UK Judge says that ETM is not fit for designed use.

Andy in the U. K. took a Volvo dealer to a small claims court to recover the cost of the replacement of the ETM. He was the second owner of a vehicle that was out of warranty. His argument was that the part was not fit for the intended surface. The judge agreed and Andy won his case. You may want to try his approach.

On December 5, 2006  Andy wrote,

Don, I have now received payment from Hapstead Volvo as instructed by the court. So I am happy to go public as it were.
    The case was heard in a system in the UK called the small claims court. This is intended to allow people who may have a grievance with a company to get recourse, without it being an expensive process. In this case I have sought free legal advice and the advice of a friend who is a trading standards officer.
     On the court day I represented myself and Hapstead Volvo the defendant represented themselves. In terms of legal presidents, a judgment in the small claims court does not qualify. However if I have been able to win, there is no reason why the judgment in my case cannot be repeated elsewhere, and I am hoping this will encourage people to try. The more people that do, the more likely Volvo are to do the right thing and stop charging people for what is their problem. As a consequence they may also consider a fix that is permanent.
     I explain this bit in order not to over state the significance of my case. I also want to be clear to anyone looking at doing what I have just done, that this is not cut and dry in legal terms and my winning does not guarantee success at another court on another day. What this judgment represents in my opinion is a triumph for common sense and what is right.
     I would encourage anyone else thinking about doing this to go for it, as I think and obviously at least one judge agrees that Volvo are in the wrong on this. The more times this happens the more likely Volvo will be to back down and just fit the part going forward. But only do so if you are prepared and can afford to lose.
     Whilst I am not a legal expert I am happy to give any information that I can to help anyone who wants to take legal action. I would always advise them to take legal advice as well.

Anyway the details:
Court : Horsham County Court
Claim Number : 6QZ59691
Judge: District Judge Taylor
Claimant: Andrew Worthington
Defendant: Hapstead Gatwick
Claim:
My case was based on the Sale of Goods Act 1989 and the following statement was presented as my evidence:

     When purchasing my Volvo V70 from Hapstead Volvo, safety and reliability were both stated as key requirements for my purchase. The salesman at the time assured me that I had nothing to worry about with a V70. Ironically he also advised me to opt for the new shape V70 as this was more advanced and safer, what I did not know was that this model was the first fitted with the Electronic Throttle Module (ETM).
     On the 22^nd of July 2006 I started to experience problems with my Volvo V70, whereby the car was misfiring and the message “Reduced Performance” was displayed on the dashboard. This error message changed to “engine system service urgent” by the time I had returned from my journey.
     On the 24^th of July the car was booked into Hapstead Volvo to be looked at on the 31^st July 2006. As I had read articles on the internet relating to this problem I also at this time discussed my expectation that I should not receive a bill for the repair to be carried out, I also phoned Volvo Cars Customer service as Hapstead were not prepared to drop the charge and also to attempt to get them to speed up the repair as the vehicle was unusable.
     When the vehicle was looked at on the 31^st of July, the throttle housing was cleaned and a software upgrade applied to the ETM. The vehicle appeared to be fixed, but 2 days later the problem reoccurred and after being off the road again for 2 days the ETM was replaced on August 4^th 2006.

     Prior to the final repair I had discussed with Hapstead on 3 occasions that I would take legal action against them if they insisted on charging for the repair. On 3 occasions I had similar discussions with Volvo Cars UK Ltd. Unfortunately these discussions led only to a reduction of 30% in the cost of the repair “as a gesture of good will”. The bill was paid under duress as I believed the car would not be returned if I withheld payment.
     I have subsequently written 3 times to Hapstead Volvo requesting a refund for the cost of the repair and compensation for the loss of use and the time I have wasted taking advice and preparing my case for the refund.

     The first letter was responded to by Volvo Cars after an acknowledgement from Hapstead, this merely repeated their opinion that they were not responsible for the problem. The second letter received no response and the third was only responded to after legal action had been taken.
     In any case it has become apparent that neither Hapstead nor Volvo cars are prepared to accept their responsibilities under the sale of goods act or as a responsible manufacturer.

The Sale of Goods Act 1979 states, in section 14 sub section 2b:
    For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods—
               (a) fitness for all the purposes for which goods of the kind in question are commonly supplied,
               (b) appearance and finish,
               (c) freedom from minor defects,
               (d) safety, and
               (e) durability.

I am making a claim for the refund of the cost of replacement of this part on the basis of the act, for the following reasons:

• Fitness for all the purposes for which goods of the kind in question are commonly supplied
  • As the electronic throttle module fitted to a car replaces a cable throttle arrangement one would expect it to last the life of the car, as a cable one would. And yet this component on the V70 has a failure of 94% before 100,000 miles (see appendix 5 - Failure rate analysis Volvo Cars North America – Page 24).
     
• Volvo Cars have even commented in an internal memo (see appendix 4 – Internal Volvo report – Page 22):

The current version of the MM ETM is improved over the earlier version but still as an unacceptable life expectancy”

• Safety
  • Volvo sells their cars on the basis of safety. The implications of a partial or total failure of this component on a car and it’s occupants could be severe.
     

This component controls the speed and acceleration of the vehicle; if it starts to go wrong the vehicle can accelerate or decelerate rapidly without warning or in severe cases cause the engine to cut out completely.

A small number of incidences where this happened could be considered to be acceptable, but a 94% failure rate is not!

