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Paging legal eagles....

SimonAHSimonAH Posts: 3,730
edited February 2011 in Commuting chat
Hi all.

I guess I have to be rather careful how I write this so please excuse my vagueness.

I need some advice please on how to haul a company in front of a court and sue them.

A well known high street chain manufacturer / retailer of cycle equipment sold me a piece of own brand equipment that was not fit for purpose and the failure of which caused me to have an epic cartwheel crash before Christmas.

I requested that they replace the (itemised, receipts available) damage to my bike, clothing and accessories caused by the crash to the tune of roughly £1,200. I have not requested compensation for the various grazes and contusions – although I have skin numbness around an area on my flank where I landed that has not gone away, and a large red mark that has likewise remained.

The rejection email received in January denies liability, but at the same time states that the item is not suitable for fitment to my type of bicycle (amusingly the component to which it was fitted is also an own brand item from the same company), something that is not a subtle point by the way and is nowhere mentioned in the fitting instructions supplied with the product. – Although they have said that they will look at amending said instructions.

Following the rejection email they have declined to respond to my correspondence, presumably assuming that I will go away. I have advised them that they have until the end of February to respond; else I will proceed to legal action.

‘Tis now the end of February.

Dear legal folks;

Without being able to go into detail here, but with the given fact that the component failure was the direct and immediate cause of the crash, that the product was correctly fitted for the purpose advised, and that I have a witness (as well as time stamped photographs of the damage) does it appear I have a case? And what is the most cost effective way to get it in front of a bench?

Thanks in advance
FCN 5 belt driven fixie for city bits
CAADX 105 beastie for bumpy bits
Litespeed L3 for Strava bits

Smoke me a kipper, I'll be back for breakfast.

Posts

  • Greg TGreg T Posts: 3,266
    Was it Wiggle?

    they have a lot to answer for . . . .
    Fixed gear for wet weather / hairy roadie for posing in the sun.

    What would Thora Hurd do?
  • SimonAHSimonAH Posts: 3,730
    No, it wasn't Wiggle (who've always given me wonderful service btw)
    FCN 5 belt driven fixie for city bits
    CAADX 105 beastie for bumpy bits
    Litespeed L3 for Strava bits

    Smoke me a kipper, I'll be back for breakfast.
  • Greg TGreg T Posts: 3,266
    You are in the minority . . . .

    Something Must Be Done
    Fixed gear for wet weather / hairy roadie for posing in the sun.

    What would Thora Hurd do?
  • kelsenkelsen Posts: 2,003
    Not a legal eagle here, but I'd say Small Claims would be your starting point.
  • Mr PlumMr Plum Posts: 1,097
    Did you fit the part or was it fitted by said retailer or a professional bike mechanic?
    FCN 2 to 8
  • gtvlussogtvlusso Posts: 5,112
    Spen is the usual fountain of knowledge - he may even get angry about it for you.

    Spoke to the wife on your behalf - she said "Yes, you have a case, however, as there are the intrcacies of self fitment/DIY. There is a certain level of deniability by the company in question". Small claims is a good start.
  • SimonAHSimonAH Posts: 3,730
    Hi guys,

    Thanks for the initial responses.

    Yes, I did fit it - but correctly to the instructions (not rocket science anyway, just two clamps). The important thing is that it is not suitable for fitting to my type of bicycle as it will fail. They have admitted this in writing (yet there is no mention of this in the fitting instructions).

    The bikes to which is is not suitable to fit include just about every modern non-steel road bike. And this is a road bike specific product............
    FCN 5 belt driven fixie for city bits
    CAADX 105 beastie for bumpy bits
    Litespeed L3 for Strava bits

    Smoke me a kipper, I'll be back for breakfast.
  • PufftmwPufftmw Posts: 1,941
    Write a letter of claim, give them 7 days, then if they do not respond you can a) take them to small claims court (£80 or so) or b) give the case to a no win/no fee claims co, who will then add their own charges to the claim and sort it out on your behalf.

    If the they have admitted in writing that the part is at fault, then there's no point of them fighting the claim unless they believe that your costs are not "reasonable".

    Check any small-print that came with the part's instructions.
  • Been a longtime since I qualified legally, and I never practised, so take the following as a bloke down the pub bit of advice rather than an expert.

