Onus on the consumer to prove Televison Fault.

Boggles

Hi

Was reading the Currys forum and came across this post from the Currys rep on the forum.

http://www.boards.ie/vbulletin/showpost.php?p=68227401&postcount=11

I was flabbergasted to say the least, when I read this point.

"What all of this means in essence is that the onus is on the buyer of the product to demonstrate that a fault occurring was present at the time of the purchase of the product. Outside of that we can of course repair the product but it would be on a chargeable basis."

The Rep is clearly stating that outside of their 12 month warranty or extened cover plans, if an item (in this case a television) was to develop a fault, it is down to the consumer by means of employing a third party technician to prove that the underlining fault existed at the time of purchase.

So my question, is what is stated correct and legal?

Because if so, I feel it is a complete game changer on how we give advice on this forum.

(Need to point out I'm not singling out the Rep of Currys, he seems a very decent chap, I will PM him that this thread exists)

Sponge Bob

Boggles wrote: »

So my question, is what is stated correct and legal?

Because if so, I feel it is a complete game changer on how we give advice on this forum.

(Need to point out I'm not singling out the Rep of Currys, he seems a very decent chap, I will PM him that this thread exists)

Ye olde 'reasonableness' test again. If the product develops a fault within a 'reasonable' time it should be fixed by the manufacturer.

One has much greater expectations of a plasma telly screen than of a cheap toaster that you may expect will go after 14 months...2 months out of warranty. So would a judge in the SCC of course.

The retailer will always try to get themselves out of the loop after 'their' warranty expires and will try to divert you to dealing direct with the manufacturer or their agent in Ireland.

So the answer is, it depends and they cannot hide behind a limited warranty in every case where in other cases they have a reasonable argument....like you could have sat on that MP3 player for example.

Boggles

Fully understand that an mp3 player can be dropped, sat on etc.

The example given is a television though, the assumption being it wasn't mistreated.

Currys stance is pretty concrete, if it is out of warranty and you cannot prove it was a fault that inherently existed at time of purchase, then they are not responsible for it.

Sponge Bob

Then you should win in the small claims court ....depending.

If it was a moving part say a power button that broke, they could argue it was rough handling. Hard one that.

If the screen dies it is evidently shoddy manufacturing, you should win.

They are betting on you going away and doing nothing and in many/most cases they win that bet. The SCC costs €15 and you may file the claim online if you have a receipt to prove you bought it there. Also note you are entitled to charge on top for your time wasted with the process when it should have been repaired.

Boggles

Keeping the SCC out of it for the time being.

I'd like the debate to focus more on currys view of consumer law in Ireland, the bit I posted seemed to have come from their legal department.

It's actually shockingly black and white.

No matter what the fault, if it is not in warranty, it is not their responsibility. Unless it was there from the start.

What surprised me most that their policy is, that you have to prove the fault was their at the time of purchase, which for me doesn't make much sense and in most cases IMO would be impossible.

It is the first time I have heard this.

axer

Yes, of course it is up to the buyer to prove that a fault exists in the product and to show reasonably that the product was not abused or misused. An independent technician would be able to give a report to that affect.

If there are no signs of misuse or abuse of the product then it can be assumed that the issue is due to a manufacturing fault.

Lets take the example if the customer walks into curry's with a broken TV and curry's point blanketly say "no" I am not fixing it which pretty much happened in this case. The next step really (lets pretend this is after the written letter to manager etc) is going to have to be the SCC at which you will have to show that there is a fault and that there are no signs of misuse or abuse of the product - this would most likely require a third party engineer to write it. I would however include the costs of the report in my claim via the SCC.

Curry's are just trying to sell insurance/cover plans and the idea that someone should have to purchase a 5 year coverplan to cover manufacturing faults is ludacris. They must be working with the strategy of making it difficult for anyone who does not have a cover plan to get redress outside of the manufacturers warranty period. It would put me off purchasing items in their stores as a result.

