Managed to find this - which may help other people in a similar predicament.
WHEN THE MAXIM 'RES IPSA LOQUITUR' APPLIES
There are three conditions that must be fulfilled before res ipsa loquitur applies.
(a) The defendant must have control over the thing that caused the damage. See:
Easson v LNER [1944] 2 All ER 425
(b) The accident must be such as would not normally happen without carelessness. See:
Scott v London and St Katherine Docks (1865) 3 H & C 596
(c) The cause of the accident must be unknown. See:
Barkway v South Wales Transport [1950] 1 All ER 392
ITS EFFECT
There are two opinions as to the effect of res ipsa loquitur.
(a) It raises a prima facie inference of negligence, which requires the defendant to provide a reasonable explanation of how the accident could have occurred without negligence on his part. If the defendant provides an explanation, the inference is rebutted and the claimant must prove the defendant's negligence. See:
Colvilles Ltd v Devine [1969] 2 All ER 53
(b) It reverses the burden of proof requiring the defendant to show that the damage was not caused by his failure to take reasonable care. See:
Henderson v Henry Jenkins & Sons [1969] 3 All ER 756
Ward v Tesco Stores [1976] 1 All ER 219
The opinion of the Privy Council is that burden of proof does not shift to the defendant because the burden of proving negligence rests throughout the case on the claimant. See:
Ng Chun Pui v Lee Chuen Tat [1988] RTR 298.
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You will have to prove that the switch/ecu was damaged by the garage.
You have a report to the effect that the most likely cause is for an innapropriate charge to be applied.
You have no direct evidence that the garage damaged the component.
Your evidence is circumstantial, but quite persuasive I think.
I do not think that res ipsa loquitur applies. The lead case (I believe) involved a sack of flour or a barrel falling out of a factory window and landing on the claimant. He couldn't show how this came to happen and therefore couldn't prove that it was an act of negligence on the part of the factory owner.
The court found that due to the special circumstances, it ought to be for the defendant to show that there was an innocent explanation. Otherwise "the thing speaks for itself". In these circumstances, the burden of proof is therefore reversed.
I think wou would struggle to use this doctrine here. It is not a case where an "object" controlled by the garage has caused damage.
If you do sue, you need to be sure that you have got the correct identity of the garage. Is is a sole trader? If yes, you need the owner's name.
If it is a company, you will need the full company name and registered office address. I suspect the latter as the man you spoke to said you should speak to head office.
Finally, if you are suing a company, you do take the risk of them going bust or "dissappearing" and making any judgment impossible to enforce.
Do not use a lawyer as it will cost you more than you can hope to recover.
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If you win in a Small Claims court it will cost you nothing; if you lose it will cost you the others side's costs, over and above yours and theirs could be high if they choose to involve some high paid help. An earlier thread here mentioned a claimant being warned that his opponents costs could be well over £2,000; he called their bluff and won but it is still a risk.
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Just to play devil's advocate, if I was the garage's lawyer I would be asking two questions-
1) What exactly is the garage supposed to have done during a standard MOT test that could cause an incorrect charge to be applied to the electrical system seeing as they should have no need to touch it.
2) The compnent that has failed, that you say should last the life if the car has already broken down in the past hasn't it? Is it not the case that your car is actually faulty causing it to eat these components?
You need to think of good answers to these questions!
To whoever said that the MOT shouldn't have been issued. Why not? The car was still roadworthy, it was just that the gearbox was making dodgy noises! Not an MOT failure point, I've seen some right wrecks pass an MOT just because all of the testable bits were in good order.
Blue
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You could point out that the MOT tester would have been required to use the gearbox on a number of occasions during the test - an example is the braking efficiency test.
If the operator was not fully aware of the method of using the gears then that could easily have caused the damage, although it is only conjecture.
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Yes, but Nsar's evidence states that the fault was cause by an incorrect charge being placed on the electrical system, I doubt it's possible to do that by applying the brakes during an MOT test, you would probably have to be working on the electrical system, that's why I think this will be a tough one to prove. Just from my layman's perspective of course!
The other big problem is that this same compnent that should last a lifetime has failed before, if the garage broke it this time, then what caused it ot break last time when it was under Nsar's care? That's going to be another sticking point I would think.