    I would start by sending them a completed small claims form (http://www.hmcourts-service.gov.uk/courtfinder/forms/n1_0102.pdf dead simple to fill out) and saying that they have 7/14 days to respond to you or you will file it using the money claim online service https://www.moneyclaim.gov.uk/web/mcol/welcome

    Send it by recorded delivery to their registered address which can be found out here: http://wck2.companieshouse.gov.uk/4b1b7fcced464a3037f7382bc99fc48c/wcframe?name=accessCompanyInfo

    At this point they should notify their insurers, indeed you may advise them in the letter to put their insurers on notice that you intend to sue.

    From your side of the story it sounds to me that you have a case, BUT it may be quite difficult to prove that it was their failure that caused the accident rather than you fitting it wrongly - their admission that it shouldn't be fitted to your type of bike would help here I would imagine. However, if there is any evidence that they have made it known that it's not suitable prior to your purchase, that would help them. Is there any way that they would have known what you were going to fit it to? Or was it an anonymous internet purchase?

    My guess is that they will ignore it until something official happens and their insurers get involved. Once insurers are involved, you may well get them settling just to keep the costs down, but it will depend on how much evidence they think you have - the more the better for you.

    Hope the above helps

    Rich
  • dhopedhope Posts: 6,699
    I believe small claims court stuff can be done free (or cheap) online now.

    http://www.hmcourts-service.gov.uk/info ... /index.htm
    https://www.moneyclaim.gov.uk/web/mcol/welcome

    Edit: Oops, didn't notice the above post.
    Rose Xeon CW Disc
    CAAD12 Disc
    Condor Tempo
  • W1W1 Posts: 2,636
    The question is - can you prove (on the balance of probabilities) that the part was fitted correctly and that it lead to the crash? Those are obviously the weak elements to your case.

    Small claims is the way to go if they don't respond. Little risk to you, and they are more likely to settle than want to expend time defending. But bear in mind there is no guarantee that you will win....

    Good luck.
  • SimonAHSimonAH Posts: 3,730
    edited February 2011
    W1 wrote:
    The question is - can you prove (on the balance of probabilities) that the part was fitted correctly and that it lead to the crash? Those are obviously the weak elements to your case.

    Small claims is the way to go if they don't respond. Little risk to you, and they are more likely to settle than want to expend time defending. But bear in mind there is no guarantee that you will win....

    Good luck.

    The fitting aspect is so simple that it is not really possible to fit it incorrectly.

    Thanks for the small claims court stuff guys, I'll start the ball rolling tomorrow.
    FCN 5 belt driven fixie for city bits
    CAADX 105 beastie for bumpy bits
    Litespeed L3 for Strava bits

    Smoke me a kipper, I'll be back for breakfast.
  • dhopedhope Posts: 6,699
    edited February 2011
    Best of luck
    Rose Xeon CW Disc
    CAAD12 Disc
    Condor Tempo
  • greg66_tri_v2.0greg66_tri_v2.0 Posts: 7,172
    edited February 2011
    You won't get reliable advice based on an account which omits the key factual details. I understand you have put it as you have, but the consequence is that whether you have a claim is anyone's guess.
    Swim. Bike. Run. Yeah. That's what I used to do.

    Bike 1
    Bike 2-A
  • bigmatbigmat Posts: 5,126
    edited February 2011
    My legal advice would be to go and see a lawyer. Until you do, I would not go down the small claims procedure route - it strikes me that you will have a lot more leverage to negotiate an adequate settlement if you keep your injuries in play, which by the sound of it have potential to push quantum over the £5,000 mark. Finally, the last place you should want to end up is "before a bench".
  • fossyantfossyant Posts: 2,549
    Without naming the manufacturer - what did you fit and where, if it's not supposed to be fitted to your type of bike ?

    How long ago was said 'part' fitted lots of gaps for us here ?

    You have a case if the component has failed, and it's within what's a reasonable service life, but if you've fitted something that really shouldn't be fitted then it gets complicated !
  • SimonAHSimonAH Posts: 3,730
    fossyant wrote:
    Without naming the manufacturer - what did you fit and where, if it's not supposed to be fitted to your type of bike ?

    How long ago was said 'part' fitted lots of gaps for us here ?

    You have a case if the component has failed, and it's within what's a reasonable service life, but if you've fitted something that really shouldn't be fitted then it gets complicated !

    OK *puts on his careful head*.

