Six Months Burden of Proof - What Counts

MarvinDay

neilmcl said:

theonlywayisup said:

neilmcl said:

theonlywayisup said:

After the six month period, the onus is on you to prove the fault was inherent.  A report saying the fault was not caused by you doesn't mean it is inherent.  Can you go back to the manufacturer and ask them to be more specific and maybe ask them if they could ascertain if they think the fault is inherent or not.

A report stating that a fault cannot by user inflicted gives a pretty much strong case on the balance of probabilities that the fault was there when purchased. No report has to actually use the phrase "inherent fault", in fact it's no longer used in the legislation itself.

I agree the report is helpful but  I do not see the report gives any evidence that the fault was inherent.   I did not say the report had to contain the phrase 'inherent fault' but I said the OP should go back and ask them if they can "be more specific" and even ascertain if it was inherent (ie there at the time of purchase).   

As per the post above mine - there are a multitude of faults that may not be down to the user but that does not prove they were there at time of purchase.  

This was a motherboard fault. If there's no evidence that the user has had any influence on that, which is backed up by the report, then how else does it fail other than via a fault that was "inherent", or there at the time of the sale.

A power surge or spike in the mains supply caused by a lightening strike or something done by the power generating company.
A very short spike in the voltage could easily damage the motherboard and this wouldn't be down to an inherent fault.

bris

Problem is whilst the manufacture will say not user error they are never really going to admit their products are inherently faulty.

The report has stopped short of that hence not being acceptedby the retailer. Other factors such as the leaving it left running 24/7 can cause heat issues, fans eventully fail, plastic parts warp etc.

The report needs to be precise and blame the manufure, so another specialist is needed. 

eric77

Hi.  Thanks everyone for your comments on this, very helpful.  Given the emails from the manufacturer, if the test is 'balance of probabilities' (i.e. more than 50%), then I suspect I have enough already.  If the court is looking to be 'sure' / 'certain' that the defect was there at purchase then I think I might need more.  Has anyone had any experience of how courts actually consider such cases?  Does it feel as though the court is looking for evidence that is 'sure,' or does it feel more like 'probably.' Many thanks.

Sandtree

eric77 said:

Hi.  Thanks everyone for your comments on this, very helpful.  Given the emails from the manufacturer, if the test is 'balance of probabilities' (i.e. more than 50%), then I suspect I have enough already.  If the court is looking to be 'sure' / 'certain' that the defect was there at purchase then I think I might need more.  Has anyone had any experience of how courts actually consider such cases?  Does it feel as though the court is looking for evidence that is 'sure,' or does it feel more like 'probably.' Many thanks.

Civil law is on the balance of probabilities... however its exclusively the judge's opinion and what you may think is a sure thing the judge may think is just circumstantial. 

I haven't read the whole thread as it was from some time ago now but most commonly you'd get an engineer's report that states what the problem is, what the likely cause is, an estimate to repair and a view if its economical to repair 

unholyangel

wesleyad said:

The report is certainly very helpful and I would have thought will help you, but there is a difference between a fault being inherent (covered in the CRA)  and a fault not caused by the user (as here)

An inherent fault has to exist at time of sale. Things like poorly placed fans eventually causing the laptop to overheat and break. 

But other faults might not count, for example if the hard drive fails and they find its from wear, even though its not the users fault, it wont be inherent and wont come under the CRA.

Disagree. How can wear and tear not be caused by the user? Wear and tear is degradation due to use or passing of time. Therefore if they have (and that's the key part of this sentence, if they have) said it could not have been caused by the user then that would include not caused by wear and tear. 

I would also point out that fault implies mistake or wrongdoing. You can be the reason/cause of something without there being any mistake or wrongdoing. So wear and tear may not be a mistake or wrongdoing on the user's part, but they're still the reason/cause of the wear and tear. 

unholyangel

Sandtree said:

eric77 said:

Hi.  Thanks everyone for your comments on this, very helpful.  Given the emails from the manufacturer, if the test is 'balance of probabilities' (i.e. more than 50%), then I suspect I have enough already.  If the court is looking to be 'sure' / 'certain' that the defect was there at purchase then I think I might need more.  Has anyone had any experience of how courts actually consider such cases?  Does it feel as though the court is looking for evidence that is 'sure,' or does it feel more like 'probably.' Many thanks.

Civil law is on the balance of probabilities... however its exclusively the judge's opinion and what you may think is a sure thing the judge may think is just circumstantial. 

I haven't read the whole thread as it was from some time ago now but most commonly you'd get an engineer's report that states what the problem is, what the likely cause is, an estimate to repair and a view if its economical to repair 

Circumstantial evidence is still evidence. It may be difficult (not impossible mind you) to secure a criminal conviction just on circumstantial evidence, but that's because the standard of proof is beyond ALL reasonable doubt. 

The standard for civil cases (which was the part you had right) is balance of probability. In other words, based on the facts and information in front of him/her, do they believe it is probably more true than not that the "fault" was inherent. Without any evidence of physical damage or report confirming user error......how do you think the balance would sit? 

Circumstantial evidence still has weight on those scales. As does hearsay. 

eric77

Thanks for everyone's help.  Just to provide a final update ....

The manufacturer was prepared to send me written confirmation that it would have fixed my failed technology if the failure had become evident within the stated period of the manufacturer's warranty (12 months.).  The terms of the manufacturer's warranty made it clear that it provides cover only that the purchased item is free from defects.  The written confirmation + the warranty terms were sufficient to get the matter resolved amicably.

Bradden

eric77 said:

Thanks for everyone's help.  Just to provide a final update ....

The manufacturer was prepared to send me written confirmation that it would have fixed my failed technology if the failure had become evident within the stated period of the manufacturer's warranty (12 months.).  The terms of the manufacturer's warranty made it clear that it provides cover only that the purchased item is free from defects.  The written confirmation + the warranty terms were sufficient to get the matter resolved amicably.

That's great news... please share who the companies involved were as they seem to have handled this pretty well.