Consequential damage - is the retailer liable?

[jim]

I bought a USB SD card reader from Amazon, which didn't work. Having removed it from my system to return it, I've discovered that my 32GB SD card has been melted.

Amazon are presently saying that I need to go back to the manufacturer, but with a sweetener that they will look into it if the manufacturer won't.

I'm reasonably comfortable with my rights in terms of faulty products, but know nothing about consequential damage - or even what it's properly called. Does anyone have any experience / know anything about this? What should I expect?

[Saracen]

As usual IANAL, but .... yes, the retailer is liable, up to a point.

Retails are liable for injury, damage to property, or expenses incurred. But there's some limits.

The damage, etc, has to be directly attributable to the failure of the product. In your case, it sounds like it is. The failure, essentially, has to be one the retailer is liable for, k.e. inherent in the product, not abuse, misuse, etc.

And, you have to have acted "reasonably", both in relation to damage caused to property, and/or expenses incurred. So, rather than taking your damaged item straight to a third-party repairer and expecting the retailer to pay the bill, give them reasonable opportunity to resolve the problem.

It's a long time since I did this, jim, but from memory, yes, they're liable for that kind of directly consequential loss. IIRC, it's trickier (if available at all) if the loss was economic, such as lost profit if you couldn't work for a couple of days as a photographer because your camera broke.

As I say, IANAL.

[csgohan4]

what brand was the SD card reader?

[jim]

Cheers, Saracen.

Surprisingly, the manufacturer have been quite speedy with their response and have passed the photos to their technical team - I'm going to give them until the end of the week to see if they sort it out, else I'll be expecting Amazon to get it sorted. It's not a huge amount of money, but I nonetheless would like it back. I've never seen anything like this before with a basic consumer product.

EDIT: It was Kingston, csgohan4

[DannyM]

I know it doesn't help and I don't want to tarnish the brand but I've also had an issue in the past with a Kingston card reader, although luckily it didn't cause any physical damage but every time I put a card in it didn't recognise it and in one circumstance one of the cards became corrupted. I hope you get the issue resolved, just approach the situation with due diligence as Saracen has pointed out.

[csgohan4]

I usually use Lexar myself, no issues so far, but I have an old USB2.0 not the USB3.0 version so a tad bit slow

[jim]

So they've been quite punctual in their replies, but it has now come down to:

"we can't see anything unusual on the Card Reader as for now there are no visible evidence that the card reader is the cause of damaging your SD Card"

Now there's a shock. So the photograph of the outside of the card reader does not indicate why the SD card, inside, melted. You could've knocked me down with a feather.

And that if I want them to replace it (not refund, replace), I'll need to send it back, and then they'll investigate it to see whether they think they might need to compensate me for the SD Card. I think if there's one thing we can all say, it's that that sounds like a thoroughly impartial, rock-solid process.

I think they can get stuffed.

[mycarsavw]

Not to doubt your technical expertise but did you connect the headers correctly? Firewire and USB look the same and are often the cause of heat/fire/melting plastic. It would also explain why the reader didn't work.

Allen killed his mobo doing something similar a few years ago > http://forums.hexus.net/scan-care-he...ught-fire.html

[Saracen]

How old is the reader? Between date of purchase, and date of complaint, I mean?

If less than 6 months, the standard a court would apply is that they have to prove, on balance of probability, to the court that the fault on the reader was not inherent. You do not have to prove it was.

After 6 months, that burden reverses, and falls on you.

So .... one question .... how far do you want to push? In part, that depends on how annoyed you are.

I once threatened (and was utterly serious) an insurance company with court over some £30. They'd dragged their feet for months over settling a claim that they'd admitted. They tried to wriggle out of this bit, then that bit, all to keep their costs down. Eventually, they offered to settle everything bar that last £30, which was credit card interest incurred ONLY because they'd been so slow. They sent a cheque for some £3500, but excluded that last bit. By this time, we were 6 months down the line.

So I added up all the extra costs I'd incurred while they pussyfooted about trying to reduce their costs, including that £30, and sent them a statement, demanding settlement in full within 7 days or I would proceed to legal action without further discussion. I sent their cheque back, marked "refused" and cc'd my solicitor on the letter. I sent the letter recorded delivery, faxed a copy as well, and then rang the claims controller.

He still tried to insist they didn't pay credit card charges. I told him if they'd acted in a reasonable timeframe, there wouldn't have been any, and I'm not paying for their sluggishness. I told him (truthfully) that the court claim papers were aleady completed, and would be posted in the first post after my deadline ran out. My letter pointed out that additional costs would be incurred if that happened, and I would claim. I pointed out I'd been reasonable throughtout, seeking ONLY reimbursement of losses incurred, while they'd spend six, yes six months trying to weasel out of anything they thought might work.

So, Mr Claims man, the clock is ticking, deadline set. You have a binary choice .... settle in full, or let a judge decide. I was REALLY hoping they let the judge decide.

Next day .... motorbike courier arrived with a cheque in full settlement.


