

You went to a Toyota dealer and got stitched up, imagine how confident the little back street dealers must feel!

 

What is the lba please? I clicked on the link but there is no explanation of this abbreviation there?

I'm not sure if you have understood our problem - the car was bought from a small dealer who have done the stitching up, the Toyota garage just carried out the diagnosis of the problem and are not involved with the sale of the car or the refund.

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It means letter before action which is basically the same as a letter of claim or letter before claim.

I suggested on the 6th of April you should send them one


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