B & Q - Paint falls from shelf onto clothes

leachyd

Wow.........

BJV

OP I have just read some of the comments and while some may at first glance seem a little harsh I think what everyone or at least the majority of the posts are saying is that the £100 while it may not be exactly what you want is a reasonable offer.


Please also remember that this is a public forum and that everyone has there right to their own opinion. It may not always be the same as yours but it is equally as valid in their eyes.


Personally I would take the £100 and go shopping in Homebase instead!

powerful_Rogue

Kesstra wrote: »

How do you know these clothes were not bought over the years or given as gifts.
I have a £50 coat. I didn't pay for it! I have a pair of £50 boots. I didn't pay for those either. There is £100 worth of clothing that has lasted me and will last me years. Better than primark any day (Sorry for those of you that shop there!)

Thats the point a lot of members are getting at - betterment.

ThumbRemote

unholyangel wrote: »

It may cost £70 for brand new replacements but as I said before, that is a betterment.

dacouch wrote: »

A court of law would deem that "wear and tear" be deducted from the new cost of the clothes.

Money-Saving-King wrote: »

Op you're being unrealistic, your payout should be like for like, not old for new.

powerful_Rogue wrote: »

Thats the point a lot of members are getting at - betterment.

There seems to be a misunderstanding of 'betterment' within this thread, that misses the nuance of the legal position - namely that betterment only applies if a second-hand replacement is readily available.

So with cars it is acceptable for an insurer to pay the market value of a write-off, as there is a large second-hand car market. But this is not the general position.

The legal situation is as described in the case of Harbutts Plasticine Ltd v Wayne Tank and Pump Co Ltd 1970. A factory burned down, the damages awarded were the cost of building a new factory, not the actual value of the existing factory. (See http://swarb.co.uk/harbutts-plasticine-ltd-v-wayne-tank-and-pump-co-ltd-ca-1970/ )


See also http://www.blmlaw.com/2301/4253/objects/blm-e-bulletin-topic/no-deduction-for-betterment.html for a case where a drive had to be repaired.

Now in OPs case the question would be 'can she easily buy the same clothes in the same condition to replace those damaged'. A quick check on ebay would show if this is the case. However there is such a variety of clothing and footwear available that it's extremely unlikely. Just because similar clothing may be available cheaper is of no concern - the clothing in question is the make and style that was damaged, not some other variety. In any case, if B&Q wanted to demonstrate that the same style clothing was easily available second hand, they could go and find it.

As such no deduction for betterment should be made, and the payment should be the full replacement value of the clothes.

All that should be necessary is to provide proof of the value of buying the replacements, and B&Q should give that much money.

powerful_Rogue

ThumbRemote wrote: »

There seems to be a misunderstanding of 'betterment' within this thread, that misses the nuance of the legal position - namely that betterment only applies if a second-hand replacement is readily available.

So with cars it is acceptable for an insurer to pay the market value of a write-off, as there is a large second-hand car market. But this is not the general position.

The legal situation is as described in the case of Harbutts Plasticine Ltd v Wayne Tank and Pump Co Ltd 1970. A factory burned down, the damages awarded were the cost of building a new factory, not the actual value of the existing factory. (See http://swarb.co.uk/harbutts-plasticine-ltd-v-wayne-tank-and-pump-co-ltd-ca-1970/ )


See also http://www.blmlaw.com/2301/4253/objects/blm-e-bulletin-topic/no-deduction-for-betterment.html for a case where a drive had to be repaired.

Now in OPs case the question would be 'can she easily buy the same clothes in the same condition to replace those damaged'. A quick check on ebay would show if this is the case. However there is such a variety of clothing and footwear available that it's extremely unlikely. Just because similar clothing may be available cheaper is of no concern - the clothing in question is the make and style that was damaged, not some other variety. In any case, if B&Q wanted to demonstrate that the same style clothing was easily available second hand, they could go and find it.

As such no deduction for betterment should be made, and the payment should be the full replacement value of the clothes.

