Public Liability (split from vented discs discussions)

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Public Liability (split from vented discs discussions)

Post by scimjim » Wed Jan 27, 2010 7:15 pm

I would reccomend that you merely allow members to contact the companies direct, as the first point of recourse is yourself as you are the supplying agent....
To clarify for those that don't wish to read the complete post - the comments regarding liability below, refer to individuals supplying OEM components for use in the manner for which they were intended - not reconditioned, second hand or modifictions

I've had several discussions regarding this subject and I just wanted to clarify a couple of points - particularly an error in the above post regarding "supplying agents":

If an individual put together a group of items supplied by a manufacturer or vendor, they could become the first point of recourse for any claim under the Sale of Goods Act (1979). That means that if the item was "of poor quality" the individual would (within the constraints below) normally replace the item(s) and take up the problem with the supplier. However, he has no legal requirement as a private seller or someone not "acting in the course of a business"

Under the Sale of Goods Act:

You have 3 statutory rights whether or not a written contract exists and whether or not they are specifically mentioned at any stage.

1. The seller has the right to sell - If the item is not owned by the seller, or the seller has not been given permission to sell the item, the contract is immediately invalidated – and you will own nothing.

2. It is what you expected - If you have bought something on the basis of the seller’s description or a sample, you should expect the item to conform exactly to that description or sample. If it does not, you have the right to reject the goods, demand a full refund and possibly claim damages. This is still the case even where you have selected or examined the items for yourself before buying them.

3. It is of satisfactory quality

3.1 Measurement of Quality - Satisfactory quality is defined as what a ‘reasonable person’ would regard as acceptable, and takes into account factors such as price paid, fitness for purpose specified, appearance and finish, freedom from minor blemishes, safety and durability. If it becomes apparent that an item is not of the quality you were led to expect, you were not aware of any such defect when you bought it, and you bought from a seller acting ‘in the course of a business’ (i.e. not an informal sale), you are quite within your rights to go back to the retailer, even after some months of use. If a product develops a fault within the first 6 months, the assumption will be that this defect was present at the time of purchase and you will not have to prove anything. If you are returning an item after this 6 month time period, this automatic assumption does not apply, and it may be up to you to prove the fault did not occur through misuse. You should also consider aspect of durability and acceptance. Your rights under Sale of Goods apply even if the item you have bought is second-hand, as long as you buy it from a registered trader or retailer. If you buy something from a private seller, you don’t have the benefit of this protection and must employ ‘buyer beware’.

If it is the case that you were invited to carry out a thorough inspection of the product and fail to spot a defect which that inspection ought to have revealed, you may not have recourse. Safety is an important aspect of quality and unsafe goods and product liability are covered under different legislation – namely that of the Consumer Protection Act

3.2 Fit for Purpose - You may have a legitimate claim as long as you are using the item for the purpose for which it was intended. There is no point claiming that paint thinner has had adverse effects if it is not being used as paint thinner! Similarly, if you are commissioning the manufacture of a product and do not specify the purposes for which it will be used you will have no recourse if it fails to live up to your expectations.

3.3 Durability - Durability is another recent addition to the definition of quality. How long should a dishwasher or a vacuum cleaner or a printer last? This is a very common source of complaint and one which manufacturers were always quick to turn back on the consumer, requiring them to provide proof that the item did not conform to contract specification from the start, or implying an element of misuse or neglect. Thanks to the new European Regulations, UK law now offers greater protection for consumers against products which develop faults within the first 6 months. The assumption is now that if it breaks down within this time period it cannot have conformed to the contract specification when purchased and you have the right to an automatic repair or replacement. Having said this, items which should last several years can still break down after this six month period. If the retailer or manufacturer’s warranty has run out, the shop is often quick to say there is nothing they can do before attempting to sell you an extended warranty. This is misleading. If you buy something which should last 7 years but breaks down after a year and a day, you can still claim it was of poor quality in reference to the durability aspect. In this respect it will help to know how long items such as washing machines or printers should last. You can get this information relevant trade association

When discussing safety and product liability, you aren't concerned with the Sale of Goods Act - you're looking at the Consumer Protection Act.

