Faulty shower, lost small claim

Benny1114

Thanks for all the comments so far, guys. I really am appreciative of these.

I felt that I followed protocol as letters were exchanged over a two month period and I did make it clear to him that I felt I was giving the seller ample opportunity to resolve the situation amicably; it was only as it dragged on that I began to mention legal action and my fourth and final letter gave the seller seven days in which to act before I submitted a claim form.

I would certainly have been better asking for opinions on here first; I can't deny that! It was with regret that I felt compelled to take action but, as a customer of this seller for over 20 years, I felt very disappointed that he would not be accommodating. I am still not happy that a shower unit costing £270 must be accepted as satisfactory if it goes wrong in just over two years and that the effect of this is that a shower is likely to need to be changed every two years. But maybe I just have to accept this. I know this is not relevant to this particluar issue but, on a wider scale, I do not like the way customers are treated these days and are expected to accept substandard products and/or service.

I live in a hard water area; and I have always accepted that. I don't think this has changed in the last two years and the fact that only this particular appliance has had such a short lifespan compared to the previous shower and current appliances suggested to me that this was not the issue.

arcon5

You could of course get some proof and pursue the case again (as far as I know this is not disallowed). Although bear in mind any refund can take in to consideration the time you've had it. Whether it's worth it or not is up to you.

thescouselander

I agree with the Judge - you didn't prove there was an inherent fault with the shower. Here's something that might help though. When our shower suffered a similar demise I took it to bits to have a look at how it failed - the result was this:



As you can see the element is well scaled up which causes bits of detritus to fall off and block the shower head. Now this is after about 6 years use so I'm not unhappy about the service life I got. What you should have done is examined your dead shower and established the reason why it might have scaled up so quickly and the rate of scaling up was unreasonable. This would probably require a good amount of analysis so if you cant do it yourself it might have been worth getting an engineer's report.

These things are easily fixed though - it probably would have been easier just to get a new can off shower doctor or somewhere similar, they're usually only about £15 or £20.

unholyangel

Benny1114 wrote: »

Thanks for all the comments so far, guys. I really am appreciative of these.

I felt that I followed protocol as letters were exchanged over a two month period and I did make it clear to him that I felt I was giving the seller ample opportunity to resolve the situation amicably; it was only as it dragged on that I began to mention legal action and my fourth and final letter gave the seller seven days in which to act before I submitted a claim form.

I would certainly have been better asking for opinions on here first; I can't deny that! It was with regret that I felt compelled to take action but, as a customer of this seller for over 20 years, I felt very disappointed that he would not be accommodating. I am still not happy that a shower unit costing £270 must be accepted as satisfactory if it goes wrong in just over two years and that the effect of this is that a shower is likely to need to be changed every two years. But maybe I just have to accept this. I know this is not relevant to this particluar issue but, on a wider scale, I do not like the way customers are treated these days and are expected to accept substandard products and/or service.

I live in a hard water area; and I have always accepted that. I don't think this has changed in the last two years and the fact that only this particular appliance has had such a short lifespan compared to the previous shower and current appliances suggested to me that this was not the issue.

I think you're perhaps missing the point. An item failing after 2 years use does not automatically mean it was of unsatisfactory quality. It depends why it failed. The retailer cannot be held responsible for natural wear n tear/customer misuse.

My washing machine is currently 11 years old, cooker is 30 years old. I've been tempted to replace them dozens of times because they dont match the rest of my kitchen. The reason I havent is because its sods law that any replacement wont last as long.

If I did replace the washing machine and it failed after 4 years......do you think the fact that my previous one lasted 11 years has any bearing on that? It doesnt. I just got lucky with my old (current) one (touch wood), just as perhaps you got lucky with your old shower.


If you want to hold the retailer responsible, you need to prove that the fault is inherent (on the balance of probabilities).....it is not enough to simply prove that there is a fault. And until you prove the fault is inherent...the retailer is under no obligation to do anything.

Equaliser123

I think the OP has been unfortunate. SOGA requires "durability" - it was introduced in 1994 (or 1998, I can't remember which as it is a Friday night...) and was not in the 1979 Act.

Most District Judges would actually have allowed the claim in my experience.

The point regarding the 6 months period is interesting. It does not require expert evidence (indeed Small Claims discourages this) but does put the burden of proof on the part of the claimant.

As I said, I'm surprised and wonder what evidence was put forward by the Defendants.

unholyangel

Equaliser123 wrote: »

I think the OP has been unfortunate. SOGA requires "durability" - it was introduced in 1994 (or 1998, I can't remember which as it is a Friday night...) and was not in the 1979 Act.

