Takeaway disaster

fthl

pendulum wrote: »

Didn't you read what I said about claiming from his car insurance policy?

Yep, I just don't have as much faith as you that all the right bells and whistles are in place. Plus, I'd rather sue a take-away and a website rather than an insurance company. I think it'd be easy, quicker, and cheaper, especially based on my experience of dealing with them. What if the relevant cover was provided by the take-a-way?

I think you are way off the mark, they will defend themselves as they have a strong case and also wouldn't want to set a precedent.

We don't agree on the strength of their case, and it can't be that strong as everything I've read over the past couple of days about agency shows that there are a number of cases that concern whether an agency does or does not exist. In all of them the debate for the trader has been very expensive. It seems that the tax situation is very important. If JE pay tax on the cash they take, they won't be an agent. I suspect that this is the case. That at least is my reading of the spearmint rhino case, which I accept might be wrong.

I'm also struck that so far no-one has yet managed to explain to me why this was agency, especially in the absence of negotiation, the ability to bind the principal etc. I don't think this issue is very clear at all. It might be agency, I'm just not yet convinced.

As for precedent value, there is no precedent value in the small claims court, and even if there were, this is a further argument as to why they'd settle - they wouldn't want the risk of losing at a hearing.

Depending on the value of the actual claim I think they'd settle, or at the very least you'd have the court sort it all out for you and determine who was liable. Sue just the driver or one party and you risk having to do it all over again if you lose. And paying for it.

Add to this many sensible commercial outfits settle claims they think they'd win because it is easier and cheaper to do so. It is a commercial reality.

pendulum

fthl wrote: »

Yep, I just don't have as much faith as you that all the right bells and whistles are in place. Plus, I'd rather sue a take-away and a website rather than an insurance company. I think it'd be easy, quicker, and cheaper, especially based on my experience of dealing with them. What if the relevant cover was provided by the take-a-way?

You show a basic lack of understanding about insurance. You do not sue the driver's insurance company, you sue the driver. He's the one who caused the damage in what counts as a car accident. He's the one who the courts are most likely to find liable. You're most likely to get your money because either the driver, or his insurer, could settle.

If the relevant insurance was set up by the takeaway, then nothing changes; the takeaway's insurer will pay rather than the driver's. You still sue the driver.

It's a huge error to sue JE and the takeaway whilst leaving the person who actually caused the damage off the hook. I hope the OP doesn't feel sorry for the driver and is reluctant to persue for that reason.

Some house insurance policies have free legal advice attached. Perhaps give them a call and see who they think you should claim from?

fthl

You show a basic lack of understanding about insurance.

No, just cynicism based on experience. And whoever's name is on the N1, it would be the insurance company I would actually be dealing with.

Also, the driver might not be legally liable if he was acting as an employee or an agent or similar of the take-a-way. In which case action against him might not succeed because whilst he is responsible, he might not be liable. Further, if there are two policies in place, the take-a-ways and the drivers, then they'll be further dispute with each arguing, probably for years, about which should pay. Then there'll arguments about whether the driver was an employee or subcontractor etc etc. All this would be a lawyer's dream...

Even a basic car accident claim can take years to sort. More complex ones many years.

It's not about fault, but liability. So I'd still sue the take-a-way and JE. OR claim on my house insurance and let them do it, if they wished to. Which they probably won't, opting instead to just charge me more next year, because, lets face it, insurance companies aren't really our friends, are they?

System

I'm suprised this argument is still going on! I do have one question about JE and agencies that maybe fthl can answer. You can use JUSTEAT to order food but then say that you wish to pay on the door and therefore JUSTEAT are never paid by you and just pass your order onto the takeaway company. In this scenario as there are is no financial transaction between you and JE would you still regard them as being responsible for this damage?

Incidently the theory that claiming on your home insurance increases your premiums is a myth, although your home insurance probably would go up the next year, if you switch to a new provider the fact you have claimed on your previous provider won't affect the price of the new provider(I believe I saw Martin himself on Daybreak recently declaring this). Therefore if the OP can claim on his own insurance he may be best doing that.

fthl

You can use JUSTEAT to order food but then say that you wish to pay on the door and therefore JUSTEAT are never paid by you and just pass your order onto the takeaway company. In this scenario as there are is no financial transaction between you and JE would you still regard them as being responsible for this damage?

Nope.

.....

pendulum

fthl wrote: »

...OR claim on my house insurance and let them do it, if they wished to. Which they probably won't, opting instead to just charge me more next year, because, lets face it, insurance companies aren't really our friends, are they?