Like I say, I'm no expert, there are people who will know far more about this than me, I just know that if I was in Nsar's situation I would be careful before commiting to a possibly expensive court case if I didn't have at least some very watertight answers to these questions.
Blue
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The report says its the probable cause, not the only cause - it could have been caused by someone simply mistreating the box.
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Why not just issue a summons, its little enough to invest. Then I would recommend you accept any reaosnble offer from the garage, because I don't really fancy your chances in the SCC, if they will even deal with it. They're not struck on points of law and much prefer points of fact.
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A Small Claims Court summons costs £27.
What will/should aid your claim, if you decide to go this route, is that you were dropped off by the garage representative in a properly working vehicle and the next time you drove it was straight after the test and that you pointed out the circumstances immediately.
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What\'s for you won\'t pass you by
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Frankly I think your legal case would not last 2 minutes in court and if you ssend a legal letter you will get nowhere.
It broke before.
The probable cause was misuse - perhaps you misused it as it broke before when you drove it ? What was the casue of that failure?
The probable cause may not be THE cause. "So Mr Smith you are claiming this garage damaged your car when you do not know what caused the failure? And it failed before when the garage are not involved. And what was the casue of that failure? Ah driver abuse .. and who was the driver?..." or something like that. A good lawyer should be able to demolish your case in well under 30 minutes in court...unless you have real proof..
So my view is the garage will win hands down. And if it gets to court you will end up with the opposition's legal bills.. since your case is so weak they should not be very much...(as far as lawyers' bills go).
But I'm no lawyer.. just used them :-)
madf
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er no, the probable cause according to experts was an excess charge and it is common ground that the gearbox was working perfectly when it was driven away by the garage's employee.
Anyway it would seem that you and I arguing the toss isn't going to be conclusive, I was just trying to clarify.
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Nsar
You mentioned that some minor work was carried out. Could this have involved disconnecting the battery or work on an electrical component?
--
Roger
I read frequently, but only post when I have something useful to add to the thread.
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No the only work for the MOT pass was rear wheel bearings and an indicator bulb - unlikely to need to disconnect,
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Untrue Armitage.
for small claims (ie claims under £5,000) the normal costs rule (loser pays winners costs) does not apply. The normal rule in the small claims court is that no costs order is made. The only exception is for the initial court fee. If you win you get that back.
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Thank you for that polite correction As you say, I got the amount I claimed plus my costs. I was quoting from a post from a couple of weeks ago which gave the impression that he was 'informed', by the people against whom he was claiming, that they were bringing in high powered help and it would cost him if he lost. In fact there is no representation in SSC is there? The facts are presented in writing and a judgement is made.
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Sort of!
When a defendant raises the spectre of a big legal bill, he is trying it on.
Cases in the small claim court do get heard by a judge (albeit a junior sort of judge, known as a district judge)
The difference with the small claims court is that the procedures are all relaxed. The idea is that people will be able to deal with cases themselves. This is the rationale for the no-costs rule as well.
A directions order will be made by the court at an early stage, and this will ussually provide for both parties to exchange (and file) all documents on which they rely. Each side will also have to put together witness statements setting out the gist of what their witnesses will say. These are exchanged and served as well.
There is then a hearing. The witness statements stand as "evidence in chief" but the district judge will still allow some cross examination.
The problem here is that the report from the second garage is essentially an expert's report. It is giving the opinion on the most likely cause of the damage. The person who wrote the report will need to come to court too (you cannot just rely on the letter) and you will need the permission of the court to rely on expert evidence.
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>>I was quoting from a post from a couple of weeks ago which gave the impression that he was 'informed', by the people against whom he was claiming, that they were bringing in high powered help and it would cost him if he lost.>>
This comment was, in fact, posted by me. It was used by the (expensive) firm of Central London solicitors to try and frighten me into withdrawing the case. It stated its costs were already £2,000 and rising.
They even rang me personally claiming not to have received my evidence and had to back down when I pointed out that they had included it in their own summary of the defendent's position sent to me...:-)
However, as a journalist of many years' standing, I'm not too easily persuaded by such threats (probably intended to play on most people's ignorance of the SCC law) and, as I stated in the posting, the court took a very dim view of the "threats".
