Showroom dealership damaged car

[Legal7319]

Hi

I need some assistance concerning a damage to property dispute with a car showroom dealership.

To summarise the events, I sent in my car for a job to be completed. It was difficult for me to arrange the collection as two people needed to attend to collect the vehicle. When I finally arranged a collection and turned up 4 to 6 weeks later (due to work and getting a friend to come with me) I was told the 'key wasn't ready'. It wasn't until another 4 to 6 weeks again that I was able to return to finally collect the vehicle.

Upon receiving the vehicle I noticed damage to the exterior body work that I wasn't familiar with before dropping off the car, the car had been parked under a tree for about 2.5 months. The damage report that was done on the vehicle at drop off was massively understated compared to the in-depth thorough damage report they did after I bought this to their attention at pick up - at least three times as many areas of damaged were identified. They claim the first one was due to 'dirt' which wasn't true.

In a way they have self incriminated themselves by providing such a high discrepancy in the damage report and I'm wondering what the success rate (or holes in the case) that I need to take into account if pursuing this in court. The quote for respray is about £3,500 - half the car's value.

From my view, the dealership had full responsibility of the vehicle once I handed over the keys, despite any comments which I received that they were not taking responsibility (closer to the time of collection) when it became clear their vulnerable situation.

I've dealt with legal cases before and realise the extent to which they are time consuming and stressful. I'm also wondering whether in this circumstance I would be liable for the other party's cost if I lose. Any points of consideration welcome.

I will begin with a few letters to the firm asking for payment, at which point I will expect their solicitors to get involved.

[R0b]

Based on what you've described, it would seem to be a pretty straight forward open and shut case. The onus is on you to show the car's condition at the time of delivery and the state of it upon collection.

As you have two sets of reports carried out by the dealership, one for delivery and the other on collection, ought to be sufficient to prove your claim - even better if there were photographs in each report otherwise there may be some argument around that and whether other factors could have caused the problem. Note for future reference, carry out your own inspection too with photographs and videos as evidence rather than relying on someone else.

A claim for £3,500 would mean that it is likely allocated to the small claims track where costs are limited. Unless you behave like an absolute baffoon with the dealership or your conduct is considered to be unreasonable, you won't be liable for their costs of defending.

One thing I should point out is to make sure you obtain several quotes from a reputable business - 3 should be sufficient to show that you didn't just go for the most expensive one when you could have mitigated the cost. That doesn't mean however, you have to go to some back alley garage. You could, for example, get a couple of quotes each from a dealership, professional respray company, and your local garage who does resprays. As with most things, you tend to get what you pay for.

You are wise to send them a letter before action, summarising the facts leading up to the present day, how they have caused damage to the car, the evidence you intend to rely on and what you want from them to resolve the matter.

If you check out my signature there's a link to a list of templates, one of those being an LBA for faulty car. You can adapt that letter to suit your current situation. If you need any feedback I suggest posting up a redacted draft on here and one of us will look at it.

Tagging Des Amethyst ostell in case I'm not around.

[Legal7319]

Thank you for the response and guidance.

When hiring cars abroad or even locally I always document the condition of the vehicle with videos and photos as my deposit depends on it. I don't have any prior photographs from memory that will have the car before it went in, and given the nature of how quick the job was I felt it didn't warranty one at the time, but lesson learnt.

The nature of my nature of my case however relies upon the damage reports. One issue I may have is producing the original paperwork. The final report was emailed across and I also have the full electronic version of the first. I'm struggling to find the first report in physical copy, but I suspect the dealership will have one on record (unless they've 'destroyed' it to hide evidence). The dealership also gave a good will gesture of swapping over a worn out serviceable part for a new one and fixing another internal cabin issue that was bought to their attention (which they initially refused to look into as part of the job); goodwill as though it was, I could use this against them as given dealerships are the most difficult to get something for nothing from, from previous experience no one does anything unless they're hoping to receive something back in-kind - in my case it was dropping the complaint.