A friend of mine fixes tvs are regularly sees dry soldering joints as reasons why a part failed or a tv doesnt work - this is not misuse or abuse, it is bad soldering i.e. a manufacturering fault.

IMO it is much better to just stick with the sale of goods act when dealing with issues in Ireland since it is much stronger legislation than the EU directive and is much easier to understand.

Sponge Bob

That is how they train their staff all right, that itself is because they make so much money selling their 'coverplan' ehmmm 'insurance' or 'warranty' on top of the product. Given the contribution pseudo extended warranties make to their profit they will always talk down the manufacturers warranties to the point where the ignorant feel there is no such warranty...only coverplan.

BTW Coverplan in the UK had such a bad reputation that they renamed it Whateverhappens only last year.

The following items are EXCLUDED from Coverplan/Whateverhappens warranties .

Regularly replaced items/consumable items

• Built-in batteries
• Bulbs (Except bulbs used in rear projection TVs)
• Damage or breakdown due to flood, wind or other severe weather conditions
• The cost of repairing or replacing a product which fails because anyone neglects, abuses or misuses the product
• Any service or benefit where the Service Agreement has been suspended
• Inoperability of a product caused by withdrawal of services by a third party
• Protection for plasma, LCD or rear projection TVs, dishwashers, vacuum cleaners, cooking and laundry products if used for business
• Image retention on a plasma, LCD or rear projection TV.
• Theft, loss or consequential loss

Furthermore it is not a warranty nor is it insurance, it is a limited "service plan"

Extended warranties are not insurance, and are not really even warranties. Extended warranties are “service plans.” A service plan is a promise to perform or pay for certain repairs or services.

But everything hinges on reasonableness which is what courts concern themselves with ......irrespective of staff training policies.

Boggles

axer wrote: »

Yes, of course it is up to the buyer to prove that a fault exists in the product and to show reasonably that the product was not abused or misused.

I have never seen this in any documentation TBH.

Take the example of a television that is 14 months old, apart from a visual inspection of mis treatment what more can one do?

Also would it not void all rights if a repair man opened the tv?

Also Currys clearly state that the fault had to have existed at the time of purchase. Impossible in 99% of cases IMO.

jor el

Boggles wrote: »

I'd like the debate to focus more on currys view of consumer law in Ireland, the bit I posted seemed to have come from their legal department.

It's actually shockingly black and white.

They are allowed to take that stance, just like mobile phone shops insist on 3 repairs before offering a refund or replacement, but it doesn't mean that the consumer can't disagree, or exercise other options.

In the linked thread, they're talking about Directive 1999/44, which is separate to the Sale of Goods and Supply of Services Act 1980, which makes no mention of a 6 month period at which the consumer is "cut loose".

http://www.consumerconnect.ie/eng/Hot_Topics/FAQs/Faulty-goods/
Therefore you may, if the reasonable lifetime of a given product exceeds the time period of any warranty, pursue the seller in respect of your statutory rights - 'The Sale of Goods and Supply of Services Act, 1980'. If the trader refuses to offer redress for the faulty goods and you have exhausted all other options you may wish to pursue the matter with the Small Claims Court.

All we need to be concerned about, in my opinion, is reasonable lifetime, and what the court may interpret that to be. In the case of the linked thread, the TV was nearly 4 years old. In my opinion, that is at the edge of what you might expect to be reasonable. In terms of holding Currys fully liable for the repair/replacement cost, that certainly would not be reasonable. The user got almost 4 years of perfect use out of it, so proving it was a manufacturing defect as opposed to user abuse, is reasonable of Currys to ask.

Sponge Bob

jor el wrote: »

In the case of the linked thread, the TV was nearly 4 years old. In my opinion, that is at the edge of what you might expect to be reasonable.

I would agree, I would agree about a toaster at 14 months and a cheap mobile phone at 24 months or a washing machine belt at 30 months for the same reason.

In terms of holding Currys fully liable for the repair/replacement cost, that certainly would not be reasonable. The user got almost 4 years of perfect use out of it, so proving it was a manufacturing defect as opposed to user abuse, is reasonable of Currys to ask.

