Problem: Customer unhappy with paintwork on poor state of render
I run a small painting and decorating firm. Earlier this year, I was asked by a customer to quote for re-painting render to the outside of a 1930’s bungalow. When I viewed the existing render, I advised the customer that the render was in a poor state of repair, appearing loose in several places and that she should re-render before applying any paint.
The customer said that she did not want to spend much money and wanted me to paint the render as is.
About one month after I had painted the render, the paint failed, but the customer is disputing the work, blaming me for using the wrong paint, and has said that she will get someone else in to “do the job properly”.
I know I have been silly, but the agreements were verbal, including my advice about the render. I am therefore very worried that I could be facing a big cost for the remedial works. What should I do? Should I offer a full refund?
Response: No liability for a defect not attributed to workmanship
Firstly, I hope that you can take this as a learning experience and make sure that all of your future quotations are in writing and include T&C’s and any caveats and/or exclusions.
You have entered into a contract with a consumer, which itself brings additional risks and obligations on you as a business, whilst giving additional protection to the consumer; there are also various Acts that protect consumers, such as recently introduced Consumer Rights Act 2015, which replaced the Unfair Contract Terms Act.
Although there may be no written terms, there will be implied terms, such as the supply of labour and materials must have been carried out using reasonable skill and care (if there is any design responsibility, the standard will be higher – fit for purpose).
Providing that the defect is not in the workmanship or materials and you warned the customer about the risk (under The Consumer Rights Act, if you made any pre-contractual statement and the client relied on this, then potentially you could be in breach if that reliance turned out to be false), I cannot see how you can be liable for a defect that is not attributable to either your workmanship or the paint supplied.
Even if you were liable, your customer is under an obligation to mitigate the cost of carrying out the remedial works, and that usually means that the customer must give you the opportunity to come back and make good.
If the customer was to take this further and bring a claim against you, the burden of proof would be on the customer. Your best defence would of course be that your services supplied were not defective and you carried out the work using reasonable skill and care – perhaps backed up with a report from the paint manufacturer or an independent expert.
I suggest that you write back to the customer and set out the background and the facts of the case. If the customer is going to make good by using another contractor, you should insist that you have the opportunity to inspect the defects complained of, and even look at taking a technical expert from the paint manufacturer with you who could then write up a report for possible future use at Court. And if the cause of the defect is not your workmanship or materials, why should you offer a refund?
© Michael Gerard 2017
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.