I have already sent in the quotes taken from three garages as you've mentioned, there was no response to my knowledge.

I am wondering whether I should write to them outlining the defence I will be using to take them to court (such as the one exampled above) or surprise them if it goes to court with other oversights on the court day itself? I feel sending them too much information may allow them to better prepare their case if it escalates.

I'm also wondering whether I can use any points in legislation that will govern my rights, I won't be surprised if the next letter I receive is riddled with legal jargon, case law and legislation to put me off.

[des8]

Well lets see what comes back before getting concerned about legislation etc.
If it does proceed to court you won't be able to ambush them with other oversights.... all cards are on the table before it reaches the hearing stage

[R0b]

Just realised I dont have a link to my templates in my signature but the link to the letter is below. You just need to swap out the facts with your own, point out that they had a duty to take reasonable care and avoid damage to the car whilst in its possession.

https://m.box.com/shared_item/https%...fjp8pftjq3rzui

[Legal7319]

Thanks. I will post a copy of my draft here before sending it off

[Legal7319]

Here is the first draft:

Need a proper introduction and grammatical tidying up, but this is it:

From my understanding, the vehicle was delivered to you on X for a recall relating to the repair of the ventilation system. During the vehicle was under your ownership and whilst on your site over a period of approximately X months it acquired damage to the bodywork which you have detailed in your damage report sent to X X via email. In comparison to the initial damage report you have evidence a further X areas of damage that was not present at the time of drop off, nor at the point of the initial inspection.

Efforts were made to retrieve the car at our earliest convenience, and you may recall an attempted collection at the beginning of the year where we were informed the ‘keys were not ready’, which as a result meant another collection had to be arranged due to no fault of our own. As you will appreciate, the collection of a vehicle requires the time of two individuals, and negotiating the availability of time with work commitments is not easily achieved.

In May we received threatening correspondence from a solicitor appointed by your firm which stated the vehicle may be sold to cover the costs of storage if collection of the vehicle was not forthcoming. Your solicitor also levied these unsolicited costs on us without appreciating that a previous attempt of collection was made but refused on your admission. We arranged the collection of the vehicle once again at a major inconvenience to us given the confidence in that your firm may actually action the selling of the vehicle worth approximately £8,500 to recoup a few hundred pounds of unsolicited storage fees.

Upon collection we also noted that the rear tyre that you had deemed as ‘unroadworthy’ was replaced by yourselves, and the ventilation system which was reported to you as non-functioning (which you explained was not related to the recall) was also rectified under no instruction of ours. It is my understanding that you were unable to arrange a delivery of the vehicle due to the ‘unroadworthy’ rear tyre, thus I am perplexed as to why after your decision to replace it still felt the need to require us to collect the vehicle - again, causing the potential delay of ridding the vehicle from your premises on account of your own fault. I do feel, however, the aforementioned rectifications you have performed on the vehicle has been in an effort to perform a gesture of goodwill in an attempt to appeal to us to drop this case against your firm. It is very rare, for large dealerships like yours to receive any service (let alone expensive parts) on a complimentary basis unless a significant problem has occurred wherein the complimentary service offers to redeem the wrong actions of the firm. Therefore, through your action of a gesture of goodwill, and as much as a good will it may have been, you have indirectly admitted liability for negligence resulting in the damage caused to the vehicle.

We have extensive evidence to prove your firm’s liability in this matter, and I have briefly summarised the evidence which we will be drawing upon in court, should you choose the matter to escalate:

1. Strong evidence illustrated from the damage report at drop off and vehicle collection demonstrating damage to the vehicle at collection through your admission;
2. The refusal of the attempted collection during X causing the prolonging of the storage of vehicle on your premises;
3. The refusal of vehicle delivery despite the rectification of the tyre (which made the vehicle eligible for drop off) prolonging the storage of the vehicle on your premises unnecessarily;
4. The rectification act of the rear tyre and ventilation system as an effort of goodwill resulting in indirectly acknowledging liability that a problem has occurred

