How can I prove fault on flipped lid?
Question
In September 2014 I bought a flip front helmet from a shop and in 2015 I noticed it had a fault with the opening mechanism that meant the chin bar lifted while riding and blocked my vision.
The manufacturer acknowledged the fault, replaced the opening mechanism and returned the helmet. But the helmet has subsequently opened again while riding at 80mph. The manufacturer took helmet back again and say there is no fault so they will take no course of action, leaving it to the shop to resolve. The shop has said they will not refund or replace the helmet.
What can I do as I think its dangerous?
AC, Cheshire
Answer
The first thing to say is that your recourse is against the shop, not the manufacturer. If a shop sells goods that are not fit for purpose or are of unsatisfactory quality then you are legally entitled to ask the dealer to rectify the problem. This you did but the problem resurfaced but the manufacturer cannot find a fault.
The Sale of Goods Act states that if a customer wants to reject goods that do not fit the description, they have to do so within a ‘reasonable time’. What is a ‘reasonable’ time is not in black and white and it varies from case to case from just a few weeks from the date of purchase. If you fall within the ‘reasonable’ period you are entitled to ask for your money back. Recent EU regulations state that if an item breaks within 6 months of purchase then there is an assumption that those goods were faulty at the time of purchase unless the seller can prove otherwise.
What it is not clear is whether the helmet is broken or simply faulty (or now fine). The correspondence I have seen does not confirm whether the issue arose within 6 months. As you are not getting the replacement or refund from the shop then you should consider whether or not you wish to pursue the matter in the small claims court. On the facts of this case I am surprised that the shop has not given you a replacement or refund simply as a matter of goodwill let alone any legal obligation that a court may hold exists. I would hope they change their mind on this point if you go down the court route.
You will have to persuade a judge that the helmet is faulty (and the shop may produce the inspection report saying it is not, albeit it one-sided). You could rely on res ipsa loquitur – the thing (i.e. fault) speaks for itself. You may find other examples of the problem on the internet and seek to rely on that as evidence. Ultimately a judge will decide but whether you wish to go down this route when you have admitted in open correspondence that you broke the speed limit is a matter for you to decide. All in all a tricky situation to be in but as I say I would hope the shop changes its stance.
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