Well, you got that right. They tend to prefer to settle smaller claims and inflict a no claims bonus loss on their insured, rather than fight for their insured's rights. With this in mind it makes it more likely the insurer will settle the OP's relatively small claim, rather than trying to persue every avenue to defend their driver (which will probably result in their defeat anyway) and costing them thousands in legal costs in the process.

In all likelyhood, they will just treat this as a normal fault claim, as the driver drove in to and damaged a stationary object, and pay up relatively quickly. That's if the driver does not offer to pay up from his own pocket first.

Let us know how it goes OP?

Flyboy152

amus wrote: »

You didnt mention whether you had contacted the manager of the takeaway since to discuss them paying for the repair? I would say if Just Eat are stating in their terms and conditions that they are not liable for the restauraunts you wont get anywhere trying to get compensation from then. Your best bet would be correspondance directly with the takaway manager I would think.

I find responses like this to very odd and it is not an isolated occurrence. It's as if the posters haven't read any of the many threads regarding contract terms and conditions. It doesn't matter what is written into a contract, or terms of business letters or list of conditions, the fact remains that if the term is unfair, unlawful or unclear, it doesn't matter whether it is written in ten foot high letters and signed in blood, it won't stand the test. I could, for example, run a restaurant and put a huge notice saying that if anyone gets food poisoning it is not my responsibility, they should take it up with the dead pig they have just eaten. Now, I am sure that no one would expect me to get away with that.

Now, in this instance, it is unlikely that Just Eat are solely liable, but they may have a joint responsibility. But the likelihood is that it is the take-away who will have to foot the bill; in spite of what Just Eat's terms of business says.

Flyboy152

HappyMJ wrote: »

Just-Eat is acting as an agent and is in no way responsible for the drivers of takeaways nor are they responsible for the takeaways themselves. The driver should have insurance hopefully covering business usage. If not, it's a criminal offence of driving without insurance. That insurance should cover the driver's negligence in any third party action. If the insurance won't pay then launch a civil claim against the driver. They usually are self-employed so even the restaurant won't be liable.

And this is one of the issues the OP is going to face. Does he tell the insurance company that the driver doesn't have the relevant insurance and therefore scuppers his chance of getting the repairs done, or does he ignore it and get the driver's SDP cover to pay? However, it is not necessarily the driver's liability, it is more likely the take-away is either solely or jointly responsible.

Flyboy152

Crazy_Jamie wrote: »

Generally speaking, agents act with the authority of their principal, and as long as they stay within that authority it is the principal that is liable for their actions. Agents themselves become liable relatively rarely, and for them to do so it almost inevitably requires them acting outside of their authority and/or not disclosing the existence of the agency relationship to the third party. There are exceptions to those general rules, as ever, but unless people have a desire to learn about different types of authority and such I'm not going to go into the law of agency in any more detail than that.

As for the second question, the answer is simple by just looking at the service that Just Eat provides. It is essentially a search engine for local takeaway that also allows customers to order their food through the website directly. It is not Just Eat that pays the takeaway providers; it is the takeaway providers that pay Just Eat to receive the benefit of their service. Hence why Just Eat are the agents of the takeaway providers, and not vice versa.

I am not so sure that is as clear as one might think. The customer pays the agent, the agent pays the take-away. It could be argued that the the agent is paying the take-away.

Flyboy152

Parva wrote: »

Is this yet another troll? I await details of exactly what damage a take-away driver could do to someones driveway....

Back on topic, the driver himself is solely to blame and trying to persue either 'Just-Eat' or the take-away would be fruitless (unless the take-away actually 'employed' the driver rather than the driver working on a self-employed basis). Damn, I'm even complicating things just thinking about it.

This post does however illustrate the blame culture that we all live in now and it's an absolute joke. Everyone blames everyone else for the most ridiculous reasons and the ambulance chasers and whatnot are driving Porche's on the back of it all. Noooo, you got me started! Ok, I best stop now.

What damage are you referring to here? Did the driver deposit a squashed slug on your driveway as he delivered your take-away? Just wondering.

EDIT: The driveway damage is terrible and I feel your pain, the cold and inedible take-away - issue court summons on the lot of 'em, that's scandalous!

Oh for goodness sake, an OP who doesn't respond with a few minutes of being asked a question is suddenly a troll? Give it a rest.

Here's a thought, maybe he has a better life than you and gets out more often.