And they fixed it when they got a third party opinion but did not pay for the opinion. In the SCC they could have paid to fix it and paid for the opinion and other costs.

You may have rights in Ireland, like the right to free hospital care for all, but ya still gotta fight for them

axer

Boggles wrote: »

I have never seen this in any documentation TBH.

Yes, there is nothing about this in consumer law which is my point - I said that it is up to the buyer to just show that a fault exists and that there is no evidence of misuse or abuse of the product (an expert can help with this).

It comes across that curry's are making it very black and white for the consumer but in reality if you can show that the product is faulty and it was not misused or abused then you have a case for a manufacturing fault - its not as black and white as curry's are making it out to be because it is not specifically cover in consumer law who must prove what - at the end of the day you will have to show a judge that there is no evidence for misuse or abuse of the product but yet it is faulty. You dont have to prove anything to curry's.

Boggles wrote: »

Take the example of a television that is 14 months old, apart from a visual inspection of mis treatment what more can one do?

A visual inspection would show no forceful damage and then an electronic engineer/repair person should be able to see where the damage came from and how it was mostly likely caused in their opinion.

Boggles wrote: »

Also would it not void all rights if a repair man opened the tv?

It wouldnt as long as they are certified i.e. a professional.

Boggles wrote: »

Also Currys clearly state that the fault had to have existed at the time of purchase. Impossible in 99% of cases IMO.

Thats where they are trying to put the black and white into this. "Existed at the time of purchase" is not black and white since a part may only show up after 2-3 years as being faulty - the fault existed at the time of purchase alright but the symptoms for the fault manifested later so there was no way of the consumer knowing that the fault existed. Again, they are just trying to sell insurance.

Boggles

axer wrote: »

Yes, there is nothing about this in consumer law which is my point - I said that it is up to the buyer to just show that a fault exists and that there is no evidence of misuse or abuse of the product (an expert can help with this).

Surely it is up to the seller to prove if a product was mistreated or if a fault exists and not the consumer?

E.g. Mobile phone companies liberally telling people warranty is gone because of water damage.

Elessar

Boggles wrote: »

Hi

Was reading the Currys forum and came across this post from the Currys rep on the forum.

http://www.boards.ie/vbulletin/showpost.php?p=68227401&postcount=11

I was flabbergasted to say the least, when I read this point.

"What all of this means in essence is that the onus is on the buyer of the product to demonstrate that a fault occurring was present at the time of the purchase of the product. Outside of that we can of course repair the product but it would be on a chargeable basis."

The Rep is clearly stating that outside of their 12 month warranty or extened cover plans, if an item (in this case a television) was to develop a fault, it is down to the consumer by means of employing a third party technician to prove that the underlining fault existed at the time of purchase.

So my question, is what is stated correct and legal?

Because if so, I feel it is a complete game changer on how we give advice on this forum.

(Need to point out I'm not singling out the Rep of Currys, he seems a very decent chap, I will PM him that this thread exists)

This is not correct.

What the Currys rep and his legal advisor mentioned is the EU Directive 1999/44, not the Irish Sale of Goods and Supply of Services Act 1980. If you actually read the statute for the EU directive, it explicitly states that the directive is in addition to and not a replacement of existing rights and that the consumer has a right to invoke local legislation if the power provided is greater than that of the directive - which is exactly what the sale of goods act is.

I'm reading through it and the act does not specifically state that any onus is on the consumer to prove any fault was there at the time of sale - only for the fault to be there. The 6 month liability clause also has no standing in Irish law. Goods must be "of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought and as durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances, and any reference in this Act to unmerchantable goods shall be construed accordingly." Reasonable is the key word here and the ultimate decision rests with a judge at the small claims court.

I would like to hear what the Currys "expert" has to say about the sale of goods act. In essence what he says about the EU directive is correct, but Irish consumers do not have to invoke it, and can instead invoke the greater protection offered by the Sale of Goods and Supply of Services Act 1980.

axer

Boggles wrote: »

Surely it is up to the seller to prove if a product was mistreated or if a fault exists and not the consumer?

