IMI Magazine

IMI Magazine

Strict letter of the law

No one working in motor vehicle servicing and repair should be too surprised at a recent High Court ruling where a garage was ordered to pay compensation to the owner of a van with defective brakes which crashed. She was seriously injured and her male passenger was killed.

What made the case unusual was the defence case: While accepting that the van had been booked in for a service, the garage claimed the owner had not turned up on the appointed day. But the judge said there was “compelling” evidence that the garage had seen the van and the brake defect was either not detected or not rectified.

The facts of this case should not be allowed to divert attention from the basic principle here which is of vital importance – if you work on a vehicle as a professional repairer or subcontract work to others, you take on substantial legal liabilities. These are not only to your immediate customer to do the contracted work properly, but also to the general public or subsequent purchasers of the vehicle who may be affected by what you do, and to whom you owe a duty of care.

If there is a negligent breach of that duty of care then you may be liable to pay compensation for any physical injury or loss that results. If that negligence is so extreme that it may be said to be “gross negligence” and someone is killed as a result, then the liability may extend not just to paying civil compensation, but also to criminal liability for manslaughter.

In these circumstances, it is not impossible that a technician who was negligent, as well as his bosses, could be personally prosecuted. In addition, there may be criminal liability under the Road Traffic Act for “supplying” an unroadworthy vehicle if a vehicle is handed back to a customer after repair, service or MOT in an unsafe condition.

Given this legal framework it is not surprising that there have been other similar cases which have, from time to time, grabbed the headlines and caused alarm in the trade - sometimes based on a misconception of the true extent of these legal responsibilities.

For example, there often seems to be a view that the responsibility of the MOT tester goes no further than the narrow requirements of the MOT test regulations. In fact, when carrying out a test, the tester will also be subject to the general law of negligence. This was illustrated in a case reported in 2001, where a garage was found liable to pay compensation to the subsequent purchaser of a vehicle for which it had wrongly issued an MOT certificate. The court took the view that the MOT tester owed a duty of care to a prospective buyer who, he should have realised, would rely on the certificate as an indication of the condition of the vehicle, particularly as the MOT and the sale took place on the same day.

Another garage fell foul of the law later the same year when the suspension failed on a vehicle for which an MOT certificate had been issued over two months previously. The garage was successfully prosecuted for “supplying an unroadworthy vehicle” to the owner when the vehicle was handed back with its test certificate, even though the test had actually been carried out on its behalf by a second garage. Again, this case provoked shock-horror headlines in the trade press, but the evidence was that the car had in fact failed an MOT test by a third garage some months earlier on the basis that the rear struts were corroded. The customer had not had the work done, and the fault had not been spotted by the garage which carried out the second test.

It may seem tough that the garage which had not carried out the test was prosecuted, but the offences under the Road Traffic Act, in common with many other statutory offences, are “strict” – which means you can be liable whether or not there was any fault on your part.

What all these cases demonstrate is that in today’s litigious society the professional repairer has to be meticulously careful about his working practices, his procedures and his records.

The proposed Good Garage Scheme code of practice and the setting of manufacturers’ standards for authorised repairers should help to reduce these types of cases. At the very least, they must surely help to root out the real cowboys, and also remind the reputable part of the industry that complacency about standards is a highly risky strategy.

However, there also needs to be personal commitment to raising standards by all those who work in the repair industry, and appreciation as to just what the repairer’s legal responsibilities are. It’s unfortunate that there appears to be no government support for a licensing scheme which, if rooted in solid education and qualifications, might help in generating just such a commitment.

That need was underscored by the report from the Office of Fair Trading on car servicing and repairs in August 2000 following a random sample of franchised and independent garages. No less than 39 per cent were found to have provided critically unsatisfactory service, some of it potentially dangerous to customers.

With those sorts of findings, the industry should count itself lucky that shoddy workmanship does not account for even more tragic cases hitting the headlines.

Anthea WorsdallEditor of Motor Law – the law review for motor industry managers.