Judith Turner, head of ADR and Senior Ombudsman explains why an expert witness report is important in the resolution of furniture disputes.
Furniture disputes are by their nature very subjective. An expert independent report will reassure a consumer that the trader has done everything in their power to deal with a complaint in an objective manner. They can also be very efficient in identifying quality assurance and manufacturing faults that were missed during the testing phase of a particular item and so, smooth out any problems within the supply chain.
Many of the disputes we receive at The Furniture Ombudsman may depend upon natural characteristics, such as tiger striping on a dining chair – which is something we’ve seen recently in a claim.
In evaluating these sorts of claims we would look at the information available to a consumer prior to entering the contract and which is designed to assist their purchasing decision. It is also worth reiterating that, as we have seen in previous articles, any pre-contract information which is supplied to a consumer now forms part of the contract under the Consumer Rights Act 2015. Therefore, in the above example, if the showroom model and product description referred to and showed this natural characteristic, this would be taken into account when assessing the consumer’s claim.
However, it is not always so clear cut as the example referred to above and in some instances, the nature of the characteristic may have to be objectively assessed by an independent expert as to whether it has breached the implied terms on satisfactory quality. Reports do form part of The Furniture Ombudsman’s assessment of evidence and in some instances we do require an expert’s report. This can be instigated by a retailer or consumer for use in evidence in a dispute. Alternatively, an ombudsman may call for this evidence if they are unable to resolve the claim by conciliation based on the evidence presented by both parties.
Why might a retailer or manufacturer require an expert’s report?
An expert’s report can be a key piece of evidence in resolving a dispute, both in terms of assessing if there is a product fault in the first place, and establishing if a repair is either achievable or reasonable to resolve this.
The Consumer Rights Act 2015 allows for a repair or replacement unless this cannot be carried out within a reasonable timeframe or without significant inconvenience to the consumer. What constitutes significant inconvenience may also be open to debate if, for example, the nature of the repair is such that it cannot be carried out in the consumer’s home and this is something that an expert would be able to answer.
In order to qualify as an expert witness and to compile a report for an adjudication here at The Furniture Ombudsman, the expert must have necessary experience and be suitably qualified. They must state if there are areas outside of this expertise, and satisfy the requirement of independence. The consultant then signs an Expert’s Declaration and Statement of Truth. All of this means that weight can be attached to the expert’s opinion when coming to a decision on a dispute.
As mentioned before, these reports can be of assistance in identifying quality assurance issues, used to resolve issues arising between retailers and suppliers and to recognise other trends within product design and manufacture which might not be identified during any product testing.
The Furniture Ombudsman provides furniture and home improvement inspections which, as well as being an added value for members, also offers support for consumers in providing objective evidence for use in disputes with non-members which may have to proceed via the courts.
The Balance of Probabilities
Civil claims are assessed on the balance of probabilities – that is to say on the basis of what is more likely. In such cases, absolute scientific proof is not required. Therefore, reports from technician groups, manufacturers and even the retailer’s representatives themselves would be recognised by a court. However, of greater consequence would be the expert’s opinion primarily due to the set criteria which the consultant must follow. Furthermore, the expert’s independence from all the parties and the product is key in evaluating the evidence. For this reason, where an Ombudsman considers such evidence is required, the expert would be appointed by The Furniture Ombudsman, rather than a choice made by the parties to the dispute.
Such technical opinion can be very important in assessing a claim, particularly when this is of a subjective nature such as whether a mattress is exhibiting dips, which are causing discomfort. In such case a report may look at the extent of the dips and how long these have taken to develop, assess the nature of any natural materials in the mattress and the performance of the springs and sidewalls. The expert would need to view the item in the home of the consumer and investigate any visual clues. The expert may also need to look at the specification of the product and visit the retailer’s showroom to compare the two.
What a consultant cannot do is to replicate a night’s sleep upon the mattress and comment on the comfort per se. The consultant’s investigation would be a thorough one, dealing with all highlighted issues and expressing an opinion as to whether there was a fault and if repair was feasible, but this would be based upon the balance of probabilities, that is to say, “what is the most likely cause?”.
The Reasonable Person
Civil claims continue to be assessed on an objective basis – the hypothetical ordinary and reasonable man on the Clapham Omnibus which was introduced into the English Court System in the Victorian era is still used today to assess what the reasonable person would think in any given scenario. So to take our first example, is the tiger striping as the reasonable person would have expected upon review of all the available point of sale documentation and product descriptions and having access to information about natural characteristics?
However, sometimes when this is in balance, the expert’s opinion can settle the dispute as to where the claim may lie and such information can be very important to an Ombudsman in assessing the consumer’s claim and any liability that a retailer may have.
Our pool of inspectors, many of whom have worked exclusively with us for a number of years, in addition to the various partnerships that we hold within the furniture and home improvement industries, are a crucial means of independent support that many of the UKs leading retailers and manufacturers have come to rely on.