    The item in question is a clamp-on aftermarket part that mounts onto a structural part of the bicycle. This method of attachment works fine on a cylindrical tube profile.

    Unfortunately the mounting position on my design of bicycle is a tapered or, if you will, 'bladed' cross section that rapidly narrows vertically from a broad cross section to a narrower one. If, through vibration for example, the clamp band were to move even a microcopic amount downward then all grip is lost allowing the accessory to drop and bring the bike to an instant halt.

    The accessory was almost new at the time of the accident (and not something that is subject to wear). It was fitted in accordance with the manufacturers instructions.
    FCN 5 belt driven fixie for city bits
    CAADX 105 beastie for bumpy bits
    Litespeed L3 for Strava bits

    Smoke me a kipper, I'll be back for breakfast.
  • rjsterryrjsterry Posts: 20,744
    Certain parts of a bicycle frame are almost always tapered in some way - fork blades and chain stays - so any clamp-on part designed to be fitted to these would have to be designed to cope with the tapered or non-cylindrical tube shape.

    That might help or might be entirely beside the point.
    1985 Mercian King of Mercia - work in progress (Hah! Who am I kidding?)
    Pinnacle Monzonite

    Liberal metropolitan, remoaner, traitor, "sympathiser", etc.
  • rjsterry wrote:
    Certain parts of a bicycle frame are almost always tapered in some way - fork blades and chain stays - so any clamp-on part designed to be fitted to these would have to be designed to cope with the tapered or non-cylindrical tube shape.

    That might help or might be entirely beside the point.

    With caveats like that, you're clearly in the wrong job: the law beckons for you!
    Swim. Bike. Run. Yeah. That's what I used to do.

    Bike 1
    Bike 2-A
  • dhopedhope Posts: 6,699
    Greg66 wrote:
    With caveats like that, you're possibly in a less than ideal job: the law may or may not be an option for you!

    FTFY
    Rose Xeon CW Disc
    CAAD12 Disc
    Condor Tempo
  • dhope wrote:
    Greg66 wrote:
    With caveats like that, you're possibly in a less than ideal job: the law may or may not be an option for you!

    FTFY

    Is your name Vroomfondel?
    Chunky Cyclists need your love too! :-)
    2009 Specialized Tricross Sport
    2011 Trek Madone 4.5
    2012 Felt F65X
    Proud CX Pervert and quiet roadie. 12 mile commuter
  • SketchleySketchley Posts: 4,235
    You have said you will take legal action if not address by end of Feb and It's now the end of feb. On the basis that and the fact a no win no fee solicitor is very unlikely to take on a claim they think they will lose, I would instruct a no win no fee solictor to deal with the claim and skip the small claims court. You will find out where you stand very quickly. If they refuse to take it then try a small claims court claim yourself.

    If you have CTC or LCC membership I think this inlcuded legal cover in the event of an no fault accident is included, whilst no third party involved your original description could suggest a no fault accident. Would be intrested to know what they say.

    IANAL.
    --
    Chris

    Genesis Equilibrium - FCN 3/4/5
  • Is your case that the supplier had a duty of care to warn you not to fit the part to your type of bike and failed so to do?

    If so, was it obvious that the part shouldn't be fitted?

    From the description of the accident, are you talking about something getting caught up in the spokes? There really is no need to be quite so cautious about describing the mechanics of the accident itself - you can't defame a clamp.
  • SimonAHSimonAH Posts: 3,730
    Is your case that the supplier had a duty of care to warn you not to fit the part to your type of bike and failed so to do?

    If so, was it obvious that the part shouldn't be fitted?

    From the description of the accident, are you talking about something getting caught up in the spokes? There really is no need to be quite so cautious about describing the mechanics of the accident itself - you can't defame a clamp.

    It is a mudguard that attaches by struts to clamps on the forks and 'floats free' behind the fork - ie no attachment possibility at the brake mounting point.

    I fitted it to bladed carbon forks. Clamps dropped down, guard landed on wheel and immediately got sucked between tyre and fork crown jamming the front wheel solid. Cue acrobatics. 20+ mph to zero in an instant.

