Burden of Proof

Biffa14

Hi, I new so if this has been posted before a number of times please accept my apologies.

I have just bought a TV (28/11/15) and received on 01/12/2015 which when I opened the goods I found it had a broken screen.

I opened the goods on Christmas Eve because the TV was bought as a family Christmas present and there was no physical signs of any damage to the exterior of the box. I wrote to the retailer on Christmas Eve, rejecting the goods and requesting a replacement.

I am aware that I am within the legal timeframe to reject faulty goods but in pursuing my claim the retailer is requesting that I prove that the goods were delivered in this condition.

I have just read the article: Consumer Rights "Give me my money back!" on the main MSE site:

moneysavingexpert.com/shopping/consumer-rights-refunds-exchange

(unfortunately as a new user I am unable to post with links)

The article covers the subject of burden of proof"

"What proof do you need?

When goods are faulty, if you return them within six months, then it's up to the shop to prove they weren't faulty when you bought them. After this, the burden of proof shifts and it's up to you to prove they were faulty when you bought them."

However I cannot any other internet resource (e.g. Which website etc.) backing this up.

Is this relevant or should I just keep going down the line of the 30 days to reject faulty goods?

Any help gratefully received.

JayCartwright

If it went to court it would be civil so the the burden of prove would be on the balance of probability.

51% or in the works of Judge Rinder, so they are more sure than not.

Biffa14

Hi Jay,


Thanks for the quick response but I am not sure I fully understand. This case is not yet at the court proceedings stage but I would like to rebut the retailers request that I prove that the goods were damaged on receipt.


How should the law be interpreted?

JayCartwright

Well you have your evidence, which will either prove or disprove your case.

What have you got?

Biffa14

This is the complexity of the case Jay, hence why I reach out to MSE.


I believe the goods were damaged in transit, and there is some physical evidence within the box (not externally) to support this but the retailers position is that they will not entertain claims for damage in transit after 7 days. However I am not a forensic scientist so I cannot be 100% sure.


What I would really like to do is state my consumer rights (which I have) and request that they demonstrate that they were damaged by me (which they were not) and not damaged a some point in the supply chain (which I suspect they can't).


Hence why I ask where the burden of proof lies.

PCMcGarry

Well how do you read this?

The Consumer Rights Act 2015 changed our right to reject something faulty, and be entitled to a full refund in most cases, from a reasonable time to a fixed period (in most cases) of 30 days. After that, you lose the short-term right to reject the goods and you'll have fewer rights, such as only being able to ask for a repair or replacement, or a partial refund if this doesn’t work.

When goods are faulty, if you return them within six months, then it's up to the shop to prove they weren't faulty when you bought them. After this, the burden of proof shifts and it's up to you to prove they were faulty when you bought them.

I'd say reject the good within 30 days and they'd have to prove you cared the fault.

zoob

Hi, was the screen damage noticeable as soon as you removed it from the box.

System

People like to read these things from only one side. Both sides have rights. You do not have either 30 days or six months to say "it's smashed to bits, it arrived like this, prove otherwise, I know my rights!!!" Six months of free accidental damage insurance on every purchase, that would be insane wouldn't it?

Here is what the law says about burden of proof...

(3)If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11, 13 and 14, or if they do not conform to the contract under section 16, the consumer’s rights (and the provisions about them and when they are available) are—

(a)the short-term right to reject (sections 20 and 22);
(b)the right to repair or replacement (section 23); and
(c)the right to a price reduction or the final right to reject (sections 20 and 24).

(4)If the goods do not conform to the contract under section 15 or because of a breach of requirements that are stated in the contract, the consumer’s rights (and the provisions about them and when they are available) are—
(a)the right to repair or replacement (section 23); and
(b)the right to a price reduction or the final right to reject (sections 20 and 24).

(14)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.

Read the fine detail in 14 and 15.
In 14. the shift in the burden of proof to the seller does not occur if the customer wants to exercise their short term right to reject. It applies for all other remedies.

If you don't want to reject (you mention rejecting then a replacement) 15(b) provides for some sanity in cases like this, where the nature of the problem (damage) could just as easily have occurred in the time since delivery.

The retailer is correct, they can ask you to prove your case and have done so. If push comes to shove, you'll need to convince a judge it arrived damaged on the balance of probabilities. Can you do this?

PCMcGarry

mutzi wrote: »

People like to read these things from only one side. Both sides have rights. You do not have either 30 days or six months to say "it's smashed to bits, it arrived like this, prove otherwise, I know my rights!!!" Six months of free accidental damage insurance on every purchase, that would be insane wouldn't it?

Here is what the law says about burden of proof...



Read the fine detail in 14 and 15.
In 14. the shift in the burden of proof to the seller does not occur if the customer wants to exercise their short term right to reject. It applies for all other remedies.

If you don't want to reject (you mention rejecting then a replacement) 15(b) provides for some sanity in cases like this, where the nature of the problem (damage) could just as easily have occurred in the time since delivery.

The retailer is correct, they can ask you to prove your case and have done so. If push comes to shove, you'll need to convince a judge it arrived damaged on the balance of probabilities. Can you do this?

Well having read that, your post states if he wants a replacement it's damaged now so it was damaged on day one, which is inside the sellers return period for goods damaged in transit. So he has a right to a new tv?

System

Imagine these two cases.
1. A laptop bought five months ago, doesn't turn on any more. The buyer doesn't have to prove anything, the seller must prove it's a not a fault. e.g they are not liable if they can show it's caused by the big red wine coloured stain covering most of the internal boards.
2. A new car, after five months you wrap it around a tree. Good luck proving it was delivered like that...

Example 2 is an extreme version what 15b means at the end "with how they fail to conform to the contract." Damaged things need to be resolved quickly and the onus is really on the buyer to check.

He has the right to a new TV if he can show it arrived damaged.

PCMcGarry

mutzi wrote: »

Imagine these two cases.
1. A laptop bought five months ago, doesn't turn on any more. The buyer doesn't have to prove anything, the seller must prove it's a not a fault. e.g they are not liable if they can show it's caused by the big red wine coloured stain covering most of the internal boards.
2. A new car, after five months you wrap it around a tree. Good luck proving it was delivered like that...

Example 2 is an extreme version what 15b means at the end "with how they fail to conform to the contract." Damaged things need to be resolved quickly and the onus is really on the buyer to check.

He has the right to a new TV if he can show it arrived damaged.

I know the two cases are extreme.

The old Sale of Goods Act used to say you have a reasonable time to inspect the goods. It didn't state what is reasonable.

The new act gives the seller 30 days.

Look at it this way.

The OP examines the tv on day one and its smashed. It is therefore presumed to be damaged in transit and the seller will accept a return.
Did he drop it taking it out or did it happen in transit? Seller is happy it's transit damage.

Two weeks on having stored it correctly it's damage when he takes it out of the box. He's still within his 30'daynperiod so why does he now have to (a) prove how it got damaged and (b) why is his word not good enough? It would have been on day one.