VIC Dealership Failed to Notice Car Failure - What Can I Do?

Eddie · 25 July 2016

Hey all,

I bought a BMW 320d in 2013, which was a used Dealer Premium vehicle with 40,000km on it. Fast forward 3 years...

While I was driving, in the middle of an intersection the engine cut out, with no prior warning. I was left rolling across the intersection in an unresponsive vehicle. Got towed the next morning, and after a week at the dealer's service, they told me that the timing chain has snapped.

Facts:

1. Car was serviced at BMW 5 weeks earlier (costing $1900)
2. This particular engine has a known manufacturing fault that causes the timing chain to snap

Being a 5-year-old car and out of warranty, BMW has quoted me $8500 to fix it, of which they will pay $2500 out of 'good will'. This leaves me with $6000 for a fault that I had no control over, and for something that should've been detected during service.

Dealership admitted that they don't bother checking the timing chain as it's "designed not to fail".
I had to agree to get it fixed as it was the only way I could get them to give me a loan car while it's getting fixed.

Is there anything I can do under Australian Consumer Law/ Guarantees?

Surely a car that costs $75,000 new is expected to last more than 95,000km?

Any help would be much appreciated.

Sophea · 26 July 2016

Hi Eddie,

The Consumer Law provides that a used car dealer must guarantee that the vehicles they sell are of acceptable quality. The test for acceptable quality is whether a reasonable consumer, fully aware of a motor vehicle’s condition (including any defects) would find it:

fit for all the purposes for which vehicles of that kind are commonly supplied

acceptable in appearance and finish

free from defects

safe; and

durable.

The test may also take into account other factors such as whether the vehicle is new or second hand, the price of the motor vehicle – (a consumer may reasonably expect a top-of-the-range model in a particular vehicle class to be more durable than a cheaper competing model in the same class).

While a reasonable consumer may expect that an expensive 6 year old vehicle would be more durable than what it has proved to be, it is in reality a 6 year old car and 3 years since you purchased it. You would need to prove that at the time of sale it there was some defect. It could be difficult.

Obviously no can can say with any certainty what a court would determine if you were to take them to small claims. The outcome would also depend on what expert evidence you could get your hands on to prove that they should have known about it or that the defect should not have occurred in a 6 year old vehicle.

Eddie · 1 August 2016

Hi there, thank you for your reply.

I am not claiming that the car was 'defective' at the time of purchase, I am pointing out that there was a known manufacturing issue with the car that has the potential to cause major damage to the car (which is what happened) and I wasn't aware or made aware of it at the time of purchase.

Furthermore, there are official internal documents from the manufacturer instructing service dealers to check this particular part and replace it (specific to my engine), and the dealership service did not check it or replace it, and because of lack of duty of care on their behalf is what caused the engine damage.

The question now is, do I go after
A. The dealership that sold me the car, or
B. The dealership that serviced the car and didn't take proper care
(they are are both BMW dealerships).

Regards

Sophea · 2 August 2016

I suppose it's the dealership you are alleging is at fault, however, I'm not sure that failing to check on a specific issue that they are required to for in the manual (unless they are a specialist BMW dealership and service centre) would constitute a breach of their duty toward you.

If it got serious later on and proceedings were instituted you would typically join both parties, but at this stage, I would see where you can get with the dealer. My guess is though that they are not going to play ball unless you get some serious legal artillery involved because this is not a typical situation and would likely require determination by a court.

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