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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I used a car wash machine recently on a petrol station forecourt.

Resolved Question:

I used a car wash machine recently on a petrol station forecourt. The machine ripped both my wing mirrors off the car. Estimates from the main dealer for the replacement of the parts equate to £554. The incident was reported to the staff who recorded the details on their incident report form which was signed by a staff member and of which I have a copy.
The owners of the forecourt are refusing to pay anything on the following grounds.
1. They state they had the machine inspected the day after the incident, (they refer in their letter to the inspection report but did not enclose a copy) The inspection report did not identify a fault. They are therefore claiming that they were not negligent.
2. They have a sign inside the car wash itself which states that "We do not accept liability for any injury or damage howsoever caused by direct or indirect use of this machine.
My question is whether it is worth pursuing the claim in the small claims court on the basis of:
1. My vehicle complies with all the requirement of suitability for use of the machine posted on the signs. The fact that the machine damaged my vehicle proves that it malfunctioned at least on this occasion. The fact that the (non independent) engineer could not detect a fault is not my concern. I had a reasonable expectation that the machine would not cause damage to vehicle when I contracted to use the machine.
2. The liability disclaimer is an unreasonable contract term.
PS Would you consider it bad practice for a lawyer to try to intimidate a potential claimant from pursing a claim stating that "if the court finds in our favour you will be liable for paying our legal costs" when this is most unlikely to be the case in the small claims court.
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this. I am sorry that your car was damaged

Alex Watts :

You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.



If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.



The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.



If the matter is defended it will be set down for a trial. If the claim is for £10,000 or less it will be a small claim and you will not need representation.

Alex Watts :

Regulation 5 of the Unfair Terms in Consumer Contracts 1999 states:

Alex Watts :

(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.


(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

Thank you for your prompt response Alex. However my question was not related to the smalls claims court process nor to the details of the Regulations both of which I obtained in two minutes from Google. Interesting enough two minutes being the amount of time it took you to copy and paste from the same source also. Gotta love a happy coincidence eh?

Customer:

Sorry, premature Send. To clarify, I was requesting a legal opinion as to whether a sign that disclaimed liability for damage to property was likely to be regarded by the Court as an Unfair Term. In your opinion, does the garage owner disclaiming liability create "a significant imbalance in the parties rights and obligations? Do I have to prove they were negligent or does the uncontested fact their machine damaged my property prove negligence.

Customer:

PS - I've just re read my first comment above and it appears a bit sarcastic in tone. My apologies. (It's late and I'm tired). I do feel however that your original response (I paid extra for a "detailed" response) did not really address the questions in my original submission. Maybe I was expecting too much? Regards Steve

Alex Watts : In terms of exclusion clauses the court can consider whether this is an unfair term.
Alex Watts : Further there is something called the Red Hand Rule. That is where Lord denning siad that the more onerous an exclusion clause the more the person relying on it should bring it to the attention of the other side and in some cases have big red lines pointing at it.
Alex Watts : That was the case of J Spurling Ltd v Bradshaw.
Alex Watts : Does that help?
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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