Legal Article - Business Law

Negligence, Defamation and Trespass: A Customer's Right to Compensation

The law of torts is a large area of the law, which is distinguished from the law of Contracts.

Unlike contracts, torts arise from incidents between two parties that are generally not bound by any contractual relationship at all.

The law of torts was established due to a high profile case involving members of the public and ginger beer. A fan of ginger beer found a decomposed snail in the bottle and was able to sue the manufacturer under the tort of negligence.

The lack of contract between the drinker and the manufacturer was irrelevant as the manufacturer has a duty to the public to ensure the products they supply are safe and fulfil people's requirements.

The law of torts is relevant to any persons, businesses or trades including the motor retail industry.

There was a well known case relevant to the law of torts which occurred in a service and repair garage.

A garage-hand was required to move cars as part of his employment but had to do so by hand; he was not allowed to drive the cars.

He disobeyed the clear instruction of the employer and through his negligence the car was badly damaged. Although this was an accident and the garage-hand was doing his job, he was using unauthorised methods.

The employers were liable for the damage inflicted upon the car.

Tort of defamation: How does this Apply to Motor Dealers

Tort of Defamation: How does this Apply to Motor Dealers?

This particular tort receives much publicity mainly because it is the stars of public life, which have the most to lose when someone pulls a skeleton from the cupboard. For the average motor dealer it may not be such a high profile case but there may still be instances where it can be an issue.

As with negligence, the level of damages can be very high this adds to the newsworthinessof the case. Essentially the law of defamation is seeking a balance between the private right of holding your reputation versus the general right of freedom of speech.

There are two types of defamation:

  • libel which is in writing
  • slander which is verbal

The statement made does not have to name a person; it can be defamatory even if inferred. So if someone said: I know the boss of the garage I bought this from is on the fiddle and it
is clear from the conversation that you bought it from a particular garage or even the only garage in, say, a village, then that could be considered defamatory.

If you came into a board meeting having had a meeting with the Business Manager and said Business Managers are all the same its not long before they have their hand in the till
then the Business Manager has an action for defamation if it is untrue.

There are defences to a claim for defamation. These are:

  • you are stating the truth
  • there is a duty to state it. If the Police question you about an employee you will be
  • obliged to say what you know when asked.
  • the statement was an opinion e.g. if a newspaper or other journal checks out a number of garages for customer service and unfortunately got Grumpy Graham when they rang you or visited. The opinion must, however, be fair comment.

Whilst it is a useful area of law to use as a threat it is not something to go to Court on unless it is absolutely necessary. Because of the level of the claim you are invariably talking about
involvement of solicitors and barristers on both sides.The outcome of cases can be unpredictable and the law is very complex requiring a lot of research.

Motor dealers sometimes come across Mr Angry who decides to walk up and down with a banner when they feel they have been treated unfairly. The Police may be prepared to be involved if there is obstruction of the highway or a breach of the peace.

On the other hand, in the writers experience, one clients solution was to start washing cars with a high pressure hose close to the complainant.Enough said. Naturally we cannot recommend or support such action.

Tort of Negligence: Basic Principles of Duty of Care

Tort of Negligence: Basic Principles of Duty of Care

Firstly it has to be established that a particular person or organisation owes a duty of care to someone else. The notion of duty of care is straightforward when considering traditional care organisations such as doctors, hospitals, local authorities, solicitors.

However it extends to a very wide group. In the motor trade there are several scenarios where a claim for negligence could arise. Here are some:

  • Giving wrong advice about the characteristics of a car e.g. these tyres will do 70mph, when they are rated lower.
  • Finding a car for a friend and not disclosing a material problem with it.
  • Leaving cars parked in a blind spot so that someone runs into it.
  • Leaving wheel nuts loose when carrying out a service.
  • Not drying the floor after cleaning in the showroom.
  • Leaving the car in gear after running it.
  • Not showing the customer the cars controls or explaining its performance characteristics when going on a test drive.
  • Leaving a customers car unlocked on the road.

The list goes on. You have got a duty of care to your potential customers, customers, visitors, employees and even friends.

Secondly, it has to be shown that you are in breach of duty of care. Sometimes this is obvious. Perhaps a manhole for the nderground petrol tank is left off and a customer drives down it, or a customers car is driven off by a thief when the keys were left in.

Sometimes however it is not so clear-cut. A car may be parked around a corner but the driver of the other car was going so fast he was partly to blame. The tyres werent rated at 70mph but why was the driver doing 70mph down an English country lane?

At other times someone might want to claim but in fact there has not been any negligence. As examples:

  • There may be no alternative to parking cars in a blind spot. However you may have a barrier in place to stop unauthorised people travelling to that area with warning signs and a wise guy decides he will lift the barrier and shoot round the corner.
  • The cleaner must clean the floors. Perhaps it is preferable if the cleaning is done when customers are not around. But, in any case something may be spilt and needs mopping up.

