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Jamie-Law
Jamie-Law, Solicitor
Category: Law
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Experience:  Solicitor
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We bought a Clearwell Aguna mobility scooter for my wife

Resolved Question:

We bought a Clearwell Aguna mobility scooter for my wife under two years ago (16 July 2015) for £765 from Clearwell Mobility, Burgess Hill. Its specification in the Aguna User Manual stated "Weight Capacity: 21 stone." My wife was around 19 stone plus at the time. However, under the heading 'Safety Notice' Para. 2.1 of the Manual stated "The maximum weight to be carried is (includes goods) 250 lbs." 250 lbs is just under 18 stone. 21 stone equals 294 lbs, and I wrote a query in the Manual's margin (there are other such queries noted in the margin) about this discrepancy. We were assured that the limit was 21 stone as shown in the spec. We would certainly not have bought the scooter if the limit was below my wife' weight.
Following a number of recent problems with the scooter, we returned the scooter for inspection and if needed service and paid £25 for the work done. We were told there was a problem with the rear axle. More importantly, we were advised that the manufacturer had reduced the weight limit for the scooter from 21 stone to 18 stone and that Clearwell could not assure us of its reliability should we take the scooter for example on a cruise, one of the objectives we made clear to Clearwell before we bought the Aguna.
We have been discussing our options with Clearwell's M.D., including replacing the Aguna with a more robust weight carrying scooter and have in fact identified and tested one which also has the essential requirement of being able to be separated into four parts to enable it to be lifted into the boot of our car. We have indicated that we would prefer to have a used scooter rather than a new one. When asked about the option of a refund if no suitable replacement was found, the M.D. stated that they could not agree to that as the scooter was two years old.
We want to know what our legal position is as it affects prices quoted to us. A figure of just £250 has been quoted as a trade-in for the Aguna. But we think that under the Sale of Goods Act, goods have to be fit for purpose, and selling us (albeit in good faith at the time) a scooter suitable for people below 18 stone to someone over 19 stone does not fulfil this requirement. Although we did not disclose my wife's weight at the time, we did make it clear that 18 stone was insufficient.
What do you advise?
Submitted: 2 months ago.
Category: Law
Expert:  Jamie-Law replied 2 months ago.

Hello my name is ***** ***** I will help you with this.

When did you query the 18st limit?

How much are you seeking to claim please?

Customer: replied 1 month ago.
We queried the 18st limit in the margin of the user manual where it is mentioned (along with other queries we had) before we ordered the Aguna scooter, pointing out that the specification later in the manual said 21 stone. There is no dispute with Clearwell that it was marketed as suitable for 21st. They say the manufacturer later reduced the limit to 18st as stated in the Safety Notice section of the user manual. We accept that Clearwell acted in good faith at the time, but they sold the scooter to us on what has turned out to be a false prospectus and we don't want to be at any financial disadvantage. Being offered a trade-in price out £250 to enable them to sell it for say £450 may be OK in normal circumstances, but the change in the Aguna's specification make the circumstances abnormal as Clearwell can now give no assurances as to its future reliability for use by someone over the new weight limit.As for our claim, we have no particular figure in mind. We do want to be able to say to Clearwell that under the Sale of Goods Act we are entitled in these circumstances to a refund of the original cost to us of £765 in whole or in part because the goods were not in fact fit for purpose..
Customer: replied 1 month ago.
I think our query should be answered without additional cost as it seems pretty straightforward to us.
Expert:  Jamie-Law replied 1 month ago.

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://s3-eu-west-1.amazonaws.com/hmctsformfinder/n1-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 claim is for £10,000 or less it will be a small claim so you will not need legal representation. Over this value you would need representation for trial.

Can I clarify anything for you about this today please?

Customer: replied 1 month ago.
I think I've made it very clear that I do not want to take legal action unless necessary but to strengthen my hand at this stage in negotiating a good outcome. As I've said, Clearwell want to do a deal by replacing our scooter with a more suitable one, so it then becomes a haggle over price. To this end, you have not answered my query: you imply that Clearwell are in breach of the Sale of Goods Act as the goods supplied were later found not to be fit for purpose, but you haven't actually stated this, and that's what I need. Please answer my query as stated.
Expert:  Jamie-Law replied 1 month ago.

Yes they are in breach of:

S.13 Sale and Supply of Goods and Services Act 1982

S.13 and S.14 Sale of Goods Act 1974

Does that clarify?

Customer: replied 1 month ago.
Does that mean we are entitled to a full refund?
Expert:  Jamie-Law replied 1 month ago.

It does, yes.

Does that clarify?

Customer: replied 1 month ago.
it does - thank you
Expert:  Jamie-Law replied 1 month ago.

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Expert:  Jamie-Law replied 1 month ago.

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