Wordsworth v Auckland Auto Collection Limited t/a North Harbour Ford - Reference No. MVD 241/2019 [2019] NZMVDT 223 (18 October 2019)

Last Updated: 5 December 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 241/2019
[2019] NZMVDT 223

BETWEEN PATRICK JOEL WORDSWORTH

Purchaser

AND AUCKLAND AUTO COLLECTION LIMITED T/A NORTH HARBOUR FORD

Trader

HEARING at Auckland on 10 September 2019, further submissions received on various dates in September and October 2019 and telephone conference on 15 October 2019
MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

S N Haynes – Assessor
APPEARANCES

P J Wordsworth, Purchaser
S R Fraser, Dealer Principal of Trader
P R J Cartmell, Service Manager of Trader
A J Webster, Technical Service Engineer, Ford Motor Company of New Zealand

DATE OF DECISION 18 October 2019

___________________________________________________________________

DECISION OF THE TRIBUNAL

___________________________________________________________________

Mr Wordsworth’s rejection of his Ford Ranger is not upheld and his application is dismissed.

___________________________________________________________________

REASONS

Introduction

[1] Three times, in May and September 2019, a warning message has appeared on the instrument panel of Patrick Wordsworth’s Ford Ranger advising that he should “check brake system”. After experiencing the same issue in two previous Ford Rangers, Mr Wordsworth has run out of patience. He wishes to reject his current vehicle.
[2] Auckland Auto Collection Ltd, trading as North Harbour Ford (North Harbour Ford), which sold Mr Wordsworth the vehicle, denies it has a fault. Yet it cannot explain why the alert is appearing.
[3] Mr Wordsworth accepts that North Harbour Ford has been very helpful in trying to diagnose and remedy the problem. But his concerns about whether the vehicle is safe, as well as the inconvenience to him of having to get it regularly checked, have prompted him to say “enough is enough”. He does not want this issue to go on any longer. In hindsight, Mr Wordsworth says that he never would have bought the vehicle, knowing what he now does about the continued intermittent appearance of this warning message.
[4] From this background, the primary issue for the Tribunal to determine is whether the vehicle failed to comply with the guarantee of acceptable quality.

Did the vehicle fail to comply with the guarantee of acceptable quality?

[5] Section 6(1) of the Consumer Guarantees Act 1993 (the Act) provides that “where goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality”. According to s 2 of the Act, “goods” includes vehicles.
[6] “Acceptable quality” is defined in s 7 of the Act (as far as is relevant) as follows:

7. Meaning of acceptable quality

(1) For the purposes of section 6, goods are of acceptable quality if they are as—

(a) fit for all the purposes for which goods of the type in question are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from minor defects; and

(d) safe; and

(e) durable,—

as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—

(f) the nature of the goods:

(g) the price (where relevant):

(h) any statements made about the goods on any packaging or label on the goods:

(ha) the nature of the supplier and the context in which the supplier supplies the goods:

(i) any representation made about the goods by the supplier or the manufacturer:

(j) all other relevant circumstances of the supply of the goods.

[7] Whether a vehicle is of acceptable quality is considered from the point of view of a reasonable consumer who is fully acquainted with the state and condition of the vehicle, including any hidden defects.
[8] The issue experienced by Mr Wordsworth with his vehicle is that a warning message, described as a “splash screen” by Ford Motor Company of New Zealand’s Technical Services Engineer, Alec Webster, appears to the right of the speedometer on the instrument panel. It is a large rectangular box with the words “check brake system” above these symbols with the text symbol below that.