Under the Consumer Protection Act:

Under the Consumer Protection Act, the "supplying agent" has no legal liability for those items. That liability lies with the "......manufacturer, or any person / organisation who puts their name or trademark on the product, which generally gives the impression that they are the producer..... unless the the supplier is either unwilling or unable to provide the details of the producer....."

Damages and Compensation - To make a successful claim for damages or compensation as a result of using an unsafe item, there are a number of things you must first prove.

The product has a defect
Damage has been caused (death, personal injury, damage to private property in excess of £275)
The damage was caused by the defect
The producer can be identified

Although you no longer have to prove negligence on the part of the supplier, you still have to prove the defect, the damage and the link between the two, so it could very well amount to the same thing. You should also ensure you were using the product only for the purposes it was reasonably intended for, and there were no safety instructions which you ignored. Similarly, if a product is marketed for expert or experienced users and you are a novice, you have nobody to blame but yourself if you are injured as a result.

The Consumer Protection Act imposes liability on the producer, or any person / organisation who puts their name or trademark on the product, which generally gives the impression that they are the producer. The product may be own-branded by a retailer such as a supermarket. This is where the retailer gives the impression the product has been made by them, even though they are simply reselling someone else’s product. Where this is the case, unless the actual producer is mentioned on the packaging, it will be assumed that the retailer is the producer. Where the item has been imported into the EU from outside the EU, it will be the organisation who first imported it into the EU. This is relevant for dangerous toys which have been made in the Far East. Where you have a long distribution chain, it may be difficult to identify the liable producer. In this case you are within your rights to request details of the producer from the supplier of the product. If the supplier is either unwilling or unable to provide these details, then that person will be liable, as if they had been the producer.
Last edited by scimjim on Thu Jan 28, 2010 8:49 pm, edited 1 time in total.


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Re: vented disc upgrade wanted please!

Post by Littlechicken » Wed Jan 27, 2010 10:16 pm

A very detailed and informative post

I have edited my original post as the points raised are not relative as the quote shown is now out of it's orginal context .

The intention of the original quote was not scare tactics or malicious for that matter but was/is purely advise.

I would never wish anyone on this forum or in our club to face legal proceedings and possibly lose their house defending themself .
Last edited by Littlechicken on Fri Jan 29, 2010 10:44 am, edited 1 time in total.


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Re: vented disc upgrade wanted please!

Post by scimjim » Wed Jan 27, 2010 10:34 pm

there's a difference between something an individual has had designed and/or commisioned to be built - and something an individual buys from a manufacturer or supplier and sells on. An individual cannot be sued as a "supplying agent" unless he is doing such in the course of running a business.

If I (as an individual) buy a willwood brake caliper and a set of Goodrich stainless hoses and sell them to you as a kit - I have NO liability for those parts - period.
Last edited by scimjim on Thu Jan 28, 2010 8:30 am, edited 1 time in total.


Jim King

Current: SE5 (8Ball), TI SS1 (snotty), 1600 SS1 (G97), 1600 SS1 (C686CCR), 2.5TD SE5a (diesel 5a), 6 x random other SS1s.
Previous: SE5, 3 x SE5a, 2 x SE6a, 3 x SE6b, GTC, 2.9i GTC, 3 x 1600 SS1, 1300 SS1, Mk1 Ti Sabre, Mk1.5 CVH Sabre
Chief mechanic for: 1400 K series SS1 (Megan3), 1400 CVH EFi SS1 (Grawpy), Sabre/MX5 auto (The Flying Broomstick),
1300 SS1 (Number One) & Sarah's coupe.
CURE THE FAULT - NOT THE SYMPTOMS

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Re: Public Liability (split from vented discs discussions)

Post by philhoward » Wed Jan 27, 2010 10:39 pm

Whilst still relevant to the discussion in hand, i've split this off and moved to Non-Technical to be made a sticky - information worth keeping IMHO.


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Re: vented disc upgrade wanted please!

Post by Littlechicken » Wed Jan 27, 2010 10:53 pm

Jim,

I have sent you an e-mail.


Mark
Last edited by Littlechicken on Thu Jan 28, 2010 2:18 pm, edited 3 times in total.


