By Joanne Dunham ACIArb
How I approach arbitration awards
When writing an arbitration, it is incumbent on me to ensure that full consideration is given to all submissions, in order to afford the parties every opportunity to present their case concisely, and to the best of their abilities. Each arbitration is approached in a meticulous fashion, with the starting point determining: i) the crux of the complaint; ii) the desired resolution; iii) the relevant laws (and their application); iv) the burden of proof; v) evidence (or balance of probability, in its absence); and vi) available remedy.
I must also consider that many consumers may not have any knowledge of legal process and, therefore, in order that they are not unfairly prejudiced, within my remit as Arbitrator I am able to pose further questions of both parties, or make recommendations/suggestions for further evidence, where I deem fit. Indeed, the Consumer Rights Act 2015 (the current law protecting the interests of consumers), provides that where there is a lack of clarity, the consumer should be given the ‘benefit of the doubt’.
I should also clarify that the fact that the Arbitrator finds in favour of one party, does not imply that the other party is telling an untruth – it merely means that the evidence and submissions of the successful party are preferred.
The following case study highlights issues with personal injury.
The consumer purchased two packs of hair dye from a supermarket, and brought her claim against the manufacturer of the goods. The relevant law in this case was the Consumer Protection Act 1987.
The consumer had used this particular brand of hair dye many times in the past, and so she was familiar with the procedure of preparation and application. She mixed up and applied the first pack of dye to the front of her hair, followed by the second pack to the back of her hair. She noticed the first pack looked darker than usual and so she immediately washed it out.
She checked both boxes and they were identical. However, upon looking at the tubes of dye, she noticed that although the boxes were exactly the same, the tubes themselves were different shades. She had also noted that one of the boxes was unsealed prior to application.
She made contact with the manufacturer, asking for advice. The manufacturer responded, requesting proof of purchase, along with photographs and details of application etc. She was advised to use a clarifying shampoo a few times per week, which would remove the dark tones, and that she should not dye her hair again for approximately four to six weeks. She was also advised to check the colourant inside the box was correct.
The consumer was disappointed that the manufacturer only offered her a refund/voucher to cover the cost of the goods, plus a few other items from its range, and was seeking the sum of £3,000.00 compensation. In support of her claim, she advised that her self-confidence had been shattered as her hair was brittle and falling out, and she had to wear a hat until her hair was back to normal. Whilst she provided several photographs of her hair, these did not necessarily assist me in establishing the cause.
The consumer had advised that she very regularly dyed her hair, and had used this particular brand for more than a year. The manufacturer asked the consumer the last time she had applied a hair dye; The significance being that four to six weeks should be left between applications. The consumer failed to address the manufacturer’s request for information and never provided a response.
When considering this case, the issues for me to decide were whether the manufacturer had any liability under the Consumer Protection Act 1987 (as manufacturer, and not retailer) and, if so, what remedy (if any) the consumer was entitled to.
Under the Consumer Protection Act, a consumer has the right to pursue a claim against the manufacturer of goods if the goods are defective and such defect causes damage, death, or injury. The key characteristics of the CPA for consideration in this matter were: i) anyone who suffers damage as a result of defects in goods is entitled to claim, not just whoever purchased the product; and ii) a product is defective if the safety of the product is not as you would generally expect, and how the product would reasonably be expected to be used.
However, a manufacturer will have no liability under the CPA if they can prove: i) the product was not defective when it was supplied; ii) fair wear and tear caused the damage; iii) the consumer had disregarded the instructions or warnings, which led to the damage reported; iv) the consumer had used the product in such a way which resulted in the damage; v) the product was as safe as a person could generally be entitled to expect, taking into account its nature and presentation; and vi) the manufacturer could not have been expected to know about the defect (given the scientific and technical knowledge around at the time the product was made).
In accordance with the CPA, the consumer had the Burden of Proof (obligation of proving the case), and therefore the onus was on her to prove that she suffered damage/injury as a result of using the goods, and it was not for the manufacturer to disprove it.
After careful consideration of the evidence before me, I was not satisfied that the consumer had proven sufficiently that the goods had caused the damage to her hair. Given the amount claimed, I would have expected the consumer to commission an independent expert report (such as from a trichologist, or other industry professional), explaining why the use of a particular colour of dye could have caused the hair breakage/loss.
Notwithstanding my findings, the consumer herself volunteered the fact that the seal on the package was broken prior to application and this in itself provided the manufacturer with a defence under the CPA, as an inference could be made that the goods had been tampered with and that they were not in the same condition as they were when leaving the manufacturer’s warehouse.
Whilst the consumer’s claim against the manufacturer failed, she was at liberty to pursue a claim against the retailer of the goods under the Consumer Rights Act 2015.