[9] The owner’s manual states that when this warning appears, it may indicate low brake fluid or a malfunction in the braking system. The manual recommends that the vehicle be taken to a Ford service agent as soon as possible for diagnosis using Ford’s specialist diagnostic equipment (known as IDS or Integrated Diagnostic System).
[10] In Mr Wordsworth’s current vehicle, this warning has appeared three times, on 8 and 29 May, and 14 September 2019. Each time, Mr Wordsworth did not observe any other alteration to the vehicle’s braking performance, or anything else abnormal about the vehicle.
[11] The first time it happened, on 8 May 2019, the fault message lasted on the instrument panel for approximately five minutes. Mr Wordsworth stopped the vehicle, turned the engine off completely and restarted the car numerous times but the error reappeared when he powered up the vehicle. It eventually disappeared by itself.
[12] On the second occasion, on 29 May 2019, Mr Wordsworth was driving the vehicle on the motorway and could not stop. However, the error disappeared after approximately three minutes with no intervention by Mr Wordsworth.
[13] In between these two instances of the warning message appearing, Mr Wordsworth took the vehicle to North Harbour Ford for investigation. It noted that the warning was not present at the time the vehicle was left with it on 16 May 2019. North Harbour Ford connected the vehicle to IDS, checked all continuous memory diagnostic trouble codes, and found no codes were present. It also checked for diagnostic trouble codes on the ABS module and found no trouble codes there either. North Harbour Ford also inspected the brake fluid level and condition and found it to be satisfactory. It carried out a visual inspection of the brake system components and found no visual damage or fluid leaks. It then took the vehicle for a test drive and found the braking system was working satisfactorily. For further testing, Mr Wordsworth’s permission was obtained for North Harbour Ford’s foreman to drive the vehicle for the weekend. During this long test drive, no faults arose. On the return of the vehicle to North Harbour Ford’s workshop, it was reconnected to IDS and a further fault code check was carried out. No fault codes were found and the technicians concluded that all was okay. The vehicle was returned to Mr Wordsworth on or around 20 May 2019. He reported the second instance of the warning appearing some nine days later on 29 May 2019. After the hearing, the fault message appeared for a third time on 14 September 2019.
[14] North Harbour Ford’s position in response to Mr Wordsworth’s rejection of the vehicle is that it has no defects or faults. North Harbour Ford advises that the vehicle has full braking function, even when the “check brake system” warning has illuminated. The way North Harbour Ford described the issue is that the vehicle’s internal management system is detecting an undefined fault of some sort, rather than detecting or notifying a failure in the braking system. The vehicle’s braking system, according to North Harbour Ford, has not been compromised and the vehicle remains totally safe to drive.
[15] The vehicle was delivered to Mr Wordsworth on or around 30 November 2018. It was brand new with only 9 km on the odometer. Since then, Mr Wordsworth has driven the vehicle just over 25,000 km. When the fault first occurred in May 2019, the vehicle had travelled approximately 15,000 km.
[16] North Harbour Ford has been unable to replicate the fault and, in its consultation with Ford’s Technical Assistance Centre, it has not found any evidence of other examples of this problem occurring. In response to a question from the Tribunal’s Assessor, Mr Haynes, Mr Webster confirmed that there have been no recalls of other vehicles in connection with this or any similar issue.

Previous Ford Rangers owned by Mr Wordsworth

[17] As mentioned in the introduction to this decision, this is now the third Ford Ranger that Mr Wordsworth has owned which has presented the same unexplained warning. His first vehicle, of which he took delivery in June 2017, had the same problem four times. He rejected that vehicle on 1 January 2018. Without admitting that anything was wrong with the first vehicle, but as a gesture of “goodwill”, North Harbour Ford agreed to replace Mr Wordsworth’s first Ford Ranger with another vehicle. It took back the first vehicle and sold it to another person who has continued to have the vehicle serviced through an associated dealership. Mr Fraser, North Harbour Ford’s Dealer Principal, confirmed that Mr Wordsworth’s original vehicle has not presented the “check brake system” warning for its new owner.
[18] The second Ford Ranger, supplied by North Harbour Ford to Mr Wordsworth, was delivered to him on 27 January 2018. It displayed the “check brake system” warning on three occasions in March, June and August 2018. This led Mr Wordsworth to reject the second vehicle on 30 August 2018. Again, without admitting any liability but as a goodwill gesture, North Harbour Ford offered a range of options to allow Mr Wordsworth to replace his vehicle with another vehicle. At the end of November 2018, Mr Wordsworth acquired the third and current Ford Ranger from North Harbour Ford by paying it an additional $2,000. This allowed Mr Wordsworth to take possession of what was in effect a brand new vehicle, nearly 18 months after he had originally purchased his first vehicle, on payment of a relatively small proportion of the original purchase price of $47,167.
[19] In respect of the previous Ford Rangers, North Harbour Ford has attempted various remedial action such as:

• replacing the ABS pump as a precautionary measure;
• adjusting the handbrake travel; and
• replacing the canopy with a different model of canopy.

