/ Money, Shopping

Brief cases: proving that a damaged sofa is the retailer’s responsibility

Sofas

When Sofaland told Margaret her damaged sofa was due to ‘wear and tear’ she refused to believe it and came to Which? Legal for advice. Together, we managed to get her a £570 refund.

Which? Legal member Margaret Green came to us for help after being told that damage to her 18-month-old sofa was due to her not looking after it.

Margaret bought the £825 sofa from Sofaland in January 2013, but after just a few months saw a mark on the arm that seemed to be spreading.

When she asked Sofaland to inspect the problem it said the sofa was out of warranty and it was up to her to show there was a manufacturing defect.

Our advice for Margaret

MargaretMargaret came to us and our lawyers advised her to get an expert report. This found the leather on the sofa was unsuitable for wearing parts, such as the arms. Sofaland rejected the report and claimed the problem was because she hadn’t cared for the sofa properly.

Sofaland suggested getting a report from Homeserve. Margaret was reluctant as Homeserve carried out repairs for Sofaland, but agreed as the firm wouldn’t use any another expert.

In fact, Homeserve’s report confirmed that the leather on the arm was weak. This didn’t meet a legal requirement that it should be durable.

Sofaland offered a £350 discount on a new sofa or to repair part of the damage, which it still maintained was due to wear and tear. This wasn’t acceptable to Margaret, so we advised her to issue court proceedings. The court recommended mediation and she was awarded a £570 refund.

What does the law say?

Under the Sale of Goods Act 1979 the sofa had to be free from defects, satisfactory in appearance and finish, and durable.

As it hadn’t lasted as long as it should have, the retailer was in breach of contract and Margaret was entitled to seek a solution. This would be to have it repaired or replaced for free. It’s up to the seller to decide which, and this may depend on which is cheaper. If neither is possible, you can seek damages, or a partial refund which would include a deduction for your use of the item.

It may sometimes be possible to get a full refund for a faulty item, but this must be in a reasonable time after purchase (typically three to four weeks). It may also be possible to ask for a repair under a manufacturer guarantee given with the item – this would be in addition to your rights under the Sale of Goods Act 1979.

Comments
Member

Thanks for this Conversation, Chris.

Durability is not defined in either the Sale of Goods Act or the new Consumer Rights Act that will take its place. In another Conversation we have been discussing durability in the context of washing machines. Are there any legal cases where owners have successfully made a claim under the Sale of Goods Act for a machine that proved to be insufficiently durable?

Member

“Durability” is a defined word, but what the Sale of Goods Act cannot do is put a time or usage to it because the act applies to the whole range of products. OFT published a booklet for retailers explaining SoGA and had a glossary:
“Durability” is a requirement under the “Quality” heading:

“satisfactory quality” – meeting the standard a reasonable person would think of as satisfactory, taking account of the goods’ description, price and so on.

“durability” – the durability requirement is that the item should work or last for a reasonable time but it does not have to remain of satisfactory quality. For example, a pair of wellington boots should stay waterproof but does not have to keep its brand new appearance.

“reasonable time” – this depends on the item and the circumstances. What is reasonable is determined by taking everything into account and considering what an impartial person would think is reasonable.

Given the wide scope of the Act the intent seems pretty clear to me. It means interpreting the intent for specific products. Hence the need for information on say normal product lifetimes or usage in different price bands to determine whether a particular example falls short. This is where I believe consumer associations should be producing the information necessary to help a court, a mediator but more hopefully a decent retailer reach a reasonable decision (for both parties).

Member

The explanation of durability has been quoted numerous times but in practical terms it is not defined for a sofa or a washing machine.

Which? has done two fairly recent undercover investigations using actors who have attempted to get retailers to take action over faulty goods after the warranty has expired. It would be good to repeat this exercise with Which? members with faulty goods and to pursue these cases, through the courts if necessary. These cases could be published in Which? magazine to illustrate how valid claims (no question of abuse or undue wear & tear) can achieve a fair solution.

Member

In practical terms we need to put a reasonable expected life on products with different price bands. This can only be done based on life trials and reasonable expectations. This is where I believe consumer groups could, and should, be contributing. I have given information under washing machines of research done by WRAP that seems to go some way to address this.

Ask, if your £500 fridge freezer with a 1 year warranty fails after 15 months, was that durable?
If your “quality” car, just out of a 3 year warranty and driven carefully for 30 000 miles has a catastrophic failure, is that durable?
You buy a £1000 sofa that has not been abused but collapses after 18 months – is that durable?
I do not believe it is that difficult for reasonable people to put a reasonable expectation on what should be a trouble-free life based on experience of a range of products. But it needs effort putting in to doing it. An expensive failure such as the above that is not down to misuse should not be classed as “bad luck, consumer pays”. the manufacturer has a duty to provide a product that works for a reasonable time, taking price into account.

