Smashed Car

[Hughie]

Hi everyone.
I have just joined the forum today, and I have sent in a question as a guest a few minutes ago, which I am going to repeat here, as I am not sure if I followed the right protocol.
I have a very good friend who buys cars from a local salvage yard up here in the North east. He then fixes the cars and sells them on. He does quite well, and he always ensures his cars are fit for purpose. Last week, he put in an online bid for a car he was interested in. His bid was accepted by the salvage dealer, and he went to get the vehicle. However, when he got to the yard, the car had been smashed into with a fork truck, and he was stunned when the Boss of the yard simply pointed to the Disclaimer Notice they have. Surely they cannot get away with this just because of that notice? He is rightfully furious, as the car bears absolutely no resemblance to the vehicle he bought online, apart from it obviously being the same car (if that makes sense)?. He left the car in the yard, but he desperately needs to know if he can do anything legal against the yard. A template letter of sorts would be a great start. Any advise is most welcome and appreciated. Thank You.

[des8]

Hi and welcome.

As a rule of thumb disclaimer notices aren't worth the paper (or board) they are written on.
They don't absolve the publisher from liability if anything goes wrong.

So he purchased a vehicle on line following publication of a description.
Having paid for the vehicle he went to collect it and found the seller (or seller's employee) had damaged the vehicle with a fork lift truck.
Salvage operator refuses refund.

Suggest a letter (sent 1st class with free certificate of posting) setting out the position and requesting return of monies paid within two weeks.
Make it clear that if the money is not returned court action will be initiated without further notice.

[CLL1]

Hi and welcome.

As a rule of thumb disclaimer notices aren't worth the paper (or board) they are written on.
They don't absolve the publisher from liability if anything goes wrong.

So he purchased a vehicle on line following publication of a description.
Having paid for the vehicle he went to collect it and found the seller (or seller's employee) had damaged the vehicle with a fork lift truck.
Salvage operator refuses refund.

Suggest a letter (sent 1st class with free certificate of posting) setting out the position and requesting return of monies paid within two weeks.
Make it clear that if the money is not returned court action will be initiated without further notice.

Disagree re: disclaimers (a.k.a. terms which seek to limit or exclude liability) - they're quite a useful tool to limit or reduce one's liability but, in this scenario specifically, I cannot see that it would help the yard owner keep cash for goods he can no longer supply. That would either be unfair (if acting as a consumer) or unreasonable (if acting as a business).

[des8]

To be clear i was referring to disclaimers which are posted on garage (or salvage yards) walls
If the salvage operator has been negligent that disclaimer notice is worthless.

By law one cannot exclude liability for negligence which causes death or injury, but in cases of loss or damage to property a disclaimer may be effective so long as it is reasonable in all the circumstances.

Sticking a note on the wall, or buried in a mass of small print where it will not be noticed is not normally accepted as reasonable.

[CLL1]

A notice posted to a wall is perfectly fine also - this is precisely how most terms are effected in public instances such as car parks.

There is no mention of exclusion of liability for death or PI so that isn’t relevant to the circumstances.

The rest of your comment (which wasn’t in your original comment) is, of course, correct.

[Hughie]

Thank you. Much appreciated. I will pass the comments on.

[ostell]

But if the disclaimer is not on the website when the car was purchased then it cannot be part of the contract. It is immaterial if it is posted on the wall when the car is picked up

[des8]

Any possibility of posting the wording of the disclaimer, and where it was published (website/wall etc)?

[CLL1]

But if the disclaimer is not on the website when the car was purchased then it cannot be part of the contract. It is immaterial if it is posted on the wall when the car is picked up

Quite.

[Hughie]

Hi everyone.
Sorry for the delay in getting back, but the plot thickens. My friend visited the yard again yesterday and informed the Manager that he had lost Ł500 on the car due to their employee smashing into it on the fork truck. The Manager shrugged his shoulders and smugly said, "That's the risks you take. Nothing to concern us." I would just love it if someone has some kind of template letter I could send to this Bozo on behalf of my friend. This guy is basically saying that his employees can ride around without any concern for safety and not be penalised. Surely this cannot be right, particularly in this day and age. Any templates would be most appreciated.

[Hughie]

Hi again. I have just been reading all the comments left, and I will hopefully be able to cobble a letter together. However, if anyone knows of any Statutes or similar I can throw into the mix that would be really useful.
Thank You.

[des8]

Would still like to know what that disclaimer actually said.
If it was a blanket disclaimer it would be an unfair term of no effect. This is because a blanket disclaimer would exclude death and injury.

post 2 is a starter as it would be describing the claim and what is required to rectify.
he could use the Consumer Rights act 2015 as the goods were not of satisfactory condition or as described when delivery took place
Sec 29 PASSING OF RISK;
(2)The goods remain at the trader’s risk until they come into the physical possession of—
(a)the consumer

[ostell]

As the car has been purchased then the trader has a duty of care to purchaser until the car is collected

[Hughie]

[QUOTE=des8;n1463368]Would still like to know what that disclaimer actually said.
If it was a blanket disclaimer it would be an unfair term of no effect. This is because a blanket disclaimer would exclude death and injury.

post 2 is a starter as it would be describing the claim and what is required to rectify.
he could use the Consumer Rights act 2015 as the goods were not of satisfactory condition or as described when delivery took place
Sec 29 PASSING OF RISK;
(2)The goods remain at the trader’s risk until they come into the physical possession of—
(a)the consumer

[Hughie]

Hi and thank you. I am not exactly sure about the precise wording of the disclaimer, but the above information has definitely given me room to put something together and send it to these people. Thank you everyone. Genuinely appreciated.