[20] After the most recent appearance of the warning, North Harbour Ford took the vehicle to its Glenfield service department for a full diagnostic analysis, supported by technical support from Ford Motor Company engineers in Australia. The vehicle was driven extensively in an attempt to replicate the fault. However, again, North Harbour Ford was unable to trigger the “check brake system” warning or identify any faults with the vehicle.
[21] On none of the ten occasions on which North Harbour Ford has attempted to diagnose the issue in respect of the three different vehicles, has it been able to replicate the fault, trace any fault codes, or find any other evidence of any defect or fault in the vehicle.
[22] North Harbour Ford’s representatives stated that there is a possibility that an external influence may be causing an interruption to a brake signal which is leading to the warning appearing on the instrument panel. Suggestions mentioned in the hearing by North Harbour Ford’s representatives included: cruise control deactivation, a problem with the tail lights or an electrical connection to a trailer, or even a GPS tracking device.
[23] As part of its testing following the most recent instance of the warning, technicians used a lightboard to simulate a trailer and its associated wiring being connected to the vehicle. But this testing did not lead to any useful explanations.
[24] The last-mentioned example of possible external influences prompted Mr Haynes and I to ask whether Mr Wordsworth’s job, as a telecommunications technician, involved him carrying any specialised equipment on the vehicle. We were curious whether any such equipment could potentially be providing an external influence of the kind that may be causing the kind of interruption that could possibly be leading to this warning appearing. Mr Wordsworth explained that he carries equipment required to allow him to do his job fixing old copper telephone lines. Apart from the usual cellphone and tablet he has a device known as a dynatel, which is a location device used for finding the path and estimated depth of buried cables and pipes. This is almost always stored in his vehicle and he was 99% sure it was there at the time the warning messages appeared in May 2019. Sometimes, he leaves the dynatel turned off, but sometimes it is left in standby mode.
[25] However, Mr Wordsworth reported that none of his work tools were in the vehicle when the warning appeared on 14 September 2019. And, in any event, North Harbour Ford’s representatives said that, even if the warning was being triggered by some sort of external influence, it would be likely to leave some trace in the form of a fault code.
[26] Another possibility is simultaneous pressure on both the accelerator and brake. North Harbour Ford confirmed that this action could trigger the warning and would be unlikely to leave a fault code. The fact that Mr Wordsworth’s Ford is a manual may reduce the likelihood of this occurring, but it is still a possibility. However, when I mentioned this at the telephone conference. the parties said they had already considered this issue, and Mr Wordsworth was confident it had not occurred.

Tribunal’s assessment

[27] As I explained to Mr Wordsworth in the hearing, the primary focus of the Tribunal’s assessment of his claim must be on his current vehicle, rather than his previous two Fords. That is because the effect of s 23(4) of the Act is that where a consumer obtains goods to replace rejected goods, the guarantees and obligations arising under the Act apply to the replacement goods. While Mr Wordsworth's previous experience with the first two vehicles is relevant context which the Tribunal has taken into account, the primary issue for the Tribunal to determine is whether his current vehicle does not comply with the guarantee of acceptable quality and, if so, whether Mr Wordsworth has any remedies in respect of that vehicle.
[28] Accordingly, although Mr Wordsworth has had considerable inconvenience in the form of having to bring his current and former vehicles back to North Harbour Ford for investigation on numerous occasions, the Tribunal is primarily focused on the fact that the current vehicle has only had three reported episodes of this issue arising over 25,000 km. In respect of the current vehicle, North Harbour Ford has made two thorough attempts to diagnose and identify whether there is any underlying fault. Ultimately, North Harbour Ford’s diagnosis did not reveal any fault with the braking system, nor any explanation of what might be causing the warning to appear.
[29] All the Tribunal can do on the current evidence is to record that this appears to have been a “false positive” warning. The difficulty with a warning relating to the braking system is that there is, on its face, an obvious safety dimension. A driver of a vehicle would not be acting responsibly if they were to ignore a warning such as this if it appeared. North Harbour Ford was unable to suggest any other options for Mr Wordsworth but to bring the vehicle for it to be properly diagnosed and assess whether any fault was present if the warning should reappear. Likewise, the Tribunal will leave open the door for Mr Wordsworth to apply again if this problem recurs for him, particularly if it is associated with any other symptoms or fault codes.
[30] Other than that, the Tribunal does not consider that the vehicle has failed to comply with the guarantee of acceptable quality. While acknowledging the considerable annoyance and inconvenience experienced by Mr Wordsworth in this case, there is no proven fault with the vehicle, other than a recurring warning message. It is not possible to reach any other conclusion because each time on an investigation of that warning message no underlying fault has been found. That is matched by Mr Wordsworth’s evidence that there have been no noticeable adverse effects on his vehicle’s braking system or any other aspect of the vehicle.
[31] It is reassuring that every time Mr Wordsworth has experienced this fault, North Harbour Ford has taken it seriously and has provided him with full workshop assistance to try and diagnose any underlying issues. Mr Wordsworth is protected under the Act and under the terms of the manufacturer’s warranty, which still has some time to run.
[32] And North Harbour Ford has offered to repurchase the vehicle at what it describes as a fair market value if Mr Wordsworth does not want to keep it.
[33] Regrettably, however, the Tribunal is unable to uphold Mr Wordsworth’s application to reject the vehicle and his application to the Tribunal must be dismissed.

J S McHerron
Adjudicator