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Re: Public Liability (split from vented discs discussions)

Post by geoffp67 » Wed Jan 27, 2010 11:06 pm

-period.

Full stop.


Can we stick to English English please ?



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Re: Public Liability (split from vented discs discussions)

Post by Roger Pennington » Wed Jan 27, 2010 11:27 pm

I must admit that if I’m reading it right, I’m gobsmacked by the content of this thread. Correct me if I’m wrong (product liability is not my area) but this appears to be saying that if I assemble a selection of disparate parts and market them as a kit then I have no responsibility for the result, that instead that responsibility rests entirely with the individual component manufacturers? Can that be correct?? :?

I await developments with interest.

Cheers,

….Roger


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Re: Public Liability (split from vented discs discussions)

Post by scimjim » Wed Jan 27, 2010 11:36 pm

Roger Pennington wrote:I must admit that if I’m reading it right, I’m gobsmacked by the content of this thread. Correct me if I’m wrong (product liability is not my area) but this appears to be saying that if I assemble a selection of disparate parts and market them as a kit then I have no responsibility for the result, that instead that responsibility rests entirely with the individual component manufacturers? Can that be correct?? :?

I await developments with interest.

Cheers,

….Roger
I'm not too sure about your use of the word "assemble" Roger - but provided that they are used in the way that they were designed to be used - how can you be held liable for selling a brand new boxed brake caliper and a brand new boxed brake hose (for examnple) that are both listed as fitting an SS1 (for example)?


Jim King

Current: SE5 (8Ball), TI SS1 (snotty), 1600 SS1 (G97), 1600 SS1 (C686CCR), 2.5TD SE5a (diesel 5a), 6 x random other SS1s.
Previous: SE5, 3 x SE5a, 2 x SE6a, 3 x SE6b, GTC, 2.9i GTC, 3 x 1600 SS1, 1300 SS1, Mk1 Ti Sabre, Mk1.5 CVH Sabre
Chief mechanic for: 1400 K series SS1 (Megan3), 1400 CVH EFi SS1 (Grawpy), Sabre/MX5 auto (The Flying Broomstick),
1300 SS1 (Number One) & Sarah's coupe.
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Re: Public Liability (split from vented discs discussions)

Post by geoffp67 » Wed Jan 27, 2010 11:51 pm

take the brake upgrade - well known - chevette hub, carlton disc, volvo caliper.............someone might be considered liable, especially by an insurer trying to wriggle out of a big claim......



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Re: Public Liability (split from vented discs discussions)

Post by philhoward » Thu Jan 28, 2010 12:12 am

At the end of the day, it's what each owner feels confident in doing to their own abilities (hence the conversion that bears my name as I was the first to piece it all together) - and I know mine.

Whilst the standard SS1 brakes are "legal", that doesn't necessarily mean they are up to the requirements of improved performance/modern road conditions. Retro-fitting ABS won't cure brake fade though..and how do Morris Minor owners stand if they fit Marina disc brakes?

As to the legal implications? Thats why i never persued the opportunity of selling a complete bolt-on kit; i just published details of how I did it. Public Liability was the main reason to be honest. It's a minefield i didn't want to be involved in, so i took advice on the matter.

Those who have followed my ramblings and done their own conversion using the same main components must be confident with their own skills as they are doing something that puts their own lives (or those of their immediate family) at risk. Saying that, the same could be said of changing a set of brake shoes...

Forum Admin hat on:
I'm not against this discussion - in fact, it might help clear up the muddy waters of such a topic, but at the first hint of anything slightly dodgy, this topic will be removed. I would have said "no names mentioned or implicated", but mine's already been hinted at..although I hope i'm in the clear!


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Re: vented disc upgrade wanted please!

Post by Littlechicken » Thu Jan 28, 2010 12:16 am

Some one who modified the brakes on a vehicle and is now serving a 2 year sentence for man slaughter although I concede he was not sued, although this an extreme case.

http://www.telegraph.co.uk/news/newstop ... ldren.html

The key issue of this case was a modification to the brakes that caused the vehicle to go out of control, a like any conversion untested and unapproved.

I would suggest for protection of the individual the club is approached with the idea and we try and sell them via the club, however we would need to speak to the insurers first as they may not wish to offer the cover. By the way who are the insurers?