Showroom floors can be slippery when wet. Good practice is to put warning cones up around the wet area and to place non slip mats at the entrance.

If such cones are used and they clearly mark off the area, then should an irate customer come storming through the area to complain about a piece of chewing gum in their ashtray (which their son nicely left there), and go base over apex then you have not been negligent. They may have bruised her coccyx but they cant claim from you.

Thirdly, any damage must have resulted from the breach of duty. We have seen above that damage has arisen but it was not due to your negligence. Customers may get irate if you have been negligent. However if nothing untoward happens there is no claim. As examples:

  • the wheel nuts may have been left loose on the car. However the customer notices the handling is strange and rings you to tell you they have found loose wheel nuts. You tell them to wait and you will send someone out straightaway to the car.
Being impatient they decide they cant wait and drives to the garage leading to an accident as a result of the poor handling. The damage has not arisen through your negligence but through theirs.
  • you leave the customers car unlocked and ready for collection. The customer gives you a mouthful when arriving ranting and raving about what might have happened.
There is no claim if nothing was stolen.

As we saw previously there are cases where there is a sharing of negligence. This frequently occurs in road accidents. One car pulls out of a side road and someone drives into it. Yes, they shouldnt have pulled out when they could see the other car coming but the other car may have been exceeding the speed limit.

Another fairly common problem is when you have a customer's vehicle stolen from your site. There are different types of negligence claims, based on:

  • Whether the car is locked/unlocked.
  • Whether the car is parked on the road, on the forecourt, in a compound.
  • What the level of security is at the site.
  • Whether the theft arose while no one is in attendance or if someone was inattendance w hether they were threatened to allow the theft to happen.
  • Whether they had left the vehicle in your care and control.
Clearly the % negligence on the dealers part varies with the different circumstances.

Tort of Trespass: Accidental Damage to Customer Property

Tort of Trespass: Accidental Damage to Customer Property

In common usage we usually think of trespass as unauthorised entry onto property.

The reason for this is that landowners wishing to keep people off their property often erect signs warning off potential trespassers.

You may see the sign which says Trespassers will be prosecuted. This is known as the wooden lie. Trespassing is a civil wrong and therefore a person trespassing can be sued but not prosecuted as prosecution relates to a criminal wrong.

However the tort of trespass does not just apply to land but also to people and goods. It is basically an unlawful interference with goods.

If you stab someone, apart from hearing the sound of Police sirens for the criminal aspects, you could also be sued under the tort of trespass to the person and a civil claim for damages would arise.

If without authority you break into someones car, carry out a repair, or damage it in some way then that amounts to trespass of the owners goods.

The claim will normally amount to the level of damage. Walking across someones field may not amount to much unless you are ruining crops. Wounding someone will obviously give rise to a varying claim depending on what part of the anatomy is disabled and what affect that has on normal daily life.

If goods are damaged e.g. a car then the claim would be the cost of repair, but the Claimant must always mitigate their claim. So, if you do damage a car while doing work on it, and yes it can happen from time to time, always offer in writing to repair it (obviously only if it is your fault).
The customer may be a bit upset that it has happened but in order to mitigate the claim your quotation of zero cost will always beat any alternative.

Unless you have been totally reckless and the customer has lost all confidence, then the Court should support your actions.

Tort of Conversion - Outstanding Finance on a Vehicle

Tort of Conversion - Outstanding Finance

If someone sells or otherwise disposes of a vehicle to which they do not own, or have title, they fall foul of the tort of conversion.
A typical scenario may be a vehicle passing through the hands of a dealer which is worth £1000 but £1500 is outstanding to the finance company. How much can the finance
company claim? A similar case was heard on appeal and it was held that the proper measure of damages is the market value of the goods or the amount still owing under the agreement whichever is the less.

Check with your insurer or broker for insurance cover for conversion.

Defamation on the Internet - Customer Reviews, Blogs and Forums

Defamation on the Internet - Customer Reviews, Blogs and Forums

It has become very common for a disgruntled customer to put disparaging remarks about a garage on a review website, blog or forum.

Whilst a person is free to express their opinion they are not entitled to put untruths or comments that tend to lower the dealers reputation in the estimation of right minded people.

You cannot take action if the comments are true or fair comment but if they are not then action can be taken.

If the comments appear on a website then an approach to the website provider can have them immediately removed because the provider is equally implicated and will have a responsibility to act.

The problem remains that the comments have been published and although they can be removed suing is expensive and even if you win, damages may be small and if the person has no funds then you may receive nothing and have considerable damages of your own.

Author: David Combes

Published: 07 Mar 2011


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