One for the Legal Eagles

[scaniaman]

Actually 2. Came across a guy who has a full time P45 job but buys and sells cars as a hobby.

He got a bit uptight with me when I said he would be liable under SOGA as he would be classed as a trader. Right or wrong???

 

 

Garage issues a pass MOT certificate with advisories on a car owned by a trader. Two advisories relate to tyres and marked "DANGEROUS". Should the pass have been given and is it legal for trader to sell car in this condition???

[Conniff]

No1 Right, very very right.

 

It is a criminal offence to sell a car in a dangerous condition without informing the buyer and annotating the paperwork 'spares or repair'.

If the station has given a pass but marked the tyres as dangerous, then the pass certificate will have been issued in error although, more likely if it is a very regular customer, as a favour on condition the tyres are changed before sale. The latter is also an offence and the center could lose their biggest money maker over it should it be reported and proved.

Edited July 22, 2015 by Conniff

[obiter dictum]

As the common get out clause

 

"Sold as seen" or "Spares or repair"

[Conniff]

As the common get out clause

 

"Sold as seen" or "Spares or repair"

 

They like to think it a get out clause, but adding that to a sales document is considered 'an attempt to limit a consumers rights' so has no meaning whatsoever.

[obiter dictum]

I agree goods have to be of reasonable quality unless expressly stated otherwise

 

At the end of the day buying a product is a contract and those contractual terms can have caveats. As long as the consumer is not deceived and any limitation has been describe to the consumer such as "Does not turn on" etc

 

You also have different legislation for a trader and non trader

[j66]

If the station has given a pass but marked the tyres as dangerous, then the pass certificate will have been issued in error

 

Not necessarily, there may not have been a fault with the tyres that's a fail in the testers manual. I've had it before where the tyres have been in such a state with perishing and micro cracking that I would have wanted to fail them but couldn't according to what I'm allowed to fail them on, hence the advisory with the added categorisation of dangerous.

[Conniff]

Sorry, you cannot mark any part of the car as 'dangerous' and allow it on the road. It is either safe or dangerous and should anything happen while it's being driven, you as an mot tester will have already admitted liability by marking it dangerous.

[j66]

If I've advised something, marked it as dangerous and informed the vehicle presenter, provided that I've used the correct test procedures and standards, there's nothing more that I can do. A non functioning SRS system can be potentially dangerous, if the warning light is on I can fail it, if the warning light doesn't work I can only advise it.

 

I can't stop anyone from driving a vehicle away from test, I've seen a failure for a burst brake pipe driven away from test.

 

I'm not liable for what state people drive their cars in, it's up to them if knowingly want to drive a car with dangerous defects, I don't have the power to serve a prohibition notice and seize the vehicle.

 

There are some non testable items that can prove dangerous, an insecure prop shaft on a rear wheel drive car, that could be catastrophic if it let go at 70mph - it's not a testable item.

 

People need to take responsibility for their own actions and maybe consider other road users ahead of their convenience and bank balance.

[Conniff]

There is a big big difference between 'potentially dangerous' and 'dangerous'.

 

If you mark it as dangerous then you need to cover yourself by drawing their attention to it and getting them to sign that they understand.

[j66]

That's why they get the notification in a neatly laser printed document and have it explained to them when they collect the vehicle.

 

The dangerous/potentially dangerous has everything to with context. In the context of having a stationary vehicle in front of you on a ramp, that bald tyre - no problem - that's not going to hurt anyone (unless the steel cords are hanging out of it), use the car on the road in the wet - then it becomes dangerous. That SRS system, you could drive around for years with a defective one, when it's given it's opportunity to do what it was invented for and it fails - that's dangerous.

 

The question that most MOT testers ask themselves is 'would you feel safe driving that car with your family aboard?'

 

The reasons for rejection are quite rigid and you can't manipulate them to fit something that you think should fail, but isn't listed as a reason for rejection. The only other option is to advise and if you feel strongly that it must be fixed, catergorise the fault as dangerous so at least the vehicle presenter can make an informed decision on what action to take.

[Conniff]

The rejection criteria is not so rigid that the tester can't decide on professionalism. It does say after all, if in doubt, then fail it.

[j66]

It does say after all, if in doubt, then fail it.

 

Please give me an official DVSA source for this, then I can use it for any appeal tests that come my way.

 

The mantra has always been if in doubt - pass and advise, I can't fail rusty brake discs, I can't fail brake pads unless I can see them, I can't fail excessively tinted front side windows, I can't fail stretched tyres, I can't fail tyres with 1.6mm of tread, I can't fail headlamps that flash once when the indicators are used and the list goes on.

 

Professionalism comes into carrying out the test using the correct methods and standards, don't get it confused with discretion - that's not in the DVSA vocabulary.

 

The rejection text is all pre written, I can't use the one for a damaged ball joint boot and apply it to the boot on pin joint, they're two different designs of joint, if one gets dirt in it, it'll wear out and could come apart, the other will wear but won't come apart.

 

The MOT isn't a comprehensive vehicle safety check, it's a check to ensure that a list of testable items meet a minimum standard and that standard is quite low.