BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The ongoing dispute about the extent of, and the responsibility for, the removal of rust

in a second-hand car bought from Lancaster Sales and Service Ltd was the subject of an

item on Fair Go broadcast on TV2 at 7.30pm on 28 April 1997. The item reported

that an inspection by an independent panelbeater indicated that rust removal efforts

organised by the caryard were unsatisfactory.

On behalf of Lancaster Sales and Service Ltd, Ms Susan Denny complained to

Television New Zealand Ltd, the broadcaster, that the inspector's comments that the

panel beating had included newspaper and chickenwire was unfair, as it referred to

work carried out before the current owner had bought the car. She maintained that the

company had complied with the findings of the Motor Vehicles Disputes Tribunal

which had earlier heard the dispute.

Asserting that the complainant company had not complied fully with the agreement

between the parties as to the process to be followed to ensure that the vehicle reached

a warrant of fitness standard, TVNZ declined to uphold the complaint. It pointed out

that this agreement had been endorsed by the Disputes Tribunal.

Dissatisfied with TVNZ's decision, Ms Denny on the company's behalf referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

For the reasons below, the Authority upholds the complaint and orders the broadcast

of a summary of the decision.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). On this occasion, the Authority

decides the complaint without a formal hearing.

Problems with rust in a 1981 car sold by Lancaster Sales and Service Ltd two years

previously were canvassed in an item on Fair Go broadcast on 28 April 1997. The car

had a warrant of fitness (WOF) at the time of the original sale and had gained two

further WOFs during which time it had travelled 17,000 kilometres. However, because

of the failure to get a WOF recently due to rust, the item reported that the owner of

the car took the dispute to the Motor Vehicle Disputes Tribunal.

The item reported that the parties had reached an agreement about repairs before the

Tribunal's hearing. TVNZ later advised the Authority that the agreement, endorsed in

the Tribunal's decision, contained the following provision:

It seems that the vehicle requires repairs that may cost around $300.00 or

perhaps a little more in order to have the rust properly cut out and a warrant

of fitness issued. The work required is for the affected areas to have the rust

cut away back to good steel and replacement steel properly welded to good

steel in the vehicle. That work must be inspected before being painted or

otherwise covered, by the warrant of fitness issuing authority and passed for

warrant of fitness purposes. That work is now to be undertaken by Lancaster

Sales and Service, and the cost is to be borne half by that firm and half by Miss

Thompson [the owner of the car]. Lancaster Sales and Service will make a

suitable arrangement for Miss Thompson to pay off her half over a reasonable

period. Both parties agree to the matter being determined in this way.

In her complaint to TVNZ, Ms Denny of the complainant company asserted that Fair

Go had shown little interest in the company's side of the story. She also said that she

had declined to be interviewed on camera but had told Fair Go that she would co-

operate in every other way.

Ms Denny advised that the company had arranged for the repairs pursuant to the

above agreement. The car then passed a warrant of fitness test. Later, Fair Go

arranged for the car to be examined by an independent panelbeater, and it was an

aspect of this inspection, shown during the item, about which Ms Denny complained.

The independent panelbeater was seen during the item to pick a strip of paint off the

roof of the vehicle, and, she recalled, spoke about finding "last Tuesday's paper and

that led him to look for some chicken wire". He had said, she continued, that the use

of these things was an "old trick".

Ms Denny complained that this part of the item was unfair, and maintained that the

company had not arranged any cosmetic repairs. The panelbeater's report, she added,

mentioned that this work had been done before the current ownership, but this was

not broadcast.

TVNZ assessed the complaint under standard G4 of the Television Code of

Broadcasting Practice, which requires broadcasters:

G4   To deal justly and fairly with any person taking part or referred to in any

programme.

TVNZ stated that the central issue covered in the item was whether the company had

complied with the agreement reached before the Disputes Tribunal. Thus, it

continued, it was reasonable to seek an independent assessment of the work

undertaken. TVNZ stated:

You specifically object in your letter to Mr Houghton [the independent

panelbeater] being shown removing tape and newspapers from the roof of the

Honda – saying that Fair Go knew that your firm had done no cosmetic work on

the vehicle. We argue that the roof work was not cosmetic but was, as Mr

Houghton writes in his report, a fault in "the body structure". In other words a

safety matter. The sequence, while including a jocular remark from Mr

Houghton about "last Tuesday's newspaper" was certainly not intended as a

"joke" as your letter implies.

