Builder dispute with neighbour

Gra76

DMWK wrote: »

I think the total cost of replacement and upgrade (gravel boards and better quality panels) was in the region of £3500 for about 30 panels, a few posts and some trellis. I think that was very expensive for the work.

Do you know how many panels would have needed replacing due to the damage your builder did? If so there's an easy way to solve it. Divide the £3,500 by the 30 panels leaving a figure of £116.66 per panel (including the relevant fittings, trellis and post costs) and multiply that by the number of damaged panels.

If your builder damaged 12 or so panels (unlikely I'd suggest) then I guess your neighbour is being fair in requesting the £1,500 towards it. If your neighbours panels were 6ft wide then that would mean your builder would have had to damage 72ft (plus the width of the posts) of fencing.

I don't imagine for a second that your builder did that amount of damage. Not in a million years...I don't think your builder should be paying for 'upgraded' fencing either but that's a different arguement altogether. The suggestion I've given seems extremely fair to me. Divide the total cost by the number of panels. Multiply out that figure by the number of panels damaged by the builder. That should be the total cost the builder should have to stump up and not a penny more unless he wants to add 'inconvenience compensation' into it.

DVardysShadow

keystone wrote: »

Its not your problem. Its between the builder and the neighbour. Neighbour is being completely stupid to expect the builder to contribute to half the cost of the replacement of the entire fence rather than just coughing up for 100% of the replacement of the bit he damaged.

Neighbour is even thicker if they expect you to make you the shortfall on what the builder has offered against their request and not being very neighbourly either so you owe them nothing in the "good neighbour" stakes.

Walk away from it and let them sort it our between themselves.

Cheers

While I agree with most of this, the OP, in law, is entirely responsible to the neighbour for any damage, because the builder was there as the servant of the OP. Masters are responsible for the acts of their servants. The relevant legal concept is 'vicarious liability'.

The builder is of course liable to the OP for any damages which the OP is responsible for.

For this reason, OP and builder have a shared interest here and before this goes much further OP and builder should get their heads together, understand vicarious liability and make sure that they are understanding the same thing.

I incline to think that the OP should offer 5% of the cost of replacement of the damaged panels, on the grounds that a fence has a life of 20 years and that the builder has reduced the life of those panels by 1 year - as evidenced by the others being replaced as life expired.

So,

• £3500 for 30 panels [reasonable, I think] - £120/panel
• 4 panels is £480
• 5% of that is £25

I would say a generous offer is £350 - I would start with a 'without prejudice' offer of £250 in full and final settlement of all claims in relation to the fence and go to £400 if neighbour will negotiate. Builder obviously to foot this - but better for him than the stupid money being asked.

keystone

DVardysShadow wrote: »

While I agree with most of this, the OP, in law, is entirely responsible to the neighbour for any damage, because the builder was there as the servant of the OP. Masters are responsible for the acts of their servants. The relevant legal concept is 'vicarious liability'

You are correct but surely this applies in the case of a contract of service (ie employment within a business) as opposed to a contract for services (ie emplyment of an independent contractor). In this case the OP and his builder have a contract for services. I do not believe that the OP has any liability in this instance. The builder has already admitted liability and made an offer in compensation direct to the injured party. Unfortunately that offer is in excess of that calculated by you (which seems to me to be quite equitable) and its a pity he didn't do the same sums as its unlikely that the injured party will even consider an alterative offer at a lower level of compensation. I still think the OP should stay out of it but if he has any doubts then he should consult a lawyer. This is a DIY (ish) forum not a legal forum.

Cheers

ian103

the builder should also have insurances to cover this damage (he is probably paying himself as its cheaper than the excess) not the OP problem in my view, responsiblity lies with builder as damage caused through negligence

DVardysShadow

keystone wrote: »

.... but surely this applies in the case of a contract of service (ie employment within a business) as opposed to a contract for services (ie emplyment of an independent contractor). In this case the OP and his builder have a contract for services. I do not believe that the OP has any liability in this instance. The builder has already admitted liability and made an offer in compensation direct to the injured party. Unfortunately that offer is in excess of that calculated by you (which seems to me to be quite equitable) and its a pity he didn't do the same sums as its unlikely that the injured party will even consider an alterative offer at a lower level of compensation.

Wikipedia seems to support your view, but it does have this US centric perspective which seems to assume that US law applies across the globe.

However, I have always been given to understand that in relation to work being done on premises, the owner of the premises is responsible for any adverse consequences arising from the work carried out on his premises - the chain of liability arises from the relationship of the respective property owners in the first instance rather than from whether the relationship between the owner of the worked on premises and the contractor is for employment or services.

Suppose the builder had backed his van into a neighbour's wall. A lot would depend on the extent to which the act of reversing was directly attributable to OP's building works. At a certain number of doors down the road, the builder would be liable in his own right, as he might be if just turning in the road. But if he knocked down the wall in the process of reversing to deliver materials to the OP's premises, OP may be liable in the first instance. The degree to which the borderline between OP being vicarioulsy liable and the builder being liable in the first instance will probably be affected by the nature of the contract - whether of employment or for provision of services. If it was employment and the builder was turning in the road in the OP's own vehicle, liability on the OP would extend a long way.

