My BMW was recalled over safety fears and I've not received a loan car — can I sue?

Q. My BMW 3-series is the subject of a recall to replace the front passenger airbag. Although I was alerted to this in November, my dealer is still waiting for the parts to arrive. Apparently, the fault could lead to an “increased risk of injury” if the airbag inflates. I believe this makes it unsafe for a front-seat occupant, but my requests to the dealer and to BMW for an interim loan car have been rejected. Can I sue?
JB, Dronfield, Derbyshire

A. You might be able to sue, or you might have an action for breach of contract. If you would prefer to obtain damages, you will need to check your contract’s small print carefully to see what is mentioned about the terms and times of repair. If the dealer has failed to respect one or both you can sue.

The amount of damages you seek will depend on what has been promised and performed. In your case you would want to claim for the loss of use of your car, and for the cost of a replacement hire car.

Search for and buy your next car on driving.co.uk

The dealer will presumably argue that your car is still safe to drive, so you have incurred no loss. You will need to persuade the court otherwise, and show that you have acted reasonably by hiring a car and by keeping the hire-car costs as low as possible.

The alternative to suing is to seek a partial refund of the sale price, or to get the dealer to take back the car. Under the Sale of Goods Act 1979, the dealer’s obligation is to supply you with a car of satisfactory quality, and to repair or replace it should it be defective.

You say this has not happened and if a court supports that view, the dealer may have to rescind the contract (in effect buy back the car and give you at least a partial refund, reduced to reflect the use you got out of it before the recall issue).

The nub of this argument is whether or not there actually is a breach of contract: is the car really so unsatisfactory that the contract can be rescinded? Ultimately, that’s a decision the court will have to make.

MR LOOPHOLE
Nick Freeman is a solicitor who runs a legal practice in Manchester specialising in road traffic law – read more from Nick here.

GOT A PROBLEM?
Email your question to carclinic@sunday-times.co.uk or write to Car Clinic, Driving, The Sunday Times, 1 London Bridge Street, London, SE1 9GF, with a daytime phone number,
your address and as much detail about your car as possible. We can’t reply in person, so don’t send original documents or SAEs. Advice is given without legal responsibility.