We accept that you may well have sent the vehicle to a panelbeater in the

process of attempting to bring it up to warrant of fitness standard. However,

Fair Go was not wrong in indicating that ultimate responsibility for delivering

the vehicle in a state to meet that standard rested with Lancaster Sales and

Services. The visual showing Mr Houghton picking away at the roof of the

vehicle indicated that the vehicle was not up to warrant of fitness standard, the

roof being one of the ten serious faults identified in his report.

Pointing out that Ms Denny had been given an opportunity to comment about the

dispute on the item, TVNZ concluded:

In reference to G4, TVNZ has been unable to pinpoint any part of the Fair Go

item in which Lancaster Sales and Services was unfairly treated. Your firm had

responsibility under the agreement cited in the Christchurch Motor Vehicle

Disputes Tribunal decision to bring the car up to a standard where it could be

issued with a warrant of fitness. Who actually was contracted to do that work is

not relevant: Lancaster undertook to honour the agreement.

In its report to the Authority, TVNZ enclosed a copy of the independent report. The

relevant part records:

- The roof seams are rusty (a common fault in this model), the right side having

been filled with newspaper and plastic filler to conceal more severe corrosion

and holes. ...

This vehicle has been subject to previous repairs, obviously prior to the current

ownership. The most recent repairs are of general poor quality and according to

the directions we have been required to work to, do not meet the standard

required by WOF certifiers.

In the subsequent correspondence, Ms Denny summarised her complaint in the

following manner:

In the clip shown, the panelbeater was seen removing paint and picking a scrap

of material out of the roof above the drivers door. The program makers knew,

and stated in the program, that all the work that we had arranged to be done was

in an unpainted condition and was to remain so for inspection. The WOF issuer

assures me the car had not been tampered with in that vicinity prior to the

program.

In addition Mr Houghton makes it quite clear in his written report on the car,

that work had been done prior to the current ownership and that was in fact the

case. The program commissioned the report so were well aware of its contents.

However, she commented, the remark about last Tuesday's newspaper reinforced the

impression given by the item that the work was done recently.

TVNZ later provided the Authority with material which suggested that the credibility

of the WOF issuer used by Lancaster Sales and Service was suspect.

The Authority notes that both the complainant and the broadcaster have referred to

matters peripheral to the aspect of the item complained about. The complaint

focussed specifically on the shot of the independent panelbeater (Mr Houghton) and

his comment as he poked through the painted roof of the car:

Well, here we have last Tuesday's paper by the looks of it. If we could dig it

out far enough, we might to be able to read some news. That's an old trick.

That and chicken wire.

Having watched the item the Authority is in no doubt that it is implied that these

repairs were done recently. The content and context suggested that this could have

been part of the repair work commissioned by the complainant company in order to

be seen to comply with the agreement approved by the Disputes Tribunal. This

implication was reinforced, as Ms Denny argued, by the reference to "last Tuesday's

paper". This suggested strongly that the "old trick" apparently had occurred in the

recent past.

In the correspondence, TVNZ has not argued that the repairs arranged by the

complainant company had been carried out in a shoddy way. Rather, it has contended

that the complainant company was responsible for all body work – including that

carried out in previous years – as it had agreed with the owner that the car was to be

brought up to WOF standard. This point, however, in the Authority's opinion, does

not focus on the relatively narrow issue raised in the complaint.

In a number of decisions, the Authority has acknowledged that Fair Go is a

programme which advances the consumer's perspective on issues. The item

complained about on this occasion appropriately recorded the car owner's

dissatisfaction with the car dealer who sold her a car, which was later found to have an

extensive problem with rust. It recorded the car owner's complaints and the car

dealer's responses. However, by implying that one of the car dealer's actions was to

have the roof repaired with newspaper and chicken wire, the Authority concludes, the

item was unfair to the complainant company.

For the reasons above, the Authority upholds the complaint that the broadcast

by Television New Zealand Ltd of an item on Fair Go on 28 April 1997,

breached standard G4 of the Television Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make a order under s.13(1) of the

Broadcasting Act 1989. Whereas the aspect complained about was a relatively brief

sequence in the item, in the Authority's opinion, it had both a striking visual and

verbal impact, and raised a question about the integrity of the Lancaster Sales and

Service Ltd. Accordingly, the Authority makes the following order.

