Legal Liability
Don’t get caught out!
Repairing road vehicles inevitably carries an element of liability. If we make a mistake on a repair job and someone has an accident resulting in injury, or – heaven forbid – fatality… well it just doesn’t bear thinking about. But what about the MOT? And then there’s the consumer angle. A lot to think about. So what is our liability as Tester, Authorised Examiners and vehicle repairers?
Our Editor looks into this tricky area…
You’d think, wouldn’t you, that if you’ve properly Tested a vehicle, any safety faults in non-testable items aren’t your problem? If so, you’d be wrong! You could, without knowing, fall foul of the Supply of Goods and Services Act 1982 (SGSA for short!) which says we must always take ‘reasonable skill and care’. So if a Tester doesn’t spot a glaring non-MOT problem, say a worn propshaft UJ which fails and ‘pole vaults’ the vehicle, there could be a liability… But is that reasonable?
Reasonable
It all hinges on “reasonable”. If the average ‘reasonable’ Tester would easily see the worn UJ, then if you miss it and problems strike later – there’d be trouble. But if it is hard to spot and the Tester has to go looking, it’s probably not reasonable to expect him to search for it. You must not be ‘blinkered’ saying “…it isn’t in the MOT so it’s not my business …” If there’s a problem, it’s obvious and safety related – then like it or not, you must point it out.
Corrosion
VOSA will re-visit a corrosion issue on a disciplinary basis up to three months after an MOT, and will penalise you if they believe a ‘passed’ item was corroded to excess at the time of the Test. But what about wider legal liabilities? There was a court case last year where an MOT pass was issued on 18th September 2000. Six months later, on 18th March 2001, due to excessive corrosion, the suspension broke away from the car whilst travelling at speed on the M3 motorway. A passenger was thrown out and died. At the inquest the victim’s family engaged metallurgists who testified that the corrosion should have been apparent during the Test six months earlier. They wanted a verdict of unlawful killing. At the hearing VOSA Officials testified in defence of the Tester and a verdict of accidental death was recorded – the Tester was off the hook.
Advisory notes
This is where advisory notes make a big difference. The MOT criteria for checking corrosion is basic to say the least, so make out advisory notes in all situations, especially if there’s evidence of surface corrosion in a critical area, and you have passed the item – suspension attachment points being a typical example. You can then prove the vehicle presenter was made aware of the problem and chose to ignore it.
MOT repairs
Most Testing Stations have MOT repair facilities and when customers say “…yes please, do the repair.”, there’s a contract between the motorist and the garage. As retailers we have a legal duty to carry out the work with ‘Reasonable Skill and Care’ – that SGSA Act of 1982 again. As an employer you’re responsible, by and large, if your staff don’t do the job properly. So, like it or not it’s on your neck too – in legal terms ‘vicarious liability’. Only in unusual circumstances could you get ‘off the hook’. Maybe the customer insisted on using that technician against your wishes. Perhaps the technician didn’t do specifically what you instructed. This also applies if you take the job to another specialised repairer on a sub-contract basis. So make sure you have quality control systems in place and a sound insurance policy!
Negligence
You’re also liable to people you’ve never met, did no work for, and weren’t even driving the vehicle. This is the law of negligence. Technically it is called a ‘tort’, roughly translated as a ‘hurt’. It works like this; if you haven’t done the job properly, and it is foreseeable that if an accident results, then somebody could be injured – somebody in another vehicle, cyclist, even a pedestrian – then you could be liable. You have what is called a ‘general duty of care’ to act with reasonable skill. If you breach that duty by not doing the job properly, and somebody suffers a loss, then you are liable in negligence. And if death or personally injury results, you can’t get out of it. Contractual terms to get out of negligence claims are simply voided by the courts.
Looking after customers’ vehicles
Here the MOT is the same as when the vehicle is left for repair, and there’s some overlap with the MOT disciplinary regulations. You can’t get customers to sign a disclaimer that says if anything happens to a vehicle during an MOT then you are not to blame. Not only will that fall foul of VOSA’s rules, it would also be deemed an ‘unfair contract’ in law. This also applies to general repairs. But what if something fails during a Test because it was already faulty? Some years ago in our editor’s own MOT garage a customer arrived with two vehicles, his own, and a VW ‘Beetle’ driven by his wife. During the brake Test on the Beetle, the front to rear metal brake pipe beneath the carpets failed. The customer was furious, accusing us of failing the car to get work in the workshop. To calm him down we offered to fix it free of charge. Amazingly he refused and insisted, despite our warnings in front of witnesses, his wife drive it home – without any brakes! We asked VOSA how they would react if this man had complained to them. They said they would point out that in this case the MOT had performed its road safety role, and prevented the fault being discovered whilst driving and causing an accident.
Customer care
Of course, much of this is about customer care. The best bet is to take the hit on the chin, fix the problem and enjoy all those extra customers coming into the business that the customer recommends because he was treated so generously! That’s ‘advertising’ you can’t buy. When a customer gets all worked up, expecting a fight, and hears “…no problem sir, we’ll fix that free of charge…”, well, here’s a story he just has to tell all his friends…
Wider issues
In this article we have attempted to highlight the kinds of risks which the owners of Testing Stations could face rendering them legally liable in a range of situations. However in an article such as this it is impossible to provide fully detailed information to counter every conceivable risk – and those of our readers who are members of a trade body will have access to professional services in that respect. The key message here though is to make sure that you and your staff always take reasonable skill and care by having good quality control measures in place, that you have carefully assessed every risk, and finally, that you have sound insurance cover for all and every eventuality – it will sure help you sleep nights! With thanks to the Retail Motor Industry Federation in the compilation of this article.
Full story and pictures in MOT Testing 47, November 05.