E.g. Mobile phone companies liberally telling people warranty is gone because of water damage.

It is the buyer that is making a claim of breach of contract thus the buyer needs to prove that the breach occurred. The onus is not on the seller to show that the breach occurred - they can defend themselves to show it has occurred but they do not have to provide the initial evidence.

busman

jor el wrote: »

All we need to be concerned about, in my opinion, is reasonable lifetime, and what the court may interpret that to be.

In my option a very simple solution would be to make the manufacture list what they expect the reasonable lifetimeof the product would be!

I know that they would never volunteer this information and some law compelling them would be required!

Would simply this sort of problem!

foggy_lad

So I walk into currys with my 46" under my arm and plug it in and turn it on and nothing happens, I have shown them there is a fault and make claim that it is a fault covered by my statutory rights. Also smyth's toys have already tried this nonsense when dealing with Sony playstations that were being returned en masse last year. They are just trying it on to get out of their obligations of repair replace or refund!

Boggles

axer wrote: »

It is the buyer that is making a claim of breach of contract thus the buyer needs to prove that the breach occurred. The onus is not on the seller to show that the breach occurred - they can defend themselves to show it has occurred but they do not have to provide the initial evidence.

Are you serious?

I walk into a store with a broken item.

They can legally tell me they will not accept the item back until I bring in an independent "registered" engineers report?

foggy_lad

Boggles wrote: »

Are you serious?

I walk into a store with a broken item.

They can legally tell me they will not accept the item back until I bring in an independent "registered" engineers report?

if you walk into the shop with the broken(non-working as opposed to smashed to peices) item the shop are obliged to provide after sales care which is supposed to be reasonable and take the form of repair replace or refund but it is dependant on what is considered reasonable by both parties and if they cant agree than €15 will get a small claims court clerk or judge to sort it out.

so if you were to refuse a repair on a television that is faulty after a few months that can be considered unreasonable but if the shop refuses any help and washes their hands of the item that would be wholly unreasonable as they are obliged to stand over the products they sell.

Elessar

Boggles wrote: »

Are you serious?

I walk into a store with a broken item.

They can legally tell me they will not accept the item back until I bring in an independent "registered" engineers report?

Nope, look at what I posted earlier in the thread - there is no requirement under Irish law for that. They cannot refuse to honour their responsibilities under the Sale of Goods act because you don't have a report. Of course, I'm sure it would go a long way in your favour with a judge, but there is no stipulation to have it.

The Currys Rep has not responded with his company's stance on the irish act.

Currys PC World: Declan

Boggles, thanks for the invitation to come onto this thread and comment.

The issue of warranty times and repairs out of warranty has come up a number of times since we've set up our forum, and I'm glad it has. We find this an area where there is substantial confusion amongst customers, colleagues in stores, members of the public - there are many different views and we can and do end up in situations in stores where people can be quite aggressive in asserting rights which they don't have. Not good for customers and very difficult for store personnel to deal with.

And I'm no expert in this area either. Hence why I took the issue when it came up in previous threads to what we call our Head of Business Standards in our Group headquarters. This chap is based in the UK and has a European remit, so his views are valid for Ireland.

What was quoted in the link is our view. It's not a stance, it's simply a quote of what the law is and what our obligations are under it. We're not trying to flabbergast you or anybody, we want to do the right thing and uphold all responsibilites we have to Irish and indeed any customers.

What I'm seeing in this thread is a challenge based around the Sale of Goods and Supply of Services Act as it exists in Irish law. The logical thing to do now is to return to my Business standards head and also talk to our Irish lawyers to ensure that what is outlined here is fully compliant with our obligations to consumers in Ireland under Irish law.

Elessar

Thanks for replying Declan.

For further clarification, I would draw your attention to the irish statutory instrument no 11 of 2003 - http://www.irishstatutebook.ie/2003/en/si/0011.html - which gives effect to the European Directive 1999/44/EC your legal advisor mentioned.