All that should be necessary is to provide proof of the value of buying the replacements, and B&Q should give that much money.

The two links you provided are very specific cases. In the case regarding the rebuilding on the factory, it states:

But the defendants did not call any evidence to make out a case of betterment on these lines and we were told that in fact the planning authorities would not have allowed the factory to be rebuilt on the old lines. Accordingly, in my judgment, the capital sum awarded by the judge was right.

In the second case it states:

Claimants ought therefore to stand firm against the usual argument for deduction in damages to reflect betterment in the case of damage to buildings.

As such, you cant automatically state that "betterment" isnt relevant to the OPs situation. That would be for a judge to decide if it went that far.

Heres a link regarding replacement clothing and betterment.
http://www.lampkins.co.uk/advice/helmet-and-clothing-claim-following-bike-accident/

unholyangel

ThumbRemote wrote: »

There seems to be a misunderstanding of 'betterment' within this thread, that misses the nuance of the legal position - namely that betterment only applies if a second-hand replacement is readily available.

So with cars it is acceptable for an insurer to pay the market value of a write-off, as there is a large second-hand car market. But this is not the general position.

The legal situation is as described in the case of Harbutts Plasticine Ltd v Wayne Tank and Pump Co Ltd 1970. A factory burned down, the damages awarded were the cost of building a new factory, not the actual value of the existing factory. (See http://swarb.co.uk/harbutts-plasticine-ltd-v-wayne-tank-and-pump-co-ltd-ca-1970/ )


See also http://www.blmlaw.com/2301/4253/objects/blm-e-bulletin-topic/no-deduction-for-betterment.html for a case where a drive had to be repaired.

Now in OPs case the question would be 'can she easily buy the same clothes in the same condition to replace those damaged'. A quick check on ebay would show if this is the case. However there is such a variety of clothing and footwear available that it's extremely unlikely. Just because similar clothing may be available cheaper is of no concern - the clothing in question is the make and style that was damaged, not some other variety. In any case, if B&Q wanted to demonstrate that the same style clothing was easily available second hand, they could go and find it.

As such no deduction for betterment should be made, and the payment should be the full replacement value of the clothes.

All that should be necessary is to provide proof of the value of buying the replacements, and B&Q should give that much money.

Did you even read/research that article before linking it?

"It was clear in the present case that it was reasonable for the plaintiffs to rebuild their factory, because there was no other way in which they could carry on their business and retain their labour force. The plaintiffs rebuilt their factory to a substantially different design, and if this had involved expenditure beyond the cost of replacing the old, the difference might not have been recoverable, but there is no suggestion of this here. Nor do I accept that the plaintiffs must give credit under the heading of 'betterment' for the fact that their new factory is modern in design and materials. To do so would be the equivalent of forcing the plaintiffs to invest their money in the modernising of their plant which might be highly inconvenient for them. Accordingly I agree with the sum allowed by the trial judge as the cost of replacement"

"I can well understand that if the plaintiffs in rebuilding the factory with a different and more convenient lay-out had spent more money than they would have spent had they rebuilt it according to the old plan, the defendants would have been entitled to claim that the excess should be deducted in calculating the damages. But the defendants did not call any evidence to make out a case of betterment on these lines and we were told that in fact the planning authorities would not have allowed the factory to be rebuilt on the old lines. Accordingly, in my judgment, the capital sum awarded by the judge was right."

Those quotes can be found here btw:
http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd031204/lagden-2.htm

And with regards to your second link:

This is of course different to the case of chattels where there is readily available second-hand market in which circumstances the claimant will normally be restricted to an indemnity award rather than reinstatement

Also to note that there is a second hand market readily available. Perhaps not for those exact items but for comparable items there are.

The rules are different also for items with a indefinite lifespan (like buildings if properly maintained) and a definite lifespan.

Using your logic if I was crashed into, my car written off and I couldnt source my car second hand, i'd be entitled to the cost of a new one. That is not the case, i'd be expected to go for a comparable car and be awarded the value of my destroyed) car.

