By Joanne Dunham ACIArb
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 covers faulty goods and the consumer’s negligence in continuing to use the goods when the defect had already become apparent.
The consumer purchased a carpet washer from the retailer’s online store. The relevant law in this case was the Consumer Rights Act 2015.
The consumer used the carpet washer the day after delivery to clean his carpet tiles. He was unhappy with the performance of the carpet washer as it appeared the machine had left ‘streaks’ through the pile. He made contact with the retailer that same day advising that the carpet washer had not in fact left ‘streaks’ but permanent ‘score’ marks and requested a collection and full refund. Photographs were requested of the damage and the retailer agreed to provide a full refund for the carpet washer, and also compensation for his damaged carpet tiles, upon presentation of a quotation.
A courier was organised to collect the carpet washer from him three days later. However, he elected to use the carpet washer again to clean a deep pile carpet in his living room. After a few minutes of use, he noticed clumps of carpet fluff being ejected from the carpet washer and, when he emptied the appliance, he found it was full of carpet fibres.
As the carpet washer had now ruined his flooring in two rooms, in addition to the full refund and compensation for the carpet tiles which had already been authorised by the retailer, he was requesting compensation for his deep pile carpet also.
The retailer rejected the consumer’s claim for his further losses and proceeded to arbitration.
My consideration in this matter was whether the retailer had any liability to provide compensation to replace the second damaged floor covering, in addition to the first.
The Consumer Rights Act 2015 states that goods must be ‘fit for purpose’, of ‘satisfactory quality’ and ‘as described’. If goods turn out to be faulty, due to a manufacturer’s fault, it means they are not of a ‘satisfactory quality’, which is a breach of the Act. In addition, the Act also provides that a consumer may exercise the ‘short term right to reject’ when goods are found to be faulty within the first 30 days of purchase/delivery, as was the case here. In exercising this right, the consumer is entitled to a full refund, and this was provided by the retailer. However, as a consequence of using the faulty goods, damage was caused to the consumer’s property and had it not been for the goods being faulty, the damage would not have occurred; therefore, the consumer would be entitled to compensation for those damages/losses.
The issue here was that when the consumer first used the carpet washer, and noted the issue with his carpet tiles, and indeed went on to make contact with the retailer to request a refund, he elected to proceed to use the carpet washer in a further room, thus causing further damage.
As the damage caused to the carpet tiles was sufficient to give the consumer cause to contact the retailer to request the refund (as effectively at this point he believed the carpet washer to be faulty), I considered that his decision to continue to use the carpet washer after this point amounted to contributory negligence.
In law, the affected party has a legal obligation to limit his/her losses and therefore I did not consider the retailer could be held liable for further damage caused as a result of the consumer using the faulty carpet washer after the point when the quality of the machine had been called into question.
As a consequence of my findings, the consumer was compensated for the damage to the carpet tiles only.