So, why was I hoping it went to court? Because by that time, I was so angry with being jerked about I wasn't going to settle for 30p less, never mind £30. Had they made that £3500 offer reasonably promptly, instead of jerking my chain for months, I'd have accepted a small loss on my entitlement just to avoid the hassle. But after 6 months, I was actively hoping they let it go to court, BECAUSE they'd jerked me about, and never mind that it was a hassle.

So, IF you really feel right is on your side, and especially if the reader is less than 6 months old, how obstinate are you prepared to be?

I don't know how Amazon are, but many companies won't want to muck about with small claims court over trivial amounts. They MIGHT over the principle.

If you do decide to dig your heels in, be very careful to be reasonable at all times. Just also be aware that if you send the reader back to Amazon for "inspection" you've also lost control over the main piece of evidence. You might want to get qualified advice over the best way to deal with that. Do you have any form of legal insurance, with car or home insurance for instance, that gives access to proper legal advice on general matters? Lots of policied include this (and vharge for it) unless you explicitly remove it. If so, maybe use it if you want to push it.

IMHO, a lot depends on how peeved you are, and how much mucking about you're prepared to go to. Financially, it's not (IMHO) worth the effort, but as above, I've been known to be downright obstinate, regardless of the money, if they get me peeved enough.

[dhw00t]

Not to doubt your technical expertise but did you connect the headers correctly? Firewire and USB look the same and are often the cause of heat/fire/melting plastic. It would also explain why the reader didn't work.

Allen killed his mobo doing something similar a few years ago > http://forums.hexus.net/scan-care-he...ught-fire.html

Yep, I have done this as well. Thankfully it was a old 1GB USB Stick. Was only in the USB Port a few seconds and there was quite a burning smell and grey smoke.

[jim]

Not to doubt your technical expertise but did you connect the headers correctly? Firewire and USB look the same and are often the cause of heat/fire/melting plastic. It would also explain why the reader didn't work.

Allen killed his mobo doing something similar a few years ago > http://forums.hexus.net/scan-care-he...ught-fire.html

External USB, so fairly confident

[jim]

How old is the reader? Between date of purchase, and date of complaint, I mean?

If less than 6 months, the standard a court would apply is that they have to prove, on balance of probability, to the court that the fault on the reader was not inherent. You do not have to prove it was.

After 6 months, that burden reverses, and falls on you.

So .... one question .... how far do you want to push? In part, that depends on how annoyed you are.

I once threatened (and was utterly serious) an insurance company with court over some £30. They'd dragged their feet for months over settling a claim that they'd admitted. They tried to wriggle out of this bit, then that bit, all to keep their costs down. Eventually, they offered to settle everything bar that last £30, which was credit card interest incurred ONLY because they'd been so slow. They sent a cheque for some £3500, but excluded that last bit. By this time, we were 6 months down the line.

So I added up all the extra costs I'd incurred while they pussyfooted about trying to reduce their costs, including that £30, and sent them a statement, demanding settlement in full within 7 days or I would proceed to legal action without further discussion. I sent their cheque back, marked "refused" and cc'd my solicitor on the letter. I sent the letter recorded delivery, faxed a copy as well, and then rang the claims controller.

He still tried to insist they didn't pay credit card charges. I told him if they'd acted in a reasonable timeframe, there wouldn't have been any, and I'm not paying for their sluggishness. I told him (truthfully) that the court claim papers were aleady completed, and would be posted in the first post after my deadline ran out. My letter pointed out that additional costs would be incurred if that happened, and I would claim. I pointed out I'd been reasonable throughtout, seeking ONLY reimbursement of losses incurred, while they'd spend six, yes six months trying to weasel out of anything they thought might work.

So, Mr Claims man, the clock is ticking, deadline set. You have a binary choice .... settle in full, or let a judge decide. I was REALLY hoping they let the judge decide.

Next day .... motorbike courier arrived with a cheque in full settlement.


So, why was I hoping it went to court? Because by that time, I was so angry with being jerked about I wasn't going to settle for 30p less, never mind £30. Had they made that £3500 offer reasonably promptly, instead of jerking my chain for months, I'd have accepted a small loss on my entitlement just to avoid the hassle. But after 6 months, I was actively hoping they let it go to court, BECAUSE they'd jerked me about, and never mind that it was a hassle.

So, IF you really feel right is on your side, and especially if the reader is less than 6 months old, how obstinate are you prepared to be?

I don't know how Amazon are, but many companies won't want to muck about with small claims court over trivial amounts. They MIGHT over the principle.

If you do decide to dig your heels in, be very careful to be reasonable at all times. Just also be aware that if you send the reader back to Amazon for "inspection" you've also lost control over the main piece of evidence. You might want to get qualified advice over the best way to deal with that. Do you have any form of legal insurance, with car or home insurance for instance, that gives access to proper legal advice on general matters? Lots of policied include this (and vharge for it) unless you explicitly remove it. If so, maybe use it if you want to push it.

IMHO, a lot depends on how peeved you are, and how much mucking about you're prepared to go to. Financially, it's not (IMHO) worth the effort, but as above, I've been known to be downright obstinate, regardless of the money, if they get me peeved enough.

Not even a month old yet, so time is on my side.

