Is user error a valid response?

Tikkydog

Hi
In Feb this year I purchased a elite level swim costume (Arena Carbon core FX if interested) from Proswimwear online by credit card for my son who competes at national level.  Cost was £210.00.  On first use, and before they got near any water, my son was tightening the waist band when it came away from the stitching at the back, rendering them unusable.
I contacted Proswimwear and sent photos as instructed requesting they repair replace or refund. All within 30 days of purchase.  They are refusing to do anything telling me it was “user error” such that my son pulled too hard on the tie. I fail to see how this is acceptable given the item is designed to be used by elite swimmers (Olympic level) and should stand up to being pulled tightly.
I have passed the matter on to my credit card provider who are pursuing the matter, but Proswimwear won’t explain why the consumer rights act does not apply in this case. They say they have been in touch with the manufacturer who say it’s not a manufacturing fault but I have no proof they actually did nor can I understand how they can tell from a couple of photos where IMHO it’s obvious the surrounding material is not ripped which would indicate excessive force or miss use.
so is user error an acceptable defence to avoid the consumer rights act?

Manxman_in_exile

What exactly does this mean?

Tikkydog said:

...On first use, and before they got near any water, my son was tightening the waist band when it came away from the stitching at the back, rendering them unusable.
I contacted Proswimwear and sent photos as instructed ...

Can you perhaps show us the photos you sent to them?

Assuming your son did not damage* them through mis-use, there's no reason the CRA 2015 shouldn't apply if they are faulty or not fit for purpose etc.

*  I'd expect this sort of kit to be quite robust and - as I presume it's relatively tight fitting - to be able to withstand some force when being put on.  I know they are essentially only high tech swiming trunks, but did they come with instructions about wearing them or putting them on?

Ergates

Tikkydog said:

Hi
In Feb this year I purchased a elite level swim costume (Arena Carbon core FX if interested) from Proswimwear online by credit card for my son who competes at national level.  Cost was £210.00.  On first use, and before they got near any water, my son was tightening the waist band when it came away from the stitching at the back, rendering them unusable.
I contacted Proswimwear and sent photos as instructed requesting they repair replace or refund. All within 30 days of purchase.  They are refusing to do anything telling me it was “user error” such that my son pulled too hard on the tie. I fail to see how this is acceptable given the item is designed to be used by elite swimmers (Olympic level) and should stand up to being pulled tightly.
I have passed the matter on to my credit card provider who are pursuing the matter, but Proswimwear won’t explain why the consumer rights act does not apply in this case. They say they have been in touch with the manufacturer who say it’s not a manufacturing fault but I have no proof they actually did nor can I understand how they can tell from a couple of photos where IMHO it’s obvious the surrounding material is not ripped which would indicate excessive force or miss use.
so is user error an acceptable defence to avoid the consumer rights act?

Whilst "user error" is a valid response - but that doesn't mean it's an appropriate one in this case.  Based on what you've said, it doesn't sound (to me) like it would be.

Goods should be of "reasonable" quality, including durability.  "Reasonable" durability, whilst not having an exact definition, should mean that it would be quite hard to break an item of clothing during "normal" use.   Unless your son was pulling on the waist band way harder than a reasonable person would consider sensible, then they shouldn't break whilst being tightened.

Caveats to the above apply if, for instance, the trunks were obviously the wrong size, or if they came with a clear warning that they were delicate and needed to be handled gently.

However, even with those caveats, as it's within 6 months of purchase, the default position should be that it was a manufacturing defect unless they can demonstrate otherwise.

Manxman_in_exile

Ergates said:

Tikkydog said:

Hi
In Feb this year I purchased a elite level swim costume (Arena Carbon core FX if interested) from Proswimwear online by credit card for my son who competes at national level.  Cost was £210.00.  On first use, and before they got near any water, my son was tightening the waist band when it came away from the stitching at the back, rendering them unusable.
I contacted Proswimwear and sent photos as instructed requesting they repair replace or refund. All within 30 days of purchase.  They are refusing to do anything telling me it was “user error” such that my son pulled too hard on the tie. I fail to see how this is acceptable given the item is designed to be used by elite swimmers (Olympic level) and should stand up to being pulled tightly.
I have passed the matter on to my credit card provider who are pursuing the matter, but Proswimwear won’t explain why the consumer rights act does not apply in this case. They say they have been in touch with the manufacturer who say it’s not a manufacturing fault but I have no proof they actually did nor can I understand how they can tell from a couple of photos where IMHO it’s obvious the surrounding material is not ripped which would indicate excessive force or miss use.
so is user error an acceptable defence to avoid the consumer rights act?

...

However, even with those caveats, as it's within 6 months of purchase, the default position should be that it was a manufacturing defect unless they can demonstrate otherwise.

