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Consumer act no guarantee against unreasonable use

Consumer act no guarantee against unreasonable use

I’m not a morning person. It’s just the way we are built – some people are owls and some people are larks. So it wasn’t particularly easy, facing 60 lively commercial law students at 8am for my annual two-hour lecture on how to pass a Consumer Guarantees Act exam question.

Of course, we had to discuss the hot consumer topic – cellphones with water damage. Lots of us had first-hand knowledge – including me. I had managed to drown my cellphone when it jumped out of my pocket in a bathroom. About four months later, it died. I could have blamed the phone, but I’m not like that, and from my past studies of chemistry and corrosion, I had been sadly waiting for it to give up the ghost. Corrosion takes time, and consumers often don’t realise that it can be something that happened months ago that has caused the problem. Water damage is usually quite obvious when a technician takes the cellphone apart and looks at the circuit boards, but by then consumers have forgotten about the day they answered it in the rain or dropped it in a puddle.

For the record, Vodafone gave me a really good replacement deal. But for me this episode raised several legal issues. First – should a cellphone be waterproof? If it’s not, is it defective? Surely cellphones are used in all weathers – and even on boats? Did my cellphone breach the wonderfully flexible Consumer Guarantees Act guarantee of acceptable quality, because it wasn’t fit for all common purposes? The guarantee of acceptable quality has a “reasonable consumer test” which works like this. Would a reasonable consumer fully acquainted with the nature and extent of the “defect” (corrodes and dies if dropped in water) consider the phone to be acceptable, taking into account factors such as the nature of the product, (electronic: would you let your iPod/computer/ordinary telephone get wet? Highly unlikely), representations of the manufacturer and supplier (the instruction booklet says not to let it get wet) and a range of other sensible factors.

Anyway, the guarantee does not apply if the goods have been used unreasonably – and it’s fair to say that dropping a cellphone into water is hardly reasonable use. In my view, unless it has been presented as a waterproof model, a cellphone that corrodes when wet is unlikely to breach the consumer guarantee of acceptable quality.

In the end, the reasonable consumer test always looks at risk management – who can best manage the risk of keeping the cellphone dry? And as long as a consumer knows that cellphones and water don’t go together, and manufacturers and retailers keep pointing this out to consumers, corrosion in cellphones will remain the consumer’s problem.

Rae Nield is a solicitor specialising in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz.


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