What was surprising was that my claim was for a very modest amount and hiring the solicitors in the first place would have cost the defendents a very hefty sum.
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What\'s for you won\'t pass you by
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If you win in a Small Claims court it will cost you nothing; if you lose it will cost you the others side's costs
Not so, generally a maximum of (£50??) a day - they can't charge their solicitors fees AFAIK.
snipurl.com/gxmh {link to www.adviceguide.org.uk shortened as was screwing up the page width. DD}
In most cases, the court will not order solicitors? costs to be paid by the losing party in a small claims case, and if you instruct a solicitor you will have to pay the costs yourself.
Do it online - easy.
www.moneyclaim.gov.uk/csmco2/index.jsp
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Nsar - what concerns me a little is your reluctance to explain why the multi-function switch thingy broke the first time round, as you've been asked it at least three times in this thread.
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Not reluctance it's just a long painful story...pull up a chair
Evening of 22 Dec 03 I flooded the engine and couldn't start it. Called RAC who couldn't either. Asked them to relay it next morning to the local indy specialist who've serviced it a couple of times before . Called garage when I could that day and they told me they were closed due to funeral but RAC had delivered already. RAC took it to another garage locally who tried to squeeze it in before closing for Xmas but they couldn't so it went to a 3rd garage were it stayed over xmas (still awake?) They got it started and I picked up after Xmas, but driving from them through heavy traffic didn't realise for a while it wasn't shifting gear so called 2nd garage (the workshop is run by a friend) told them of problem, dropped it off with them but they couldn't fix the problem with the box, so after much gnashig of teeth it went to a 4th garage who sent it to the auto specialists who have been involved this time round. They diagnosed a multi-function switch and solenoid problem replaced both and I got it back in March last year, since when the box has worked perfectly.
I have no idea when the switch problem developed in this saga.
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Your car obviously doesn't like garages, it seems to break the autobox each time it goes near one!
I reckon that the garage will try to get out of it by stating that they would have had no reason to apply any sort of charge at all to the electrical system during an MOT, and they will also simply deny abusing the box.
Well anyway, good luck with it Nsar, I honestly think you'll need it by the sounds of things!
Blue
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Nsar,
As to your claim itself I think you have a point but whether it is strong enough I can't say.
As to the small claims court I have sued successfully 5 times although my cases were open and shut with the other party just refusing to pay up. The other parties in my cases used one or all of the following tactics.
1. Threat of massive legal bill if I lose. Which as explained above is bogus.
2. Threat of filing of a counter claim on spurious grounds plus repeat of 'we'll take this all the way it'll cost you a fortune'.
2. Implied threat of violence (verbal only) if I did not drop the case the 'we know where you live' type. Reported to the police who did nothing.
3. Having the case moved to another location. If this happens you just apply to move it back to where you are.
4. Repeated requests for delay of the hearing until the court said no more delays.
All my cases were settled in full the day before the case was due to be heard but as I say they would have definitely lost anyway.
Its a good fair process and if you can make your case you'll win but it can take up a lot of your time in the process.
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Numbering went off a bit there.
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Quite.
I do not get the impression that any of the electromechanical investigations have established the root cause. You may never find the root cause of the problem, but if something such as auto box electronics fails twice within a relatively short period of time I would very much think that the cause of the failure has not been established.
This is what may defeat you in any legal claim.
How do you know that the replacement unit was not from a substandard batch. Was it OE quality at all?
What exactly has 'gone' on the replacement unit. Is it the same component as on the previous occasion?
As a part of my work I investigate electronics failures and the apparent cause of failure is rarely obvious nor is it anywhere near the root cause.
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Hmm, replacement part that should have years of life in it works perfectly for 12,000 miles, goes into garage and suddenly it's kaput with garage staff aggressively defensive about their actions - don't forget that they must have known the car had a fault on it when they parked it on their forecourt (unless the fault occured at the precise moment I put the key in the ignition). Seems like a big coincidence to me.
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(unless the fault occured at the precise moment I put the key in the ignition). Seems like a big coincidence to me.
Not such a big coincidence. The moist likely (not a typo, just a cheap attempt to get laughs) cause of damage is an electrical surge? So when are cars at most risk from such a surge? That's right, when starting.
The previous difficulties manifested themself with starting problems. I would hazard a guess that there is an inherent weakness in the starter circuit and it likes frying stuff from time to time.