• Durability
  • Volvo have in North America extended the warranty on this component to 10 years or 200,000 miles. This would indicate that is what Volvo believes the life expectancy of this component to be. My vehicle had done 60851 miles at the time of the replacement, not even a third of the 200,000 miles or half of the 10 years.
  • I do not believe that any consumer would agree that this is an acceptable average life for a component of this sort on a vehicle of this value. Clearly this is also a view shared by Volvo, as they state in their recommendations (see appendix 4 – Internal Volvo report – Page 23):

“VCC needs to develop a service replacement for the Magnetti Marelli ETM that will meet customer expectations for life expectancy and trouble-free operation.” 

    As I have already stated in my previous correspondence I do not accept that because the component has lasted the manufacturers warranty (although I have no way to know that it has not already been replaced) and the further 1 year warranty offered by Hapstead, it has therefore demonstrated acceptable durability. Legally I have been advised there is no statute of limitation on this, nor indeed does a warranty constitute the start and end of a companies liability.
     The attached documentation clearly proves that the ETM module on the V70 was neither fit for purpose, safe or sufficiently durable for it’s application. The documents also demonstrate that this is not an isolated issue and that the problem is not confined to the USA. I have the old ETM from my vehicle and the box the new part was packed in, the latter confirming that the part fitted in the UK is the same as that fitted in the USA.
     As a result of this issue I was without the use of the car for a total of 9 days and no courtesy car was available or offered on either occasion. In recognition of the fact that no hire vehicle was obtained for this period, but recognizing the considerable inconvenience this caused, the claim being made is for considerably less than the cost of a hire car.
     I am also claiming for a proportion of the time I have expended to pursue this claim. The investigations I have undertaken and research into this issue would have been completely unnecessary had Volvo Cars and Hapstead Volvo done what they must know to be the right and legal thing to do.

What the defence said:
    The defence’s statement was as follows:
     Bala Warran of Hapstead Gatwick, Keepers Corner, Burstow, Horley, Surrey RH14 9RR will say: Hapstead Gatwick is an Authorised repairer and a dealer for Volvo Cars UK. Hapstead are not the manufacturer of Volvo cars. Hapstead Gatwick as a retailer of Volvo Selected user car had a previously owned Volvo V70 model registration number Vxxx xxx first registered on the 11^th February 2000 with 42,748 miles available for sale in September 2003.
     A Worthington on the 28^th September 2003 purchased the above-mentioned car with a 1yr/20,000 mile extended warranty under the Volvo selected used car programme. Hapstead Gatwick were unaware of any fault with Electronic Throttle Module (ETM) at the time of sale. Mr Worthington informed Hapstead Gatwick of the fault in August 2006, some three years after purchase. The vehicle has now covered 60,789 miles.
     On the affected models, V70, S60, S70, S80, C70 produced between MY 1999 & MY 2002, Hapstead Gatwick have sold 688 new and used Vehicles. We also have a further 484 vehicles that we service and maintain on our database. This equates to a total of 1,172 vehicles on our database. Between December 2002 and 15/09/06, we have fitted 40 units to those vehicles on the database, giving a repair/ failure rate of 6.59%.
     Hapstead Gatwick, as an authorized repairer and dealer for Volvo Cars, carries out maintenance and repairs for Volvo cars. Any manufacturing faults identified by the manufacturer are repaired under the terms of the warranty, 3yrs/60,000 miles from first date of registration. All preowned  cars sold by Volvo dealer are covered by the terms of the Volvo selected used car extended warranty.
     Mr Worthington’s car fell outside the terms of the warranty due to the age of the car, now some six years old. Hapstead Gatwick and Volvo Cars UK operate goodwill payments to customers with unexpected repairs. On this occasion Mr Worthington was offered and accepted a contribution of 10% from Hapstead Gatwick and 20% from Volvo Car UK towards the replacement of the electronic throttle module. Mr Worthington paid the balance of his final invoice (31523215) of £456.21.
     Hapstead Gatwick do not accept the claim made by Mr Worthington under the sale of goods act. Motor Vehicles are complex machines with hundreds of moving parts. The manufacturer takes great deal of care through research and development, testing and through to final production. Manufacturers offer warranty to ensure peace of mind to buyers in the early life cycle of new products. The dealer offer extended warranty policies on pre-owned cars to second and subsequent owners during their first year of ownership. Hapstead Gatwick has done everything possible to ensure that they comply with the trading standards and the sale of goods act.

     Attached to this statement were a number of letters of correspondence to me and  a letter from Volvo Cars to Hapstead Volvo outlining the companies position on this matter.

What the Judge said: As no transcript is available the following is an honest summary of the judges comments:
     He began by explaining to Hapstead that the issue being discussed was not one of whether or not the Car had outlived any warranties on it but a matter of whether or not the ETM was of satisfactory build quality and durability given its purpose. He indicated that in his opinion this was a component that should never fail in the normal life of the car as the consequences could be catastrophic.
 
     Hapstead defended Volvo’s position by stating that the vehicle failed safe.

The judge continued however to agree with my position that this component should have lasted considerably longer than it had. He also asked whether or not there were circumstances which could occur in which the use of the vehicle could contribute to the early failure of the component.

     Hapstead explained that short journeys were more likely to speed up the failure of this part. I was then asked how the car was used. I explained it was used for short journeys, but that I did not feel that was an argument for exonerating Volvo as this was fairly typical usage to a large part of the population. The Judge again agreed with my position.

The Judgement
     In summarizing the Judge stated that he was here to decide whether or not the ETM fitted to my car was fit for purpose under the sale of goods act as I had claimed as it was not sufficiently durable. In this matter he found in my favour.
    He then stated that he also needed to determine if my use of the vehicle had in this case contributed to the early failure of the part. Again he found in my favour.

I was awarded my claim in full, the cost of court action and compensation for loss of earnings .

What it cost me
The cost of taking court action was £120 as my claim was for just over £1000 (I claimed for loss of use and time spent researching the case). It also has cost me about 4 days in my time researching and collating the available information.