Damaged in transit - replace or repair?

Stuckupahill

Hi all
A little question which I hope someone will be able to give some guidance.....

Short version
If an item is damaged in transit and the retailer offers to repair it, under consumer law do I have to accept the repaired item or can I insist on it being replaced with an undamaged, unrepaired model i.e. demonstrator or new?

Long version
I recently bought a new lawnmower online from a large specialist retailer. I won't lie it was a bargain - priced at £100 (inc delivery) when the rrp is £260. It was an ex demo model - but hadn't been used so effectively new. I was delighted.
So it was delivered yesterday. It's a heavy item - weighing 25kg - and came in a large cardboard box. There was no other protection or padding used in the packaging.
The Parcelforce courier pulled the box out of the van and hoisted it onto his shoulder to carry it to the house.
Unfortunately he dropped it while walking up the garden path. The fall has damaged a wheel and bent the mower body so the blade cannot rotate. I don't know what other damage may have been done to the motor or other internals.
The courier apologised, accepted responsibility and marked it as damaged.
I've contacted the retailer who's arranged for it to be collected.
The retailer has offered to "repair the damage or replace with an alternative similar mower".
My question is this - under consumer law do I have to accept the repaired item or can I insist on it being replaced with an undamaged, unrepaired model i.e. demonstrator or new?
My concern is that I don't know how fastidious the retailer will be checking for damage - they may just bash out the dent, replace the wheel and see if it starts. Or they might give it a total strip down - I don't know. Either way there's a chance that there may be other problems which don't show themselves until weeks or months down the line.
Although it will have a warranty, the retailer is 100 miles away so it'll be expensive to keep sending it back for repair.

There's two things to keep in mind:
1 Clearly it's the courier at fault but I think the retailer has to bear some responsibility for not packing the mower adequately (although I'm not sure how much difference it would have made given the height it fell from ).
2 The retailer will be able to claim the cost of any damage and repair from Parcelforce.

The retailer still has the same model priced new on sale at £195. I was thinking suggesting they send me one of those and claim the difference from Parcelforce. That way neither of us is out of pocket and I still end up with an undamaged, unrepaired mower.
The retailer will be free to sell on the damaged/repaired one.

Obviously I could just get my money back - but then I'm faced with looking again for another mower - I was happy with my original bargain.

Appreciate any thoughts...

neilmcl

No you cannot insist on a replacement. In this instance they can either give you a refund (not what your want I suspect) or, if they choose, attempt at a repair. You cannot insist on them giving you a brand new £260 lawnmower, which I suspect is what you're after.

powerful_Rogue

You can specify a repair, replacement or refund, but its upto the retailer to decide on the most cost effective solution - which in this case due to the discount will be a repair.

unholyangel

andygo999 wrote: »

There's two things to keep in mind:
1 Clearly it's the courier at fault but I think the retailer has to bear some responsibility for not packing the mower adequately (although I'm not sure how much difference it would have made given the height it fell from ).
2 The retailer will be able to claim the cost of any damage and repair from Parcelforce.

1. If it was the retailer who chose the carrier then they (retailer) are liable for the carriers failures.
2. That will depend entirely on the T&C's between the retailer & carrier but as per the above, doesn't affect the retailers liability to you.

You have the right to insist on a refund, or to instead request a repair or replacement. However, you cannot ask for a remedy that is impossible or disproportionately costly in comparison to the other. You can also claim for damages. Damages is usually first assessed with a view to putting you into the same position had the contract been performed correctly and when that isn't possible, to put you back into the position you would have been in had the contract not been entered.

The problem is that (imo) the damages would not be assessed at the price to buy replacement brand new goods as you clearly did not buy brand new. Therefore I would say perhaps ask them about the replacement with a new one but if they're not willing, perhaps negotiate where you pay an additional amount (on top of the £100) in exchange for a new one. Say you pay an extra £40, you get a brand new one with no wear & tear of an ex-display and they've given you £55 off the selling price of a new one but don't have the cost of a repair.

Alternatively, you could ask them for an assurance if anything goes wrong within the warranty period, they will cover the cost of postage (if that is the only worry you have about it).

Stuckupahill

Thanks for replies. I feared as much.

I'll see what the retailer says (pretty much depends on their goodwill I suppose) otherwise it'll be a refund, but just wanted to check what legal rights I had.

In my opinion an item which was dropped from height and repaired isn't the same as the one I originally purchased.

I wouldn't have bought it as damaged/repaired in the first place so I don't think it's unfair or disproportionate to ask to replace with similar (or better if no other demos available) - and get Parcelforce to make up any difference.

mattyprice4004

Personally I have a feeling they'll refund - I was in a similar situation with a set of speakers.

That's all they need to do legally.