Most District Judges would actually have allowed the claim in my experience.

The point regarding the 6 months period is interesting. It does not require expert evidence (indeed Small Claims discourages this) but does put the burden of proof on the part of the claimant.

As I said, I'm surprised and wonder what evidence was put forward by the Defendants.

I was wondering if perhaps the judge has taken the view that it scaling up after 2 years might be wear n tear? Or perhaps down to a change in the water rather than a fault with the showerhead?

IMO theres nothing to suggest on the balance of probabilities that it was inherent as opposed to wear n tear/misuse (such as not descaling it regularly).

Benny1114

unholyangel wrote: »

I was wondering if perhaps the judge has taken the view that it scaling up after 2 years might be wear n tear? Or perhaps down to a change in the water rather than a fault with the showerhead?

IMO theres nothing to suggest on the balance of probabilities that it was inherent as opposed to wear n tear/misuse (such as not descaling it regularly).

I think this is the view that the District Judge has taken, unholyangel. As stated, I was hoping that the durability of the previous shower would be evidence that suggested there was an inherent fault with the present one, though I accept that this may have been a tenuous argument.

If I did replace the washing machine and it failed after 4 years......do you think the fact that my previous one lasted 11 years has any bearing on that? It doesnt. I just got lucky with my old (current) one (touch wood), just as perhaps you got lucky with your old shower.

I take this point, unholyangel, but surely the converse is also arguable; i.e. that the previous shower lasted a reasonable length of time and we were "unlucky" with the new shower? If so, being "unlucky" is this way does not necessarily mean the prodcut was satisfactory from the perspective of durability.

Most District Judges would actually have allowed the claim in my experience.

The point regarding the 6 months period is interesting. It does not require expert evidence (indeed Small Claims discourages this) but does put the burden of proof on the part of the claimant.

As I said, I'm surprised and wonder what evidence was put forward by the Defendants.

Thanks for your input, Equalizer123. Maybe I got an unsympathetic judge?

Clearly, where I fell down is that I could not establish an inherent fault, as has been pointed out by other posters. And I concede that they are right about this, at least I could not establish it to the satisfaction of the judge.

The evidence put forward by the Defendant was that his engineer had looked and the shower and concluded it was "scaled up".

The District Judge did say, after the hearing, that he and his colleagues get to know about the "rogue" tradespeople and that this particular defendant had never come before him. I am sure, though, that this was not a consideration in his reaching of his decision. I would be fibbing if I said I couldn't appreciate the situation from the Defendant's perspective; I can. But I am still not happy with a shower lasting just over two years with only two responsible people in the property. But...you win some, you lose some.

arcon5

Equaliser123 wrote: »

I think the OP has been unfortunate. SOGA requires "durability" - it was introduced in 1994 (or 1998, I can't remember which as it is a Friday night...) and was not in the 1979 Act.

Most District Judges would actually have allowed the claim in my experience.

The point regarding the 6 months period is interesting. It does not require expert evidence (indeed Small Claims discourages this) but does put the burden of proof on the part of the claimant.

As I said, I'm surprised and wonder what evidence was put forward by the Defendants.

Really? Despite op not providing any kind of evidence, expert or not, to support the argument that the goods are not as durable as a reasonable person would expect, you would have expected judgement in ops favor?

IMO I think judgement in ops favor could open the flood gates to baseless claims, with companies now worried they will be found against over issues which could be the result of wear & tear.

dalesrider

Benny1114 wrote: »

Well, I did quote the SOG Act. I used s14 (2) and referred to the requirement for "satisfactory" quality. s 14 (2) emphasises that the "price" is to be considered and also that factors such as "safety" and "durability" are relevant in determining whether or not there is a breach of s14 (2). I made strong representations on these matters and how they applied to this product..

I think that this is part of the problem.
People go in firing off parts of the regulations and not providing proof of the actual issue.

I wonder if part of the problem is now showers run which much higher Kw, as such may then be more suspect to scalling up as the actual heating area is maybe smaller. As such once it starts to scale that are builds up a lot quicker.

Would be interesting to pull a old 6Kw shower apart and compare it to say a 9Kw one. To see how the actual heating area compares.

Looksguywalker

arcon5 wrote: »

Really? Despite op not providing any kind of evidence, expert or not, to support the argument that the goods are not as durable as a reasonable person would expect, you would have expected judgement in ops favor?

IMO I think judgement in ops favor could open the flood gates to baseless claims, with companies now worried they will be found against over issues which could be the result of wear & tear.

You need to be very, very careful. Your advice is generally good, but on occasions can be woeful to be honest.