Bernstein -v- Pamson Motors (Golders Green) Ltd; QBD 1987

A car had been delivered to the buyer three weeks before the purported rejection. In the interval
the purchaser had driven it 140 miles.
Held: The nature of the particular defect, discovered ex post facto, and the speed with which it
might have been discovered, are irrelevant to the concept of reasonable time in s35 which is
directed solely to what is a reasonable practical interval in commercial terms between a buyer
receiving the goods and his ability to send them back, taking into consideration from his point of
view the nature of the goods and their function, and from the point of view of the seller the
commercial desirability of being able to close his ledger reasonably soon after the transaction is
complete. The complexity of the intended function of the goods is clearly of prime consideration.
What is a reasonable time in relation to a bicycle would hardly suffice for a nuclear submarine.
Rougier J: In my judgment, the nature of the particular defect, discovered ex post facto, and the
speed with which it might have been discovered, are irrelevant to the concept of reasonable time
in s 35 as drafted. That section seems to me to be directed solely to what is a reasonable practical
interval in commercial terms between a buyer receiving the goods and his ability to send them
back, taking into consideration from his point of view the nature of the goods and their function,
and from the point of view of the seller the commercial desirability of being able to close his
ledger reasonably soon after the transaction is complete. The complexity of the intended function
of the goods is clearly of prime consideration here. What is a reasonable time in relation to a
bicycle would hardly suffice for a nuclear submarine.
Court: QBD
Date: 01-Jan-1987
Judges: Rougier J
Statutes: Sale of Goods Act 1979 35
References: [1987] 2 All ER 220, [1987] BTLC 37
Cited By:
Clegg -v- Olle Andersson (T/A Nordic Marine), CA, Cited, (Bailii, [2003] EWCA Civ 320,
Times 14-Apr-03, Gazette 22-May-03, [2003] 2 Lloyd's Rep 32)
Clegg and Another -v- Andersson (Trading As Nordic Marine), QBD, Cited, (Bailii, [2002]
EWHC 943 (QB)

The reasonable consumer test - s260(a)

Experience in New Zealand suggests that the determination of whether a failure is major will
most often turn on the reasonable consumer test. This provides that a failure will be major if a
reasonable consumer who knew of the failure in advance would not have acquired the goods.
The fact that an individual consumer, whose sensitivities may differ from those of the reasonable
consumer, may not have purchased a product, does not necessarily mean that a defect is major.
[17]
The New Zealand case of Norton v Hervey Motors Ltd [18] provides a useful example. In that
case, the consumer was unhappy with defects in the paintwork on a vehicle she had purchased
and she wished to have the vehicle replaced. The expert evidence was that the defect was easy to
remedy and covered by the express warranty that came with the vehicle. In those circumstances,
the court held that a reasonable consumer, having regard to the existence of the express warranty,
would still have purchased the vehicle. Therefore the failure was not of substantial character
(or, in ACL terms, major) and the consumer did not have the right to return the vehicle.
Although this test does not expressly include any assessment of whether the fault is easily
repairable, New Zealand courts have found that whether a failure is major is a matter of degree:
On a monetary level, being required to spend $1000 on repairs in respect of a vehicle purchased
for $5000 might indicate a failure of a substantial character but that would not necessarily hold
true for the same repairs on a vehicle of significantly greater value. [19]
New Zealand courts have also held that a reasonable consumer must be taken to expect that
there may well be some matters which will require remedy. [20] This will clearly be the case
when a consumer is purchasing certain types of products, such as a motor vehicle. In recent
years, cars have become increasingly reliable. Nevertheless, a car is such a complex combination
of systems that most reasonable consumers would still be likely to expect that any vehicle they
purchase will suffer minor faults from time to time. It follows that, provided they will be
remedied under the manufacturers warranty, such faults would be unlikely to cause a reasonable
consumer not to purchase. Similar logic may apply to appliances such as washing machines that
most reasonable consumers are likely to expect will require service calls from time to time.
The reasonable consumer test may give different results, however, when applied to products that
consumers dont expect to suffer frequent faults. For example, most reputable brands of
television are highly reliable. Unlike a consumer purchasing a car, a consumer purchasing such a
television may reasonably expect their purchase to operate without fault for several years.
However, if their television does develop a fault, fixing it will require the consumer to disconnect
the television, work out how to get it to a service agent, and then, in most cases, live without
television for a number of weeks. [21] Once the television is repaired, the consumer must
arrange to collect it again and then work out how to reconnect it properly.
Most televisions can be expected to operate without fault for years. Therefore, it is likely that a
reasonable consumer who knew ahead of time that a television would experience any fault in the
first few years requiring it to be taken to a service agent would choose to purchase another brand
instead. This means that even a fault that can be quite easily fixed may constitute a major

failure and give rise to a right of refund if it nevertheless causes a consumer considerable
inconvenience.

Unsafe products s260(e)

Section 260(e) of the ACL provides that goods have a major failure if they are not of acceptable quality
because they are unsafe. This means that any failure of the guarantee of acceptable quality that arises as
a result of a safety defect is automatically a major failure. This raises the spectre that almost any safety
defect in a product may give rise to a right for consumers to claim refunds.
Of course, before a safety defect can be deemed to be a major failure, it must be serious enough to
breach the guarantee of acceptable quality in the first place. In practice, this means that the defect must
result in the product not being as free from defects or as safe as a reasonable consumer would regard as
acceptable. The High Court of New Zealand had reason to examine the level of safety expected by a
reasonable consumer in Contact Energy Ltd v Jones. [23] In that case, which concerned the supply of
electricity, the court found that a reasonable consumer may be willing to accept a degree of risk particularly with products that have an inherent degree of risk.
Nevertheless, it seems clear that a motor vehicle that has a defect that results in an increased risk of brake
failure, or an electrical appliance with a fault that creates a risk of electrocution, will breach the guarantee
of acceptable quality on the basis that these products would not be as safe as a reasonable consumer
would regard as being acceptable. Section 260(e) will then deem the relevant failure to be major, giving
affected consumers a right to claim a refund.
This has serious implications for manufacturers conducting safety recalls. Where products have a
potential safety issue, the normal approach is for the manufacturer to issue a recall for a specified range
(such as a serial number range), have each product inspected and take the necessary action (such as a
repair or replacement) for products that are found to be affected by the fault. Under the new law, however,
if a product is found to be affected by a defect, manufacturers may not have the right to insist that
consumers accept a repair of their product. Instead, a safety recall may well give affected consumers the
right to insist on their choice of a refund or replacement.
The governments Consumer Guarantees A Guide for Businesses and Legal Practitioners states that a
potential safety issue does not automatically amount to a major failure. Instead, it says that [e]ach of the
goods subject to the recall would need to be considered individually. [24] The inference is that if a
product is recalled because it may have a safety defect, then where an individual product is inspected and
found not to be affected by the defect, there would be no right of refund. It seems difficult to avoid the
conclusion, however, that once an inspection shows that a product is affected by a safety defect, the
consumer is entitled to insist upon a refund or replacement. This means that future safety recalls may be
very expensive indeed for manufacturers.