I always get confused about this. 

My understanding was that if the consumer is exercising the short term right to reject within 30 days, then they still need to demonstrate that the goods are "faulty" or otherwise do not conform to contract.  It's only after 30 days and up to 6 months that there is a presumption (rebuttable by the trader) that the goods had a latent defect of some kind.

What confuses me is whether if the consumer is simply complaining within 30 days, do they still need to demonstrate that the goods were faulty?

(I get confused because it seems counterintuitive to me that you must demonstrate a problem up to 30 days, but not between 30 days and 6 months, and I can't get my head round it... )

Ergates

I think you still need to demonstrate a fault up to 6 months, it's just that the default position should be that the fault is due to a manufacturing defect rather than misuse.  

But yes, some of the wording does make it sound like it's more complicated to return stuff after 14 days but before 30 days, than it would be after 30 days.

Jenni_D

STRTR for a refund does indeed aver that the consumer must prove that the non-conformance exists, if the seller requires this. If the consumer is requesting a repair or replacement then that isn't the STRTR anyway so the normal 6 months burden of proof timeline applies.

IMHO, IANAL etc.  

anotheruser

Jenni_D said:

STRTR, IMHO, IANAL etc.  

What?!

I know what the middle one is but best to just stop being lazy and write out the words you mean to say.

born_again

Well the on the last one remove the 1st letter & you will get the idea 🤦‍♀️

Manxman_in_exile

anotheruser said:

Jenni_D said:

STRTR, IMHO, IANAL etc.  

What?!

I know what the middle one is but best to just stop being lazy and write out the words you mean to say.

Short term right to reject and Jenni isn't a lawyer...

Ath_Wat

Manxman_in_exile said:

What exactly does this mean?

Tikkydog said:

...On first use, and before they got near any water, my son was tightening the waist band when it came away from the stitching at the back, rendering them unusable.
I contacted Proswimwear and sent photos as instructed ...

Can you perhaps show us the photos you sent to them?

Assuming your son did not damage* them through mis-use, there's no reason the CRA 2015 shouldn't apply if they are faulty or not fit for purpose etc.

*  I'd expect this sort of kit to be quite robust and - as I presume it's relatively tight fitting - to be able to withstand some force when being put on.  I know they are essentially only high tech swiming trunks, but did they come with instructions about wearing them or putting them on?

I don't know as I am not a swimmer, but it wouldn't surprise me at all if high tech swimming costumes are actually fragile, and care needs to be exercised in putting them on.  
They may for all I know be quite robust, but it wouldn't surprise me if they are not, because if you have to sacrifice robustness for performance, that's what you are going to do.

shiraz99

Manxman_in_exile said:

Ergates said:

Tikkydog said:

Hi
In Feb this year I purchased a elite level swim costume (Arena Carbon core FX if interested) from Proswimwear online by credit card for my son who competes at national level.  Cost was £210.00.  On first use, and before they got near any water, my son was tightening the waist band when it came away from the stitching at the back, rendering them unusable.
I contacted Proswimwear and sent photos as instructed requesting they repair replace or refund. All within 30 days of purchase.  They are refusing to do anything telling me it was “user error” such that my son pulled too hard on the tie. I fail to see how this is acceptable given the item is designed to be used by elite swimmers (Olympic level) and should stand up to being pulled tightly.
I have passed the matter on to my credit card provider who are pursuing the matter, but Proswimwear won’t explain why the consumer rights act does not apply in this case. They say they have been in touch with the manufacturer who say it’s not a manufacturing fault but I have no proof they actually did nor can I understand how they can tell from a couple of photos where IMHO it’s obvious the surrounding material is not ripped which would indicate excessive force or miss use.
so is user error an acceptable defence to avoid the consumer rights act?

...

However, even with those caveats, as it's within 6 months of purchase, the default position should be that it was a manufacturing defect unless they can demonstrate otherwise.

I always get confused about this. 

My understanding was that if the consumer is exercising the short term right to reject within 30 days, then they still need to demonstrate that the goods are "faulty" or otherwise do not conform to contract.  It's only after 30 days and up to 6 months that there is a presumption (rebuttable by the trader) that the goods had a latent defect of some kind.

What confuses me is whether if the consumer is simply complaining within 30 days, do they still need to demonstrate that the goods were faulty?

(I get confused because it seems counterintuitive to me that you must demonstrate a problem up to 30 days, but not between 30 days and 6 months, and I can't get my head round it... )

As mentioned the burden of proof within 30 days only applies if you're exercising your short term right to reject for a refund, if looking for a repair/replacement then the standard 6 month rule applies. It's there to discourage people from returning goods for refunds purely on the basis of changing their minds or buyer's remorse and using an excuse that an item is faulty to get a quick refund.