My situation at the moment is that Amazon have said "give the manufacturer a chance, if they won't help then we'll step in". So right now I'm dealing with the manufacturer, but I'm not going to waste too much effort before I go back to Amazon.

Having received the aforementioned email from Kingston, I sent back a very snotty reply basically asking why they're accusing me of lying over £20. In response, they've apologised and agreed to consider a refund on both items before testing, if I pass them the relevant receipts.

My gut reaction is that I'm not making a minor complaint here - if the device is getting so hot that it's melting plastic, then they ought to be concerned about it. If I was them, I'd want to pay the £20 and get the device back to have a proper look at before I ended up with a real mess on my hands. They ought to want my co-operation, and I'm not asking much. If they want to make a big deal over it, then fine, I'll go back to Amazon. But I will be informing the world at large that they're selling potentially dangerous products and apparently have no interest in resolving them.

Am I considering court action? No, not really. But I will fight tooth and nail for my £20, whether that means via the manufacturer or Amazon. IMO it's the least they should be doing.

[Saracen]

Sounds like you've got it well in hand, and there's not much for me to add, besides pointing out (though I'm sure you know anyway) that the primary responsibility is Amazon's, not Kingston. Retailer, not manufacturer. And the 6-month stuff, etc, applues to Amazon, not Kingston. Kingston are responsible for whatever their guarantee says they are, and IIRC safety issues and personal injury, but the bulk of your legal rights are with Amazon.

That said, I can't fault your logic or reasoning. And I'd have thought they'd want what you thought they'd want.

What's their downside? It costs them £20. In the scheme of things, whoop-de-do. Their upside is IF they've got a problem that might potential start fires, you'd think they'd want to know about it.

So, £20. Hmmm.

The wife did the shopping a couple of weeks ago, in Waitrose. The cashier packed her shopping into bags. I unpacked when she got home to find a bag of baby spinach at the bottom of one, with various heavy items on top. About half the spinach was thoroughly squished. I rang the local store, spoke to the duty managrr and pointed out I wasn't impressed. I told her I'd use the unsquished bit for a salad with dinner, and the rest could go in a smoothie, but that putting fresh, delicate leaves anywhere other than on top, or in a bag with similar items only, wasn't very bright.

The was very apologetic, and arranged a £10 credit on our next shop, and that was sight unseen, over the phone. She hadn't even seen the spinach, and I could have been making it up. I wasn't, but I could have been.

Contrast that with Kingston's approach. I know they aren't a retailer, and that Waitrose/JL have a pretty damn good reputation on customer service (deservedly, IMHO), but .... well .... Waitrose have me telling one kind of story online, and Kingston have you telling another. Oh dear.

[Funkstar]

Contrast that with Kingston's approach. I know they aren't a retailer, and that Waitrose/JL have a pretty damn good reputation on customer service (deservedly, IMHO), but .... well .... Waitrose have me telling one kind of story online, and Kingston have you telling another. Oh dear.

Waitrose probably made more money from selling you that one bag of spinach than Kingston did on the memory card and card reader

[Smudger]

Sounds like you've got it well in hand, and there's not much for me to add, besides pointing out (though I'm sure you know anyway) that the primary responsibility is Amazon's, not Kingston. Retailer, not manufacturer. And the 6-month stuff, etc, applues to Amazon, not Kingston. Kingston are responsible for whatever their guarantee says they are, and IIRC safety issues and personal injury, but the bulk of your legal rights are with Amazon.

That said, I can't fault your logic or reasoning. And I'd have thought they'd want what you thought they'd want.

What's their downside? It costs them £20. In the scheme of things, whoop-de-do. Their upside is IF they've got a problem that might potential start fires, you'd think they'd want to know about it.

So, £20. Hmmm.

The wife did the shopping a couple of weeks ago, in Waitrose. The cashier packed her shopping into bags. I unpacked when she got home to find a bag of baby spinach at the bottom of one, with various heavy items on top. About half the spinach was thoroughly squished. I rang the local store, spoke to the duty managrr and pointed out I wasn't impressed. I told her I'd use the unsquished bit for a salad with dinner, and the rest could go in a smoothie, but that putting fresh, delicate leaves anywhere other than on top, or in a bag with similar items only, wasn't very bright.

The was very apologetic, and arranged a £10 credit on our next shop, and that was sight unseen, over the phone. She hadn't even seen the spinach, and I could have been making it up. I wasn't, but I could have been.

Contrast that with Kingston's approach. I know they aren't a retailer, and that Waitrose/JL have a pretty damn good reputation on customer service (deservedly, IMHO), but .... well .... Waitrose have me telling one kind of story online, and Kingston have you telling another. Oh dear.

When I was a checkout chick at my local Waitrose, we were trained in packaging for customers, and were always told not to pack heavy on top of fragile. This person needs to be identified, taken out the back and whipped until they bleed. Or, you know, reminded not to do it.

[MrRockliffe]

I had a kingston Micro SD card melt in my Xperia Z...

Sony replaced the SD card with a 16GB model and a brand new Z1 (which in turn has issues currently with the screen).