ThumbRemote

powerful_Rogue wrote: »

The two links you provided are very specific cases. In the case regarding the rebuilding on the factory, it states:

The 'plasticine' case is not very specific - it is the precedent on which subsequent cases have been set.

I appreciate that there are some subtleties in the specifics of the case regarding the design of the factory, but that doesn't affect the precedent that new-for-old is applicable.

powerful_Rogue wrote: »

In the second case it states:
As such, you cant automatically state that "betterment" isnt relevant to the OPs situation. That would be for a judge to decide if it went that far.

Heres a link regarding replacement clothing and betterment.
http://www.lampkins.co.uk/advice/helmet-and-clothing-claim-following-bike-accident/

Good link, and you're right, it would be for a judge to decide. Personally I think there's a good chance they'd find in OPs favour on the argument that the clothing worn was specifically picked for the style and fit, and that if that specific item is still available new then that's what it should be replace with. If it's not available new, it's unreasonable for them to be trailing round charity shops to find something similar. As I said, if B&Q think it's easy to find a match, they could do so.

Probably depends on the judge as to how much they'd accept womens fashion whims!

ThumbRemote

unholyangel wrote: »

Did you even read/research that article before linking it?

Yes, and the case described is a well-established precedent.

unholyangel wrote: »

And with regards to your second link:

Also to note that there is a second hand market readily available. Perhaps not for those exact items but for comparable items there are.

The rules are different also for items with a indefinite lifespan (like buildings if properly maintained) and a definite lifespan.

Using your logic if I was crashed into, my car written off and I couldnt source my car second hand, i'd be entitled to the cost of a new one. That is not the case, i'd be expected to go for a comparable car and be awarded the value of my destroyed) car.

If you drove a very specific type of car that had no second hand market, then the insurers paying out would be unable to value yours. As such you potentially could get the full replacement cost, that's certainly what you should be pushing for.

My initial point was simply that telling OP that they can't have betterment may not be correct - the descriptions on here ignored the actual legal situation.

Now it may be that generic clothes are considered an appropriate replacement for specific clothes - but giving a reason is better than the discussion repeatedly suggesting that betterment can't/doesn't happen.

unholyangel

ThumbRemote wrote: »

Yes, and the case described is a well-established precedent.



If you drove a very specific type of car that had no second hand market, then the insurers paying out would be unable to value yours. As such you potentially could get the full replacement cost, that's certainly what you should be pushing for.

My initial point was simply that telling OP that they can't have betterment may not be correct - the descriptions on here ignored the actual legal situation.

Now it may be that generic clothes are considered an appropriate replacement for specific clothes - but giving a reason is better than the discussion repeatedly suggesting that betterment can't/doesn't happen.

That is only where the goods are unique and irreplaceable.

Uctkos v Mazzetta - unusual type of boat was destroyed. Reconstructing it would have been expensive. However there were boats of similar design and performance available second hand therefore damages awarded were on the basis of the cost of another boat that would be comparable (including condition).

And yes its sometimes helpful to point out that the same is not true in all circumstances. But what you're saying isn't applicable to the OP. Its only applicable where there is no second hand market for comparable goods.

However its not the decision of the courts thats important, its on what basis that judgement was found thats important. You can have 2 cases with almost identical circumstances and they can be given opposite decisions. Devils in the details.

societys_child

sainty43 wrote: »

A pot of gloss paint fell from a shelf in B & Q and spilled all over my Girlfriends clothes, through no fault of our own. Badly stacked!

OK. But then you say:

sainty43 wrote: »

. . . as 2 of the tins she caught hit her in the face and chin, plus the one that fell hit her foot. She has a nice bruise developing on her foot.

You obviously don't mean she "caught" as in, stopped them falling, because they wouldn't have hit her in the face.

So you're saying, she "caught" or knocked/ dislodged/ brushed against them whilst picking a tin from the shelves (at head hight or above)? hummm . . .

Think I'd have taken the £100 and been outta there.