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Drive on Damage and the Law

Drive on damage has emerged to be amongst the more common defences raised by dealers, warranty and motor finance companies against claims to reject vehicles under the Consumer Rights Act 2015, fostered, as least 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 has been compromised; in effect a version of contributory negligence.

However, legally this is 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, given that it may be a supply of services rather than a sale of goods contract, but even then there are some evidential difficulties.

Simply, if the defect, for example, has caused the engine’s eventual failure and not the subsequent events then in this regard the Consumer Rights Act 2015 is in effect “strict liability” only providing for a remedy following the initial breach of contract and no any subsequent act or omission.

This is of course not withstanding the practical difficulties in substantiating that the vehicle was ‘driven’ after the engine had already failed.

Nevertheless, It is true, that the car dealer or supplier may be able to rebut the presumption that the defect was 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.

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

The long and short of it, is the drive on damage is no “trump card” for dealers and in fact uncorroborated reliance on it is possibly more trouble than it’s worth

 

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