Emotional distress in small claims for faulty goods

[elsa123]

Hi I purchased a fish tank with parts that were described as brand new. I saw it before buying and the outside of this filter looked new to me. However when I got it home and opened it up the whole thing was messy and bacteria laden. My other tank had broke and so I got emergency delivery same day of the tank at a considerable expense. I could not get the tank up and running as none of the local shops I went to sold the replacement parts. The guy at the fish shop said the sponges were so worn and dirty that without new sponges it would not work. It was advertised as fully functional and I would have never bought it if it was spares and repairs.

My fish are now dead and I have autism and these fish were therapeutic for me. I had a strong bond with them and now they are dead my psychologist has noted a significant deterioration in my welfare. In fact my fish dying is more upsetting to me than losing £800 on a non-functional tank. I would pay another £800 just to have them back.

The vendor has refused to collect the tank as he does not want it back. He is a private seller not a company. I have sent a pre-legal letter and given him 14 days to collect the item but he sent me a text telling me never to contact him again.

In 14 days I have 2 options: sell tank for spares and repairs and deduct that amount of small claims cost, or get the tank delivered back to his house (I will need a removals firm as it is too big for a car) and then recoup the cost of delivery at court.

Please advise on whether I should get the tank dropped back off at his house or sell spares and repairs and deduct amount. Please also advise if I should claim emotional distress. My psychologist has said she will write a court report if I need one.

[MissFM]

Re: Emotional distress in small claims for faulty goods

Hi Elsa and a warm welcome to LB,

I'm so sorry to read your story - how terribly distressing to lose your fish this way.

There are many experts in consumer affairs on here and you will receive excellent help and support, whatever you decide to do.

In the meantime, my opinion, for what it's worth, is that it's stressful going to court and your opponent sounds rather an unpleasant piece of work. Unless you feel particularly strongly that you want to take him to court, I would cut your losses and sell it on - either stating that it needs disinfection and new sponges in the ad or, as you suggest, sell it in parts.

Good luck.:hug: xx

[elsa123]

Re: Emotional distress in small claims for faulty goods

The tank cannot be disinfected because cleaning chemicals are toxic to the fish.

I am 100% taking this to small claims. The vendor simply thinks I will go away but no chance.

I just want to know if I should get it transported back to his house or sell for spares and repairs and then deduct any earnings I make there from the bill.

He is hoping I will just go away. He has ripped me off and I am not having it.

[MissFM]

Re: Emotional distress in small claims for faulty goods

Good on you, Elsa!:yo:

In that case, I would suggest that you sell the equipment yourself. Even if you get a judgment against him it might take a lot of time and effort to enforce, and at least that way you will recoup some of your money.

See what others think. x

[elsa123]

Re: Emotional distress in small claims for faulty goods

It will be easy to enforce as he is a homeowner so he will not want a ccj. Already checked on land registry

[MissFM]

Re: Emotional distress in small claims for faulty goods

You've certainly done your homework!

I wasn't so much thinking "can't pay" as "won't pay", but you may be right that he will want to avoid a CCJ, in which case he may settle out of court.

Wait for someone who is up to speed on court procedure.

I think if you are going to claim damages in small claims you have to be able to itemise actual losses. You will not get "punitive damages" in a civil court in this country.

Can you quantify the distress you have suffered in crass financial terms? ie loss of earnings, expense of therapy etc..

[elsa123]

Re: Emotional distress in small claims for faulty goods

There is no extra expense of therapy. I see my psychologist once a month and it costs £75 a session. Cannot get help on NHS. Despite being sectioned twice (where they hold you against your will for being very ill) I am deemed not ill enough to need a psychiatrist. I had a psychiatrist until 2013 but then they had all these cutbacks and everyone but the very sick got discharged from clinic.
Loss of earnings would be difficult to claim as I am self-employed. It has just meant that I have had to work until 9 pm a few nights as I had to spend a few hours in the day sorting all this pickle out. I am no poorer as a result, just missed some time relaxing with my husband who is also my carer.
On one hand I want the satisfaction of dumping the tank of death on his driveway and ruining his night, however this will mean arranging the removals men. I also think I may have a better case at small claims if I can show the item has been returned.
I can claim for death of the fish, however a court of law will only award me £2.95 per fish as that is what I bought them for but to me they were family members and were worth an infinite amount more than that. In fact I cannot even bring myself to claim for their deaths as that would mean I would have to write down such a pathetic amount in a court claim and it is disrespectful to their memory.

[des8]

Re: Emotional distress in small claims for faulty goods

Hi and welcome.
I would instruct the seller (by "signed for" letter) that he can arrange collection, in the same "letter before action" that you will be sending him.

Certainly you could include a claim for personal injury (in the category of emotional distress) following breach of contract.
However generally the courts do not entertain such claims as the concern is that allowing such claims in simple cases would open the floodgates of litigation.
BUT there are exceptions, and your situation might IMO fall into that category.

[stevemLS]

Re: Emotional distress in small claims for faulty goods

It is very rare to be able to recover losses for distress in English law.

Whilst I really do appreciate that the fish were very dear to you, a court is not likely to take the same view.

[elsa123]

Re: Emotional distress in small claims for faulty goods

I put he has 14 days to collect and it got recorded signed for. I got a template letter off the Citizen's Advice website and filled it in. I doubt he will collect. He has received the letter by now and I have had no response.

I sent him a text a few days back and he texted do not contact me again so am just sticking to letters now as if I text him what I want to express, which would contain a giant string of swear words, this would go against me in court.

[MissFM]

Re: Emotional distress in small claims for faulty goods

Do you intend to represent yourself in court?

It would, IMO, be a good idea to see a solicitor, even if its just for the "free" first half hour that most offer, to get a totally dispassionate and realistic view of your case.

[elsa123]

Re: Emotional distress in small claims for faulty goods

Do you intend to represent yourself in court?

It would, IMO, be a good idea to see a solicitor, even if its just for the "free" first half hour that most offer, to get a totally dispassionate and realistic view of your case.

I want to represent myself. I have a friend who is a solicitor and he says lawyers are not welcome in small claims and often just having a lawyer there can make the judge take a dim view of your case. As he is a friend I am sure he will give me some free advice.

[elsa123]

Re: Emotional distress in small claims for faulty goods

I would love to go on Judge Rinder to be honest, but I run a small business and none of my customers know about the autism as I keep it well hidden (although I think one suspects because he keeps asking me about Asperger's which is the type of autism I have, but when he asks I just say my gran had it, which is true, I do not mention me).

Judge Rinder is my favorite TV show!

[des8]

Re: Emotional distress in small claims for faulty goods

I want to represent myself. I have a friend who is a solicitor and he says lawyers are not welcome in small claims and often just having a lawyer there can make the judge take a dim view of your case. As he is a friend I am sure he will give me some free advice.

Lucky you and too true!

[elsa123]

Re: Emotional distress in small claims for faulty goods

By the way des I love your dog photo! Is it an Afghan Hound? They are the supermodels of the dog world! All my three rescues are cross breeds.