Pls Help: Dell have lost my old hard drive

weegie.geek

So if Dell had accidentally damaged the hard drive on-site, beyond repair where if they hadn't data would be recoverable, they'd be liable? No, of course they wouldn't. Whether data is retrievable or not, Dell owe him a drive and nothing more.

He was the one who made sure the only copies of those files were on the hard drive.

Equaliser123

weegie.geek wrote: »

It's not a matter of wise in hindsight, the terms and conditions have always been this way, for pretty much every company, drive manufacturer and pc repair company. Data recovery from broken drives is very expensive. Drives aren't. Backing up isn't, in comparison with data recovery.

Backing up isn't a new concept. Us "wise in hindsight" people have been banging on about it for decades. It's not hindsight, we've been warning people for ages. Most clearly consider it such a tiny risk, or consider their data to be worth less than a drive or blank DVDs to back things up onto. Until people like you come along suggesting that they may have a legal case.

You're wrong though, quantifying loss will be easy, given that the loss is of a broken hard drive, which was taken away in error BECAUSE the dell tech was there replacing it because it was broken. The value of what was lost is that of a broken hard drive. How would the OP prove what was even on it?

Given that this machine has had 2 drives replaced before this incident, the OP might (imo should) get a whole new replacement PC from Dell, but this just goes to emphasize that the OP was negligent in not backing up. This PC has a track record of drives dying in it. PSU fault, insufficient cooling, something like that.

Look pal. Calm yourself down a bit.

Now, I can only go on my experience as a technology lawyer. Yes, we all know that the OP should have carried out a back-up. They didn't. Dell take their victim as they find them.

I really wish people wouldn't keep harping on about Dell's T's and C's. a) a coach and horses can be driven through them; and b) the UCTA would totally apply here as it is an unreasonable limitation of liability.

Quantifying loss will be difficult - I suspect I have been in rather more quantum debates that you. However, Courts can and do award for sentimentality losses and not simply actual losses incurred.

OP negligent? Possible. In which case Dell would argue that damages should be reduced due to contributory negligent. However, liability would not be extinguished.

Given that the OP paid for the defunct HD, the action would be based in contract rather than tort and so a defence of con neg would be tricky.

It is quite wrong to say that Dell have no case to answer.

JasX

mkbswimstar wrote: »

My laptop crashed and the hardrive broke just after I uploaded the photos! I didnt have time to download them elsewhere as my laptop wouldnt work.

just to be clear none of us are having a go, just got caught up arguing a technicality with some interlopers

any luck recovering the deleted original from the memory card?

weegie.geek

Equaliser123 wrote: »

Look pal. Calm yourself down a bit.

:rotfl:

You, sir, are an !!!.

Equaliser123

weegie.geek wrote: »

:rotfl:

You, sir, are an !!!.

Brilliant response. Suggest you keep to the technical stuff and leave law for lawyers. OK?

JasX

Equaliser123 wrote: »

It is quite wrong to say that Dell have no case to answer.

Well here's how I see a case stacking up

Photo's sentimental value £x -any examples here, we don't appear to be talking long lost dead relatives, more holiday snaps and pictures of young children that are still around, I'm guessing in the high hundreds at best.

munis data recovery cost from a dead drive £400
minus substantial contributory negligence from customer -xx%

=compensation.


minus court fees
minus legal fees of specialist lawyer

=net value of taking legal action to be compared with effort and risk involved (ie what you'd pay if unsuccessful)

I can't see pursuing Dell working out as anywhere near economical, unless I suppose you happen to be the technology lawyer who gets paid either way, and would have a vested interest in leading the customer on :A

Equaliser123

JasX wrote: »

I fail to understand why it is unfair for Dell not to require that the customer isn't being grossly negligent with their backup practices.

I'd like to see that try to stand up in court.

It isn't unfair. But it would be an unfair exclusion clause - i.e. they should not escape liability because a domestic user did not follow their requirement.

It is also not an intervening act (or novus actus interveniens in legal terms) in the negligence or breach of contract by Dell i.e. the failure to back up did not actually cause the loss - Dell's walking off with the HD did.

Oh, and English (civil) law doesn't recognise the concept of gross negligence.

Equaliser123

JasX wrote: »

Well here's how I see a case stacking up

Photo's sentimental value £x -any examples here, we don't appear to be talking long lost dead relatives, more holiday snaps and pictures of young children that are still around, I'm guessing in the high hundreds at best.

munis data recovery cost from a dead drive £400
minus substantial contributory negligence from customer -xx%

=compensation.


minus court fees
minus legal fees of specialist lawyer

=net value of taking legal action to be compared with effort and risk involved (ie what you'd pay if unsuccessful)

I can't see pursuing Dell working out as anywhere near economical, unless I suppose you happen to be the technology lawyer who gets paid either way, and would have a vested interest in leading the customer on :A

Wrong again. It would be a small claims action as value would be less than £5,000 where there are no cost implications and the parties are discouraged to use lawyers.

Dell's legal team are a decent bunch. No way would they contest this.

No vested interest here. My hourly rate is rather more than the value of the claim.

PS for the reasons above, I don't think a con neg defence would work.

DVardysShadow

weegie.geek wrote: »

So if Dell had accidentally damaged the hard drive on-site, beyond repair where if they hadn't data would be recoverable, they'd be liable? No, of course they wouldn't. Whether data is retrievable or not, Dell owe him a drive and nothing more.

He was the one who made sure the only copies of those files were on the hard drive.

You are not thinking this through very thoroughly.

Your 'No, of course they wouldn't' would only apply if the damage had occurred during the course of repair as a result of a repair action. If the guy had picked up the drive and used it as a fly swat, then they would be liable - because it would be an action plainly outside the scope of a repair action.

Similarly, their exclusion clauses would not and should not protect them from their action in taking the HD, because this action is outwith the scope of a repair.

DVardysShadow

JasX wrote: »

just to be clear none of us are having a go, just got caught up arguing a technicality with some interlopers

any luck recovering the deleted original from the memory card?

Interlopers who happen to be correcting poor legal advice from the non-interlopers.