Order

Pursuant to s.13(1) (a) of the Broadcasting Act 1989, the Authority orders

Television New Zealand Ltd to broadcast a brief summary of this decision,

approved by the Authority, arising from the complaint about an item on Fair Go

broadcast on 28 April 1997. The statement shall be broadcast during a Fair Go

programme within one month of the date of this decision.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
4 September 1997

Appendix

Lancaster Sales and Service Ltd's Complaint to Television New Zealand Ltd –

3 May 1997

Susan Denny, Chief Executive Officer of Lancaster Sales and Services Ltd, complained

to Television New Zealand Ltd about an item screened on Fair Go on 28 April 1997.

The item, she said, dealt with a 1981 Honda car sold by the company two years

previously. It had a new warrant of fitness at the time and had since gained a further

two WOFs during which time the owner, Leonie Thompson, had travelled 17,000

kilometres.

Ms Denny added that there had been some dispute about the rust in the vehicle which

went before the Motor Vehicle Disputes Tribunal, and its orders had been fully

complied with. However, the company had not been prepared to give Ms Thompson

her money back in full ($3,000) in view of the kilometers travelled.

Referring specifically to the lead-up to the item, she said she had told Fair Go's

reporter she was not available on the day nominated for an interview, but had

suggested some alternative days. When Fair Go refused to change its plans, she

consulted her solicitor and advised Fair Go that she declined to be filmed but would

co-operate in every other way.

In another conversation with Fair Go's reporter, she was told that she could put her

side of the story if she appeared on camera. Fair Go agreed with her, she continued,

that it was only interested in its "story" and that it would be filming outside the

business the next day. The salesman who sold the car initially agreed to appear on

film but, at his employer's instruction, withdrew. Fair Go's reporter's response, she

maintained, was abusive. Moreover, when filming next day, Fair Go again asked him

to appear on camera.

Turning to the complaint, Ms Denny wrote:

The substance of this complaint regards the comments of panel beater Wayne

Houghton. Mark Hannan (of Fair Go) knew we had done no cosmetic repairs

on the car and the issue was one of vehicle safety. He chose to show a clip of

Wayne picking a strip of paint off the vehicle above the door and commenting

"Looks like last Tuesday's paper to me, we may be able to read the news. That

is an old trick, that and chicken wire". Houghton's written report mentions

work done before the current ownership.

I taxed Mark Hannan with that only to be told it was a joke and no one would

really believe it. He took umbrage when I told him I thought the average TV2

viewer would be ready to believe anything they saw on the box.

She added:

This clip was very damaging for our business. We are neither panel beaters nor

do we issue warrants of fitness and send all our work out. This "joke" could

have serious repercussions on my livelihood and I do not think these people

should be allowed to frivolously play with the reputations of businesses.

A major story concerning panel beaters and some of their practices in regard to

insurance company decisions was covered in the media on the same day. As Fair

Go's reporter was not aware of this news, Ms Denny suggested it indicated the

shallowness of TVNZ's research.

In a second letter of complaint dated 9 May, Ms Denny said the item was incorrect

when it referred to a decision of the Motor Vehicle Dealers Disputes Tribunal. The

"decision" referred to was an informal agreement between the parties and the case

before the Tribunal was dismissed before a decision was reached.

TVNZ's Response to the Formal Complaint – 4 June 1997

Assessing the complaint under standard G4 of the Television Code of Broadcasting

Practice, TVNZ recalled that the item told the story of a car sold by Lancaster Sales

and Service which, after about two years, was found to be so badly affected by rust

that it was judged by the Automobile Association as uneconomic to repair. The item

had looked at the owner's ongoing dispute with the company.

TVNZ began:

Before outlining our deliberations and decision on your complaint, I note that

your letter includes some dissatisfaction over the approaches made to you and

your husband made by the Fair Go reporter while he was assembling the item. I

am sorry to read of your concerns in this area, but I have been assured that the

programme adopted the normal courtesies in dealing with all parties to this

dispute. Your concerns in this area have been drawn to the attention of the

reporter and the producer. It is our view that the formal complaints procedure

set down in the Broadcasting Act is confined to what is broadcast, and our

investigation of your complaint has concentrated on that.

