When a consumerís motor vehicle has been damaged whilst on the premises of a repairer or dealership, the following points should be noted:
- Most repairers/dealerships have something called public liability insurance. These insurance policies cater for situations where the business has incurred liability as a result of damage to a third partyís property whilst in the care of the business. It is always advisable to establish whether the business has this type of insurance and we would suggest that you establish this prior to entering into a contract of repair.
- Where you are in a situation where the business does not have public liability insurance or refuses to make use of this insurance cover, then you as the motorist/consumer need to note the following:
- Dealerships and repairers always have a disclaimer which indemnifies them from any liability whilst the vehicle is in their possession. Most businesses in an attempt to avoid liability, rely on this disclaimer.
- However, the Consumer Protection Act has changed the manner in which a dealership/repairer may rely on a disclaimer. You will note this in Section 49 of the Consumer Protection Act which places an obligation on a dealership/repairer to notify the customer of any terms and conditions that might exempt the dealership/repairer from liability. The Act further requires that the notice:
- Be written in plain language
- Be drawn to the attention of the consumer/motorist in a manner that would attract an ordinary motoristĎs attention and take place before the motorist enters into a contract.
- The display of the disclaimer must be in such a manner that it will allow the consumer/motorist ample time to look at the disclaimer, read and understand the contents.
- The Consumer Protection Act places these obligations on the dealership/repairer and where the dealership/repairer tries to escape liability based on the disclaimer, they may only do so if they have complied with the Act.
- When a motorist find themselves in this situation, it is important to note that the consumer/motorist bears the responsibility of proving that the Disclaimer is not compliant with the Consumer Protection Act.