Specifically Paragraph 3 (2):

In particular, Regulation 4 is in addition to, and not in substitution for, a provision of any other enactment that provides that a consumer shall not be deprived, by virtue of a choice of the kind mentioned in that Regulation, of the protection afforded by any enactment.

and more specifically paragraph 3 (4)

In a case where the level of protection for the consumer afforded by a particular provision of any other enactment is greater than that afforded by a particular provision of these Regulations, or to the extent that the invocation of a latter such provision by the consumer would diminish the first-mentioned level of protection for him or her —

(a) the consumer may opt to invoke the particular provision of that other enactment to the exclusion of the other provision of these Regulations, and

(b) that other provision of these Regulations may be invoked, and shall be construed and operate so as to be capable of being invoked, by the consumer in a manner that does not diminish the first-mentioned level of protection for him or her

Currys PC World: Declan

Elessar wrote: »

Thanks for replying Declan.

For further clarification, I would draw your attention to the irish statutory instrument no 11 of 2003 - http://www.irishstatutebook.ie/2003/en/si/0011.html - which gives effect to the European Directive 1999/44/EC your legal advisor mentioned.

Specifically Paragraph 3 (2):



and more specifically paragraph 3 (4)

Thanks. It's clearly a complex area and I look forward to getting into in in depth

Boggles

Thanks for Replying on thread Declan, very decent of you.

I look forward to any clarity we achieve on the issues raised.

Del2005

busman wrote: »

In my option a very simple solution would be to make the manufacture list what they expect the reasonable lifetimeof the product would be!

I know that they would never volunteer this information and some law compelling them would be required!

Would simply this sort of problem!

I bought a TV and it said it had a 10,000 hour lifetime in the manual. That's well over a year of 24/7 viewing.

But the issue is that if the manufactures are forced to stand over lifetime claims they will say they expect the item to only last a year or less.

We're then back to original point. If I pay several hundred Euro for something I'd expect it to last longer then a year, I used that point to get a 19 month old phone fixed for free.

foggy_lad

Currys: Declan wrote: »

And I'm no expert in this area either. Hence why I took the issue when it came up in previous threads to what we call our Head of Business Standards in our Group headquarters. This chap is based in the UK and has a European remit, so his views are valid for Ireland.



What I'm seeing in this thread is a challenge based around the Sale of Goods and Supply of Services Act as it exists in Irish law. The logical thing to do now is to return to my Business standards head and also talk to our Irish lawyers to ensure that what is outlined here is fully compliant with our obligations to consumers in Ireland under Irish law.

your head of business standards should really know that english lconsumer law does not apply to irish consumers, the obligation under irish law is for retailers to basically stand over what they sell and provide a repair replace or refund for a reasonable timeframe given the cost of the goods quality of materials and the intended use.

any television costing €700-€900 or more should with care and general cleaning as per the instruction manuals last a reasonable 5-8years or even more. i currently have a television that is over 30 years old and works perfectly and has never broken or needed any repair. but obviously where there are children and the latest generation of young adults who seem to have less respect for property then customer damage is going to be seen a lot more and is not covered by consumers statutory rights but the burdon of proof still lies with the shop/retailer to prove customer damage.

Scambuster

Retailers will of course push this sort of view but the courts will nearly always see it differently. Personally, I just don't bother wasting my time arguing with retailers. Just a cursory "tv broke, fix or refund. No. Ok bye" and then lodge a claim with the SCC.

axer

Boggles wrote: »

Are you serious?

I walk into a store with a broken item.

They can legally tell me they will not accept the item back until I bring in an independent "registered" engineers report?

Most reasonable shops won't make you do that. A reasonable shop would make a quick inspection of the item and if there is no obvious sign that the buyer misused or abused the product they will send it to their repair department for a more indept examination. If the repair department can see the issue was caused by misuse or abuse of the product then they can refuse to repair it as there is no breach of contract then but if there is no evidence of such then they would be obliged to remedy the breach of contract (of course you have the right to challenge that decision by way of an indendant engineers report and/or the courts system).