In conclusion, I understand that you have been sent an average of three quotes that were obtained for the cost of repair to the damaged body of the vehicle caused whilst the vehicle was under your responsibility. The average of these works totals £3,500. We have not heard from you since this was sent in June. We wish to conclude this matter amicably and between ourselves to limit unnecessary spiraling legal costs. Therefore, a payment of £3,500 via cheque is required to the above address within the next 14 days. If no payment is forthcoming, we will, without hesitation proceed to Court and draw upon the strong evidence we have prepared to support our case. Should you dispute any part of this claim then I require you to acknowledge this letter within 7 days and provide me with your full response within 28 days.

Furthermore, I should also point out that under the Civil Procedure Rules, the Court has the power to impose sanctions should you fail to comply. If you ignore this letter or fail to respond within 28 days, I will commence legal proceedings against your firm and seek interest at a rate of 8% per annum in accordance with Section 69 of the County Court Act 1984 together with any other recoverable costs or expenses. We will also bring this letter to the Court’s attention when dealing with the issue of costs and your non-compliance with the Civil Procedure Rules if necessary.

I trust that legal proceedings is not necessary and that we can resolve this matter without either party incurring further expense.

I look forward to hearing from you in due course.


Kind Regards

[Legal7319]

Hi

Any thoughts on the above, looking to post it out this week.

Thanks

[des8]

Well if nothing else the garage could not allow you to take the car in an unroadworthy condition(that rear tyre!) without breaking the law.
It would be an offence for them (RTA 1988 sec 75) to supply (and that includes returning your car to you) in an unroadworthy condition.

[Legal7319]

That was never a point of discussion and wasnt the reason they swapped it for us! But are you saying I should remove that bit?

[des8]

I was only pointing out that regardless, the dealer could not release that vehicle in that condition to anyone without breaking the law.

I do think that you should be more direct in your approach. In other words:
"Vehicle xyz was left in your care on dd mm yy for repair of ventilation system
On collection dd mm yy it was found to have suffered damage to the body work whilst in your care as evidenced in the various damage reports.
Therefore I hold you liable for the damage caused to my vehicle.
I require you therefore put right the damage caused.

Perhaps not quite so abrupt, but I don't think it necessary to mention their solicitor etc as that is not part of your claim


The problem with asking for the amount of the quotations (quotations or estimates?) is that you have not actually incurred that cost.
Your current loss can be quantified as the devaluation of the vehicle, which is not necessarily the same as the cost of correcting the damage

It is of course possible that the dealership have their own in house spray facility or trade contacts who could carry out the work at trade prices.

Tagging R0b

[Legal7319]

I take you point on the tyre, but they also repaired the vent system free of charge. I also think that they changed the tyre towards the tail end of the saga when we had arranged the final collection date and it transpired that we were going to pursue them for damages. Had the car been collected a few weeks after the job was complete, I'm confident they would have still let the car go with the same tyre. That's why it seemed that the exchange was down to goodwill more than their concern of breaking the law. Not at any point did they say we're withholding the car unless the car is replaced which makes me question their intention on this swap.

Yes, perhaps I can revise to be more direct

It was the estimate of work to be carried out, and given the cost, I don't think anyone would front the bill unless they could be sure it was being covered from somewhere.

The devaluation will be a hard one to use to prop up as the foundation of the case. The car value would have depreciated negligibly and they can argue we were the ones who protracted the collection. The damage to property is the basis for this case.

[des8]

I think it would be difficult to win a claim in court for an estimated loss.
You need to show an actual loss, which (other than the devaluation) doesn't occur until you have paid out.
So you should perhaps be pushing them to agree to either pay or arrange for the respray

Also as you have estimates and not quotes what happens if the final price comes in higher or lower?
Do you claim more from the garage or refund their overpayment?

Another problem you may have : did the vehicle have any earlier blemishes which will be corrected by the respray?