    Supplier has stated that the system is not suitable for use with carbon forks, however there is no such caveat in the instructions - and it is far from obvious.
    FCN 5 belt driven fixie for city bits
    CAADX 105 beastie for bumpy bits
    Litespeed L3 for Strava bits

    Smoke me a kipper, I'll be back for breakfast.
  • rjsterryrjsterry Posts: 20,744
    Aha. So it turns out my post was at least partly relevant. Did the manufacturer state why the system is not suitable for carbon forks? They couldn't sensibly claim that it was due to the shape as many steel and alu forks are unusual shapes as well, so I presume there is something about carbon fibre that means that the clamps will not grip the blades properly. Given that carbon forks aren't exactly unusual, even on relatively cheap road bikes, I would have thought that this would need to be made clear in something more than 4pt text at the back of the back of the fitting instructions.
    1985 Mercian King of Mercia - work in progress (Hah! Who am I kidding?)
    Pinnacle Monzonite

    Liberal metropolitan, remoaner, traitor, "sympathiser", etc.
  • OK, well, for what it's worth, this is my view - take it on board or dismiss it as you will.

    Firstly, if you choose to proceed, I would concentrate my claim on that single premise - that the supplier had a Duty of Care to warn you not to fit the guards to carbon forks and failed to to so. This would actually take the standard of fitting out of the equation as it's irrelevant. Your case is that the accident was bound to happen sooner or later.

    Secondly, unless the total damages you claim are greater than £5000 or your personal injury claim is greater than £1000, your case will inevitably end up in the Small Claims Court. That means that costs are (generally) not reclaimable by either side and, consequently, that a no-win/no-fee solicitor isn't going to be interested. On the other hand, the risk to yourself is significantly less - the other side are probably not going to be able to claim their own costs against you even if you don't win. Having said that, preparing your claim is going to take quite a bit of time and trouble on your part.

    As has been mentioned, there is always the possibility of a settlement if you instigate proceedings even if it's only to make you go away!!

    Best of luck with whatever you decide to do.
  • rolf_frolf_f Posts: 16,015
    Manufacturers website makes no reference to it not being suitable for carbon forks - infact, if I have the right product, the QA specifically states that they can be used on the 'majority of road bikes'.
    Faster than a tent.......
  • fossyantfossyant Posts: 2,549
    And most road bikes now have 'bladed' carbon forks. Even two of my steel bikes have ovaled forks and are tapered..... hmmmm
  • I don't know the manufacture of the guards in question, but I use SKS Raceblades which are fitted to bladed carbon forks and there has never been an issue with them. The guards are held firmly in place with a supplied adapter and rubber straps. They have never moved during use. I guess your's are different and fit differently ?
    Planet-X SL Pro Carbon.
    Tifosi CK3 Winter Bike
    Planet X London Road Disc
    Planet X RT80 Elite
  • dilemnadilemna Posts: 2,187
    You really need an independent assessment of the product, examination of how you fitted it to your bike and the completeness of the fitting instructions all in a report provided by an 'expert'.

    I think you might have an uphill task proving that you were not negligent in fitting the mudguard. But this is where an 'experts' report eg a bike shop would come in handy.

    Did the product itself fail or that your fitting of it was unsatisfactory? You might now say fitting was really easy, but obviously it wasn't as the clamp slipped and the mudgaurd jammed in the crown. FWIW it doesn't take an Einstein to realise clamping a bracket onto a tapered and profiled tube might be difficult and not straightforward. Surely some responsibility lies with you making sure that the clamp indeed was secure. If in doubt contact a bike shop. I hear you say "But why!!" And I say "Because for what ever reason the mudgaurd slipped and you ended up going over the handle bars". Are you a Cytech 1 and 2 qualified bike mechanic?

    The retailer and manufacturer do owe you a duty of care which are pretty much laid down in statute as your statutory rights.

    Prior to purchasing the mudguards did you inform the retailer the model of your bike and the type of fork it has?

    I would consult a personal injury solicitor as you suffered injury. They will advise you of the strength of your case and the weaknesses.You aren't going to get this from an internet forum. If we give you totally the wrong advice you can't sue us where as you can a solicitor who advises you incorrectly.

    However if you issue proceedings in the small claims court they might just settle or offer you a nominal amount to go away as the costs for them defending the case will be more than you are cliaming from them.

    Either way you would be best advised calling a solicitor who should give you some general advice about how to proceed.
    Life is like a roll of toilet paper; long and useful, but always ends at the wrong moment. Anon.
    Think how stupid the average person is.......
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