The central focus of the item, TVNZ continued, was whether Lancaster Sales and

Service had complied with the agreement reached before the Motor Vehicle Disputes

Tribunal in Christchurch on 13 February 1997. That agreement contained the

following provision:

The work required is for the affected areas to have the rust cut away back to

good steel and replacement steel properly welded to good steel in the vehicle.

That work must be inspected before being painted or otherwise covered, by the

warrant of fitness issuing authority and passed for warrant of fitness purposes.

That work is now to be undertaken by Lancaster Sales and Service, and the cost

is to be borne half by that firm and half by Miss Thompson ...

... Miss Thompson also agreed that once the rust is removed and properly

repaired in the above manner sufficient for a warrant to be issued on this

occasion, she will have no further redress against the dealer should there be any

further rust causing difficulties in obtaining a warrant at a future inspection date.

Moreover, TVNZ insisted, the complaint was dismissed by the Tribunal only on the

basis that the dispute would be resolved on that basis.

Given that situation, TVNZ did not regard it as unfair to report that the Company had

not complied fully with the agreement; for example, by painting the work before

inspection. In these circumstances, TVNZ asserted that it was fair to seek an

independent assessment. The work shown on the item being criticised – removing tape

and newspaper from the roof – was a matter of body structure. The comment was

not made as a joke. TVNZ added:

We accept that you may well have sent the vehicle to a panelbeater in the

process of attempting to bring it up to warrant of fitness standard. However,

Fair Go was not wrong in indicating that ultimate responsibility for delivering

the vehicle in a state to meet that standard rested with Lancaster Sales and

Services. The vision showing Mr Houghton picking away at the roof of the

vehicle indicated that the vehicle was not up to warrant of fitness standard, the

roof being one of ten serious faults identified in his report.

The programme correctly reported that the Honda was issued with a warrant of

fitness certificate after the work was undertaken. However, the programme was

also correct in expressing doubts about whether the vehicle deserved the

certificate, and TVNZ is aware that the firm which issued the warrant, Opawa

Garage, now acknowledges that the car was not in a fit state to receive it.

As Mr and Ms Denny had been offered an opportunity to comment but had declined

the opportunity, TVNZ argued that the Company could not object on the grounds

that its side of the story had been inadequately told. The reference to the story about

panel beaters and insurance companies, TVNZ said, indicated the complainant's

misunderstanding of the role of Fair Go as a consumer watchdog.

In conclusion, TVNZ denied that the Company had been treated unfairly in the item

which reported the Company's failure to honour the agreement to bring Ms

Thompson's car up to warrant of fitness standard.

The Complainant's Referral to the Broadcasting Standards Authority – 13 June

1997

Dissatisfied with TVNZ's decision, Ms Denny on behalf of the complainant company

referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

TVNZ's Report to the Authority – 20 June 1997

On the basis that the referral did not advance any reasons for the complainant's

dissatisfaction, TVNZ sent the Authority a copy of the decision of the Motor Vehicle

Disputes Tribunal and the independent report it had obtained. It did not comment

further.

The Complainant's Final Comment – 30 June 1997

In her response on behalf of the complainant company, Ms Denny maintained that

TVNZ had not addressed the central issue. The item showed the independent panel

beater removing paint and some material from the roof of the car above the driver's

door, and Ms Denny observed:

The program makers knew, and stated in the program, that all the work that we

had arranged to be done was in an unpainted condition and was to remain so for

inspection. The WOF issuer assures me the car had not been tampered with in

that vicinity prior to the programme.

The work shown had been done prior to the current ownership and was presented, she

insisted, as a joke. Further, she argued that the item's intention to broadcast a good

story had advanced a fact with which she was not involved.

TVNZ's Response – 7 July 1997

TVNZ sent the Authority a copy of a report to the owner of the Honda car, Ms

Thompson, from Motor Safe which said that the warrant of fitness for the car issued

on 6 April should not have been issued as the car did not meet the appropriate

standards. Motor Safe noted that it was the authorised body to audit light vehicle

safety inspection. TVNZ observed that it cast doubt on the credibility of the issue of

the warrant of fitness.

The Complainant's Response – 21 July 1997

Because she considered that the broadcaster had both ignored the core of the complaint

and introduced an extraneous matter, Ms Denny pointed out first that the roof area

was not part of the bodywork under investigation until Fair Go became involved.

Secondly, she said, the warrant had been issued by Opawa Motors in the usual course

of its business.

Ms Denny expected the Authority to focus on the matter in dispute when it

determined the complaint.