[R0b]

I agree with Des around the conciseness of your letter before action and any facts or information that isn't strictly necessary should be omitted. For example, it doesn't appear to me that paragaphs 2 and 3 are relevant to the damage caused to the car, so those can be removed.

FYI Des I've had a look at S75 RTA 1988 and the definition of supply refers to a sale, rather than a repair - not sure that has any relevance here?

Also, strictly speaking the loss is the diminution in value but if the goods can reasonably be repaired, then the damages to be paid is the cost of repair according to what's available on the open market and in fact, the duty to pay those damages is irrespective of whether or not the owner has the car repaired (because the loss is not the cost of repair but the decrease in the car's value). My memory is telling me there's a few cases that confirm this but can't think of them right now.

If it were me writing this, I would be starting with something like Des' comment:

1. On X date I took my vehicle to your dealership to be repaired as there was a recall notice for the model of my vehicle.

2. Prior to handing over the keys, an assessment of the vehicle's condition was carried out by an employee of the dealership. The accuracy of the assement was not disputed.

3. The car was subsequently collected on X date and I immediately noticed additional damage to the vehicle that was not present at the time it was delivered, as confirmed by the intial vehicle damage report on X date. Therefore, I can only surmise that the additional damage had been caused when it was in your possession. For the avoidance of doubt, the additional damage I am referring to is:

<< list damage >>

4. By agreeing to carry out the necessary repairs in accordance with the recall notice, you were under a duty to take care of the vehicle but, according to the latest damage report, this was not the case. I have since obtained several quotes from reputable garages to repair the additional damage all of which are similar in price in the region of £3,500. Accordingly, in order to bring this matter to an end, I am seeking a payment of £3,500 to cover the costs of the repairs. Payment should be made by way of << cheque in the name of xxx, bank transfer to the account details below etc. >>

And so on an so forth. Of course there is nothing wrong with having a lengthier letter, but once you start introducing other facts not relevant to the dispute, it can complicate matters and confuse those dealing with the issue.

[R0b]

Here we go, Coles v Hetherton [2013] EWCA Civ 1704 at para. 27 (see my emphasis):

The first question is: "where a vehicle is damaged as a result of negligence and is reasonably repaired (rather than written off) is the measure of the claimant's loss taken as the reasonable cost of repair?" There can be no doubt about the legal analysis of the general rules. It was summarised by Lord Hobhouse in his speech in Dimond v Lovell at page 406B and the relevant passage was quoted by the judge at [22] of his judgment. Dimond v Lovell was concerned with the recoverability of the cost of hiring a replacement car on credit hire terms after a claimant’s car had been damaged in a collision caused by the negligence of the defendant. But Lord Hobhouse began his analysis with basic principles.

Taking Lord Hobhouse's statement together with statements in other cases:

(1) where a chattel is damaged by the negligence of another that loss (the "direct" loss) is suffered as soon as the chattel is damaged.

(2) The proper measure of that loss is the diminution in value that the chattel has suffered as a result of the negligence of the defendant. This follows the general principle in awarding damages, ie. that of restitution. In Lord Hobhouse's phrase, "this can be expressed as a capital account loss".

(3) If the chattel can be economically repaired, the claimant is entitled to have it repaired at the cost of the wrongdoer, although the claimant is not obliged to repair the chattel to recover the direct loss suffered.

(4) Events occurring after the infliction of the damage are irrelevant to calculating the diminution in value measure of damages. Thus, subsequent destruction of the chattel, or a decision to delay repairs, or an ability to have the repairs done at less than cost or for nothing will not prevent the claimant from recovering the diminution in value of the chattel that has been caused by the negligence of the tortfeasor.

(5) Generally, the practical way that the courts have calculated this diminution in value is to ask how much would be the reasonable cost of repair so as to put the chattel back in the state it was in before it was damaged. In general this is a convenient practice which we think the courts should continue to follow. Only if the sum claimed appears to be clearly excessive will the court be justified in investigating whether that sum exceeds the cost that the claimant would have incurred in having the repairs carried out by a reputable repairer.