Although the neighbour could claim against the contractor directly, in law the liability route via the master will remain, so that the 'injured' neighbour can claim against the Master who may have more means than the Servant, who may be a man of straw and not able to fulfill any judgement against himself.

It is particularly nasty in this instance, in that the servant has made a generous offer in his own right - but the neighbour is [within her rights] bothering the OP for more [which is an unreasonable amount]. I have little doubt that if this turned nasty, the neighbour would be suing the OP rather than a builder - and I suspect that this is what a solicitor would advise her to do [particularly if fed a selective account of events so far].

For these reasons, I believe that OP would do well to make a reasonable offer at the earliest stage which would meet or exceed a settlement in court. This would also leave the neighbour to foot the costs if she took it to court.

keystone

Tippytoes wrote: »

Concur with recent posters. The neighbour is entirely responsible for what goes on with/in/at her property....not the builders who actually caused the damage.

Well I didn't say that in the post above yours and I could not agree less.

As for any damage caused, strangely enough it is for the neighbour to prove the builders didn't cause it.

Eh? Do you mean did cause it? In any event whichever it was you meant this statement is pretty close to being balderdash. If it gets to court a civil tort (which is what this is) is decided on the balance of probability. There is no equivalent burden of proof (as in a criminal case) in a civil action and in any event builder has already offered compensation which will be taken into account in the balance of probability decision.

Cheers

DVardysShadow

ian103 wrote: »

the builder should also have insurances to cover this damage (he is probably paying himself as its cheaper than the excess) not the OP problem in my view, responsiblity lies with builder as damage caused through negligence

The builder is responsible to the OP. The OP is responsible to the neighbour.

If the neighbour sued the OP, some damages would be awarded against the OP. However, the OP could then sue the builder and would win, whereupon the builder's insurance would be paying out.

DVardysShadow

keystone wrote: »

Tippytoes wrote: »

... As for any damage caused, strangely enough it is for the neighbour to prove the builders didn't cause it.

Eh? Do you mean did cause it? In any event whichever it was you meant this statement is pretty close to being balderdash. If it gets to court a civil tort (which is what this is) is decided on the balance of probability. There is no equivalent burden of proof (as in a criminal case) in a civil action and in any event builder has already offered compensation which will be taken into account in the balance of probability decision.

Cheers

When tippytoes refers to' the neighbour', I believe that they really mean the OP. If you read it that way it makes sense "... As for any damage caused, strangely enough it is for the OP to prove his builders didn't cause it." although I don't entirely agree - I would say that the balance of probability is weighted slightly against the OP and the builder.

There is a burden of proof [the converse of the presumption of innocence] in both criminal and civil cases - what differs is the standard of proof, which you correctly identify as ''balance of probability" in a civil case.

If the builder has been wise, he will have made his offer 'without prejudice', which means that it will play no part in establishing liability and more importantly, will not bind him as to the amount should the case go against him - so if less is awarded, that is all he will pay - but if his 'without prejudice' offer was more than the court decides, costs will go in his favour.

keystone

DVardysShadow wrote: »

Wikipedia seems to support your view, but it does have this US centric perspective which seems to assume that US law applies across the globe.

I was referring to the way things stand in England.

................If it was employment and the builder was turning in the road in the OP's own vehicle, liability on the OP would extend a long way.

You are right but OPs builder is employed as an independent contractor and not as an employee. Its important not to get hung up on the word employment. In 1991 in the case of Alcock v Wraith Lord Justice Neill said: "where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work" I think if the neighbour took this to court he would get well and truly spanked by the Judge.

Although the neighbour could claim against the contractor directly, in law the liability route via the master will remain, so that the 'injured' neighbour can claim against the Master who may have more means than the Servant, who may be a man of straw and not able to fulfill any judgement against himself.

I am afraid we have to agree to disagree. There is no liability IMHO on the OP here. Nor do I believe the neighbour is at all within his rights to try and claim more from the OP for one solitary microsecond.

OP please consult a lawyer if you are concerned. Advice on the forum (including mine) cannot be relied upon if it goes legal.

Cheers

DVardysShadow

keystone wrote: »

.... You are right but OPs builder is employed as an independent contractor and not as an employee. Its important not to get hung up on the word employment. In 1991 in the case of Alcock v Wraith Lord Justice Neill said: "where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work" I think if the neighbour took this to court he would get well and truly spanked by the Judge

keystone wrote: »

... I am afraid we have to agree to disagree. There is no liability IMHO on the OP here. Nor do I believe the neighbour is at all within his rights to try and claim more from the OP for one solitary microsecond.

You do realise you are agreeing to disagree with the case you cite?

http://www.planningandpartywall.com/YOU_PAY_FOR_THE_SINS_OF_YOUR_BUILDER

In the celebrated case of Alcock v Wraith and Swinhoe, the builder formed a bad joint between the property owner’s new roof and the neighbour’s existing roof that subsequently leaked and caused damage to the neighbours property. The court found that the property owner was liable to the neighbour even though it was his builder that was at fault.

Are you sure you are not quoting some preliminary rambling from the Judge where he was politely agreeing to some arguments made by one of the Learned appearing before him - prior to awarding the ruling to the other Learned?

edit: A little googling shows that Neill was stating the general principle. It was the exception which applied in Alcock v Wraith. The owner of premises retains the non delegable responsibilities of his ownership of the premises.