The shop can refuse to take a TV on the grounds that they claim you misused or abused the product. If that happens it means that negotiations outside of invoking your legal rights have failed thus you must take it to the small claims court but for which you might need an engineers report as proof that the issue was not caused by misuse or abuse (if that is what the shop are suggesting).

From what I can see Curry's purposefully try to make life difficult for people that don't buy their insurance package probably because most people would not go further with the claim and because they want to keep the insurance revenue stream high.

Currys: Declan wrote: »

A part was replaced. What the independent report could not attest to was as to whether this was an inherent issue or whether it was usage related. Neither could our own repair people although the bias was to the latter. With the OP a coverplan customer, albeit expired, the decent service thing to do was to repair the unit. I would probably not have authorised the repair under other circumstances.

This shows how difficult Curry's are being. From what I can see here even though they could not find evidence of misuse or abuse causing the issue they still decided that that it was. I'm glad I know this now. I hope other large retailers are not this bad.

Boggles

As good timing would have it, I was speaking with a friend of mine at the weekend who experienced first hand Currys procedure with warranty repairs.

Her television of 2 years purchased for €650 euro refused to switch on. It wasn't abused, mistreated, etc. It had actually very moderate use, analogue TV only.

She immediately brought it back in store, where she was to put it mildly shocked at the response.

Speaking with the manager she was informed that Currys were not obliged to fix the television as it was out of warranty. They would take the TV from her, but it would cost €120 just to look at it, this did not include the cost of any repair.

Of course she mentioned her statutory rights,. which was met with a polite smile and some strange advice, she should take it to a local repair man, as he would probably be alot cheaper.

The manager was more than nice, and seemed to be reading from the Currys hymn sheet, she mentioned her rights again, but it was a flat out no. No point arguing or making a scene, she knows her rights so she is going down the only route left open to her.

Currys: Declan wrote: »

The issue of warranty times and repairs out of warranty has come up a number of times since we've set up our forum, and I'm glad it has. We find this an area where there is substantial confusion amongst customers, colleagues in stores, members of the public - there are many different views and we can and do end up in situations in stores where people can be quite aggressive in asserting rights which they don't have. Not good for customers and very difficult for store personnel to deal with.

Declan, the case above illustrates that the confusion over warranty and irish consumer rights largely stem from Currys and Currys staff.

It seems the advice you have been getting from your law department is misguided, at it heavily backs European Directive 1999/44/EC and seems to ignore the Sale of Goods and Supply of Services Act, 1980, which supersedes it.

I know Currys are under no obligation to inform anyone of their consumer rights, but this lady tried to assert her rights and was fobbed off.

Currys have been present in Ireland for a long time, I find it hard to believe that warranty issues havn't been flagged before and a clear process of redress outlined.

My question really is Declan and I know you are going to talk with your Irish legal department, will be see a level of transparency when it comes to your stores and consumer rights within this state?

Because right now your policy forces everyone down the legal route.

Groucho2000

Boggles wrote: »

Because right now your policy forces everyone down the legal route.

I would think it probably makes 9 out 10 people give up and just pay to get it fixed. Most would not want the hastle or do not know their rights so take the shops word for it.

watty

I was in Tesco today and I asked about bringing stuff back that doesn't work.

She said 28 days.

When I pointed out the error in this, she admitted that they have to ring Head office and Head Office always gives a refund.

But their instruction is to fob people off with the 28 days and hope they know no better.

Boggles

Groucho2000 wrote: »

I would think it probably makes 9 out 10 people give up and just pay to get it fixed. Most would not want the hastle or do not know their rights so take the shops word for it.

Actually recent research would suggest Irish people are very clued up on their rights ( from my experience they have no choice).

http://www.consumerconnect.ie/eng/News_+_Research/Press%20Releases/consumer-empowerment-research-Oct-2010.html