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Sorry to be yet another devils advocate.
It would be quite possible for the garage to argue that they managed to park it without any problems...could you prove that they maybe pushed it to where it was?
On another point, I believe already mentioned?, it is quite possible for an overvoltage to cause a component of the ECU to fail.
What sort of warranty came with the ECU? Could you ask its manufacturer for a contribution? Must be worth a punt as, Yes, an ECU should last the life of the car.
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nsar,
would you mind telling us which make/model of car?
may be relevant, in case others know of similar problems.
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nsar,
perhaps they suffer like renault lagunas ? - see hj's car-by-car
" Poor quality electrics lead to all manner of irritating failures, including alternator and the auto gearbox multi-function switch. "
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Perhaps, the only other car I've had from that stable, a Corrado way back when, gave me hell with electrics.
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Nsar, I think the biggest problem you have is showing, on the balance of probabilities, that the garage did something they should not have done. For that you should seek a written opinion from an independent automotive engineer. I don't think an autobox repairer is sufficiently independent, and I doubt that a DJ will find in your favour without it. If your expert backs your 'diagnosis' then the DJ may find in your favour, although no doubt the other side might produce their own expert to dispute it. The only problem is - an expert won't come cheap, although you should recover the cost if any award is made to you. Nevertheless, in the process of the proceedings you might at least squeeze some kind of offer out of the garage or their insurers if they are keen to avoid the uncertainties of a hearing. The point that would also concern me, as the DJ, is the fact that they were prepared to return the car to you in a defective condition. I realise that vehicles taken in for MOT testing are usually only run on the rolling road and then moved across the forecourt to await collection. From what you say, however, the fault should have been evident as soon as the car was moved? If so then the absence of any comment from them suggests to me that they were keeping their heads down - and a DJ may feel that they had something to hide.
I'm afraid your major problem is producing convincing evidence. However, take comfort from the fact that, in my experience, most DJs don't like sending determined claimants away empty-handed!
Good luck.
CG
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I *have* been trying to keep up with this, and I am not a legal beagle. I don't believe there is any evidence of negligence or misuse by the garage so I really don't understand why Nsar would have a leg to stand on...?
What could the garage have done to cause the problem?
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Abuse the box apparently, but I'm not sure what sort of abuse you would have to do to cause this damage. Tow it? Rag it about in first gear rather than Drive? I honestly can't think what sort of abuse they could give it. nsar's case is going to rest on coming up with a convincing explanation for waht sort of abuse the garage have carried out/
Te garage's case rest's on showing that there is likely something inherently wrong with the car seeing as it has eaten this component once before, from what I can see anyway.
Blue
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This link may be irrelevant, because i don't know if the transmission ECU is simialrly vulnerable, but it gives an illustration of a cause of cooked ECU: www.carelect.demon.co.uk/vwp1.html
It may be that they removed/displaced an earthing strap, but you may have to have an auto-electrician trace out the circuits and check the facts. It could also be a pre-existing fault which was uncorrected since your previous mshap?
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>>What could the garage have done to cause the problem?>>
On a very much smaller scale my VW's stop light bulbs both blew during its last MOT nearly a year ago - they had never given any trouble before or the replacements since.
It happened during the brakes test. Because I always observe the testing sequence, I noticed it immediately and confirmed the bulbs' failure when the car was reversed back off the ramp and brought to a halt.
The tester just shrugged his shoulders and agreed to replace the bulbs at cost price.
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Now that really is freaky co-incidence!
Blue
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One other thought Nsar (and I can't recall seeing it mentioned in any of the posts but apologies if I've missed) - did you note the mileage when it was handed over to the garage and again on collection? In other words, had the car been used for some 'running-around' while in their hands?
Incidentally, I agree with other posts regarding 'res ipsa' - while it is obvious that the fault appeared while it was with the garage, it is unfortunately far from obvious that they caused it. Therefore, I'm afraid that the facts do not speak for themsleves in your case.
CG
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Same thing happened with my Passat on the brake test, one of the brake light bulbs blew.
They went to replace it and then found they didnt have one in stock with the offset pins that are found on the Passat bulbs so it was off to VW for a couple of bulbs.
As always
Mark
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