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Guest opinion: The truth about drive on damage and the Consumer Rights Act

Philip Harmer Stormcatcher 2015

Drive on damage has emerged to be amongst the more common defences raised by dealers, warranty and motor finance companies to claims under the Consumer Rights Act 2015, fostered by to some extent by automotive engineer reports.

But what does it really mean ?

The principal is simple, in that it is averred that any damage caused to (usually) the engine and/or gearbox has been exacerbated by the driver continuing to drive the vehicle in the knowledge that it’s compromised; in effect a version of contributory negligence.

However, legally it’s easier said than done.

In the first instance there are some fundamental issues in imputing ‘negligence’ into contracts which can only be achieved if there’s a concurrent duty of care.

While this is going to be the case as far as the supplier is concerned, when you buy and have installed a new central heating boiler or a new set of tyres for example, this is unlikely to be extrapolated to include a duty on a car buyer.

Of course the situation may alter somewhat depending upon whether the vehicle is financed and if so the type of finance agreement, but even then there are some evidential difficulties.

Simply the engine defect, for example, caused its eventual failure and not the subsequent events- the Consumer Rights Act 2015 only provides for remedies following the initial breach of contract.

Furthermore, it is somewhat difficult to aver that the vehicle was ‘driven’ after the engine had failed.

It is true, however that the car dealer or supplier may be able to rebut the presumption that the defect was not present or developing at the point of sale by evidence of the buyers act or omission.

Although again with the defect or cause occurring first in time it is not sufficient to merely suggest the damage was made worse after the event.

One may just as easily suggest that had the car been properly serviced prior to delivery the problem wouldn’t have occurred at all.

Nevertheless there are circumstances of course, where the cause of engine or mechanical failure can be attributed to the driver.

However, the burden of proof rests with the seller and will be made exponentially more difficult if the right checks and balances weren’t carried out before delivery.

Author: Philip Harmer (pictured), a lawyer and senior partner at Stormcatcher

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