Member

I think it’s a bit worrying that Sofaland were able to reject a report by the customer’s expert and effectively impose their own choice of expert. Thankfully the retailer’s expert supported the findings of the customer’s expert in this instance, but what a performance adding further stress to the situation. The stakes were high for Sofaland which is why they dug their heels in and made the dispute more unpleasant than it needed to be. They knew that if a manufacturing fault was upheld they would have to write off the sofa [and possibly have to concede other claims] since getting a leather sofa repaired so that it doesn’t show is virtually impossible, especially if it was made in China as so many are these days; the re-upholstery is the easy bit – that can be done in the UK; but getting a piece of leather that will match the rest of the sofa in shade, tone and texture would be very difficult.

A further point is the claim by Sofaland that the excess wear of the arm was due to improper care. I’m not sure what care regime will make a thin or weak piece of leather durable, and conversely what lack of care will make a mark or weak patch spread. Sofas are made to be sat on and the arms to be rested on; to expect people not to rest their arms on the armrests in case the leather stretches would be ridiculous. Leather varies naturally in texture, thickness and strength so it is necessary to select appropriate qualities for the wearing parts like the arms. And when you pay £825 for a sofa you are entitled to expect it to last a lot more than a few months before any distress appears. Leather is not inherently an expensive material [thousands of livestock die or are slaughtered around the world every day] but it can look luxurious and has a quality premium built into the price that is not necessarily justified by the cost of the raw material. The quality of the preparation of leather for upholstery purposes is the critical factor and the manufacturers of leather furniture have developed ways of making lesser grades of leather look as good as the best leather at the time of purchase but it will probably not have the same endurance.

So few Sale of Goods Act claims end up in front of a judge but that is the only way that the question of durability can be effectively resolved after taking into account several relevant factors, including price, product presentation, information and care advice given to the purchaser, and any advertising claims. The cost of going all the way to a trial is prohibitive, and binding mediation is a fair way of reaching a conclusion since neither party can take the matter any further. However, it does mean that the law is not being tested properly and consumers’ rights secured.

Presumably the settlement in Margaret Green’s case made allowance for the period of use and the possibility that the defect could be remedied, but it didn’t exactly leave her in the position she was in before the fault became apparent. A sofa is a statement article and once the owner is aware of a defect it is ever present and commands attention. No relief appears to have been given for that aspect.

Member

It should be reasonably easy to establish whether HomeServe were acting within the law in insisting that HomeServe must act as the expert in Margaret’s case. An expert chosen by either the retailer or the owner of the goods could obviously be biased one way or other.

Member

Longer manufacturers warrantees is the only way to resolve issues re durability of goods. I recently purchased a leather electrically operated recliner chair following a Which? recommendation from HSL that came with a 5 year warrantee. I paid considerably more than Margaret did for her leather sofa but am optimistic that a 5 year warrantee that came with it means what it says on the tin.

I was visited yesterday by a surveyor acting on behalf of John Lewis to measure up for some new cupboards I am having installed and we had a long chat about the issue of responsibility when goods fail under the SoGs Act. I made the point that if manufacturers and not retailers were held more responsible then maybe they would produce more durable
goods and longer warrantees. He agreed with me :-]

Regarding the wear and tear issue, some people own pets which can cause a lot of damage to the arms of armchairs and sofas, particularly cats who are inclined to jump up onto the
arms of chairs and dig their claws in. I assume this was taken into account in Margarets case and the nature of the damage
identified before pursuing the court case in this instance.

Member

Has the code changed for smileys?

Member

Beryl, Yes, it would be the easiest way providing they were not littered with restrictions – they are written by manufacturers so no doubt will not necessarily be “impartial” 🙂 . However until we get warranties that last as long as what we’d regard as a reasonable time our only recourse is to the Sale of Goods Act. There is no sign yet of manufacturers generally providing warranties of adequate length.

Member

😀

Member

I am the lady who had problems with Sofaland it concerns me that large firms can attempt to make it difficult for customers who have a legitimate complaint to have the problems rectified without having to seek redress through the Courts . I would like to thank Which Legal especially Peter Litchfield for all his help and support when I was dealing with this matter
Margaret

Member

Congratulations on your success, Margaret. It might encourage others to take on retailers that deny liability for goods that fail prematurely.

Both consumers and retailers have rights but it should be possible to resolve most problems in an amicable way rather than resorting to legal action.

Member

Margaret, I am pleased your problem was resolved. It is a pity it had to involve legal help before your retailer met its obligations. It is interesting that Which? in this instance used durability as the issue. I would like to see more problems with product durability dealt with as consumer law requires. We shouldn’t have consumer rights impeded once a short guarantee has expired.

Member

Thank you wave change and Malcolm for your comments which are very much appreciated , my husband just wanted to dispose of the suite in the garden . Even a local charity refused to take the suite because it was in such a poor state The gentlemen at the local tip were very pleased to have it as it had an excessive amount of steelwork on the suite.

Member

Well done to you Margaret for sticking to your guns and also your husbands initial reluctance to fight for your cause. Company policies dictate that they make it as difficult as possible so that consumers will give in to their demands and your case is an inspiration to others to keep up the pressure to maintain their rights under the Sale of Goods & Services Act.

Member

Thank you Beryl for your comments it was extremely difficult dealing with this issue as at that time I was also dealing with a very serious medical condition and the added stress did not help my condition.
Margaret