I agree we all have a vested interest in keeping the cars on the road, and yes individuals sourcing parts is a way, but, equally we all have to ensure the parts are fit for purpose, we should also support the club traders afterall they support the club.


Mark

**Mod Edit to remove now deleted quote**
Last edited by Littlechicken on Fri Jan 29, 2010 10:54 am, edited 2 times in total.


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Re: Public Liability (split from vented discs discussions)

Post by Roger Pennington » Thu Jan 28, 2010 12:18 am

scimjim wrote: I'm not too sure about your use of the word "assemble" Roger - but provided that they are used in the way that they were designed to be used - how can you be held liable for selling a brand new boxed brake caliper and a brand new boxed brake hose (for examnple) that are both listed as fitting an SS1 (for example)?
Well, ok, perhaps “assemble” was a bad choice of words, as it implies some mechanical construction. So let’s call it “integrate” instead. Has a suitable mid-Atlantic twang to it as well.

Now, suppose I buy and resell a Willwood calliper, listed (by willwood) as SS1 fit, then clearly Willwood are liable. If I buy and sell some Goodridge hoses, listed (by Goodridge) as suitable for SS1, then clearly Goodridge are liable.

However, if I buy a Willwood calliper, a Goodrich hose, and a Carlton disc (listed for SS1? I doubt it!), and integrate them into a kit which I then market as a kit with the claim that it is suitable for SS1, then surely I bear at the very least a share of the design responsibility for that integrated assemblage of parts?

Cheers,

….Roger

(hopefully nothing dodgy there Phil, it's certainly not my intention to attack anyone, just interested in some clarification :? )


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Re: Public Liability (split from vented discs discussions)

Post by philhoward » Thu Jan 28, 2010 12:24 am

No problem, Roger - the fact that none of the components in the conversion are actually listed as for fitment on an SS1 is what teared me away (and into the realms of PL) for sale of a "kit".


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Re: Public Liability (split from vented discs discussions)

Post by scimjim » Thu Jan 28, 2010 8:27 am

Roger Pennington wrote:Well, ok, perhaps “assemble” was a bad choice of words, as it implies some mechanical construction. So let’s call it “integrate” instead. Has a suitable mid-Atlantic twang to it as well.

Now, suppose I buy and resell a Willwood calliper, listed (by willwood) as SS1 fit, then clearly Willwood are liable. If I buy and sell some Goodridge hoses, listed (by Goodridge) as suitable for SS1, then clearly Goodridge are liable.

However, if I buy a Willwood calliper, a Goodrich hose, and a Carlton disc (listed for SS1? I doubt it!), and integrate them into a kit which I then market as a kit with the claim that it is suitable for SS1, then surely I bear at the very least a share of the design responsibility for that integrated assemblage of parts?
Roger - thanks for that - exactly my point and Geoff has made the same mistake - I have never said that you wouldn't be liable for modifying your car outside the original design (which, by adding a Carlton disc to the mix, you have done), if you re-read my original post, I was talking about OEM parts supplied by an individual and the fact that he has absolutely NO liability for those parts (providing he hasn't misled etc).


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Current: SE5 (8Ball), TI SS1 (snotty), 1600 SS1 (G97), 1600 SS1 (C686CCR), 2.5TD SE5a (diesel 5a), 6 x random other SS1s.
Previous: SE5, 3 x SE5a, 2 x SE6a, 3 x SE6b, GTC, 2.9i GTC, 3 x 1600 SS1, 1300 SS1, Mk1 Ti Sabre, Mk1.5 CVH Sabre
Chief mechanic for: 1400 K series SS1 (Megan3), 1400 CVH EFi SS1 (Grawpy), Sabre/MX5 auto (The Flying Broomstick),
1300 SS1 (Number One) & Sarah's coupe.
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Re: Public Liability (split from vented discs discussions)

Post by erikscimitardemon » Thu Jan 28, 2010 9:04 am

[admin hat on] Reminder: Please keep this on topic. [admin hat off]

Back to normal user mode:
IMHO the example of the newspaper article is out of context.
The discussion is about Public Liability. Not about dodgy car mods with dramatic concequences.


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