Dry Cleaners/Cobblers lost 1 boot

unholyangel

naedanger wrote: »

Yes it says "current value" however it then goes on to say how to determine the current value and what it says is much closer to what I have said than the second hand value. (It would have been very easy to say the "current value" is the value the item would obtain on the second hand market but it did not say that - it said something quite different.)


I completely agree the damages should be to compensate the injured party rather than punish the party in breach. But what you are ignoring is that buyers pay a premium for a new item (i.e. having an item that only ever belonged to them). If you simply pay the second hand value then the injured party is losing out financially - they paid handsomely for the new item premium and are losing what that premium provided if you simply give them a second hand item.

Using the hypothetical example quoted earlier - boots value new = £550, value second hand but in near mint condition = £100. A buyer is willing to pay a large premium (here £450) for the item having never been owned by another party. However if they were told the item would be replaced a few days later with the near new item (value £100) do you still think they would still pay £550 for the new item when they would only have the new item for a few days (or would they just pay the £100 for the near new item)?


It is inconsistent. If the wording had meant second hand value then that is what it would have said (in my view).


What is the case in other scenarios is irrelevant here.

If goods were £300 new and a like for like replacement can be purchased for £100 - you have had £200 use out of them.

http://www.bitsoflaw.org/tort/negligence/study-note/degree/remedies-damages-chattels

Destruction of property

The general rule is that where the claimant has been permanently deprived of personal property he is entitled to the full market value of the property at the time the tort was committed. Effectively, a claimant is awarded damages amounting to the sum required to buy a replacement at the date of destruction.

And also note one of the cases cited there where quite a few parallels could be drawn between that case and OP's:

UCTKOS V MAZZETTA [1956] 1 LLOYD'S REP 209
FACTS:
The plaintiff's boat was an unusual design and was destroyed by the defendant's negligence. The cost of constructing the boat required very large expenditure. However, boats of comparatively similar design, construction and performance were available at a lower price.

ISSUE:
How should damages be calculated?

HELD:
As the cost of a replacement chattel was in excess of the value of the property destroyed, the plaintiff was only entitled to recover the value of a reasonable substitute.

ETA: As for the second hand market rule (if one exists), try Harbutts Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970]

naedanger

unholyangel wrote: »

If goods were £300 new and a like for like replacement can be purchased for £100 - you have had £200 use out of them.

http://www.bitsoflaw.org/tort/negligence/study-note/degree/remedies-damages-chattels

And also note one of the cases cited there where quite a few parallels could be drawn between that case and OP's:


ETA: As for the second hand market rule (if one exists), try Harbutts Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970]

Do you ever buy clothes brand new?
Do you think you are paying a premium for them being brand new?
Would you be happy if what you bought brand new was swapped a month later for an item worn by someone else over the previous month?

The purpose of these questions is to help enlighten you to the fact that many people are willing to pay a premium for brand new items, especially of clothing. And that they are not just paying that premium for the first day of ownership (after which the second hand value will drop considerably).

You previously quoted the position if dry cleaners damage your clothing. That situation seems much closer to the position with a cobbler losing a shoe than the other examples you have moved onto.

unholyangel

naedanger wrote: »

Do you ever buy clothes brand new?
Do you think you are paying a premium for them being brand new?
Would you be happy if what you bought brand new was swapped a month later for an item worn by someone else over the previous month?

The purpose of these questions is to help enlighten you to the fact that many people are willing to pay a premium for brand new items, especially of clothing. And that they are not just paying that premium for the first day of ownership (after which the second hand value will drop considerably).

You previously quoted the position if dry cleaners damage your clothing. That situation seems much closer to the position with a cobbler losing a shoe than the other examples you have moved onto.

Many people are willing to pay a premium for brand new cars too. Doesn't change the fact the law would only entitle you to its second hand market value if someone destroyed it through negligence though.

You're also presuming the law would consider a suitable replacement to be the exact same pair of boots when its merely a reasonable substitute.

The basic way to put it is that the law looks at what you have lost. If you buy something thats £1000 new, use it for a year and its now only worth £700, you have not lost a £1000 brand new item, you have lost a £700 used item. This is why - if there is a second hand market available for goods of that type - the loss is the market value and not the cost of a brand new replacement.

naedanger

unholyangel wrote: »

You're also presuming the law would consider a suitable replacement to be the exact same pair of boots when its merely a reasonable substitute.

I am not presuming the text in bold.

The basic way to put it is that the law looks at what you have lost. If you buy something thats £1000 new, use it for a year and its now only worth £700, you have not lost a £1000 brand new item, you have lost a £700 used item. This is why - if there is a second hand market available for goods of that type - the loss is the market value and not the cost of a brand new replacement.

I am far from convinced what you are stating as fact is true, other than the bit in bold, which I have never disputed.

unholyangel

naedanger wrote: »

I am not presuming the text in bold.


I am far from convinced what you are stating as fact is true, other than the bit in bold, which I have never disputed.

Didn't you say you had some sort of legal training? How can you not know this?

Did you read the other bits? Like this one:

The same principles as applied to chattels apply to land and buildings damaged or destroyed by the defendant's negligence. However, land and buildings are more likely to be unique and therefore, the courts will often award sums which exceed the value of the property.

In other words, that (being awarded more than the value of the item) doesn't normally apply to chattels. They can't go and purchase a comparable building to replace it, they need to build one - and often the build costs outweigh the value of the building that had been destroyed.

I don't necessarily think its fair but well, I didn't decide the rules.

naedanger

unholyangel wrote: »

Didn't you say you had some sort of legal training? How can you not know this?

No I have never said I had legal training. I may have said I have worked on some (very) large contracts in the past, but I would have made clear that was not as a lawyer. There were (many) lawyers (both in-house and external) to help ensure what we were aiming to achieve (e.g. commercially) was drafted to be legally effective.

Did you read the other bits? Like this one:


In other words, that (being awarded more than the value of the item) doesn't normally apply to chattels. They can't go and purchase a comparable building to replace it, they need to build one - and often the build costs outweigh the value of the building that had been destroyed.

As I said I am not convinced what you have said is correct.

Reading bits does not really help other than to show general principles don't always apply, and you need to consider the detail.

The fact that the wording regarding the redress due in respect of dry cleaner damage is not just that the second hand value will be paid, along with the fact that most people will not replace damaged clothes originally bought new with second hand items makes me suspect the law recognises that to only offer the second hand value will lead to a financial loss for most people.

unholyangel

naedanger wrote: »

No I have never said I had legal training. I may have said I have worked on some (very) large contracts in the past, but I would have made clear that was not as a lawyer. There were (many) lawyers (both in-house and external) to help ensure what we were aiming to achieve (e.g. commercially) was drafted to be legally effective.



As I said I am not convinced what you have said is correct.

Reading bits does not really help other than to show general principles don't always apply, and you need to consider the detail.

The fact that the wording regarding the redress due in respect of dry cleaner damage is not just that the second hand value will be paid, along with the fact that most people will not replace damaged clothes originally bought new with second hand items makes me suspect the law recognises that to only offer the second hand value will lead to a financial loss for most people.

But thats my point. Damages are not awarded based on what you do once financially compensated, its awarded based on the value of the item you lost. To put you into as near as possible position financially that you would have been in had the contract been performed correctly. And had the service been performed correctly, OP would have a pair of used x month/year old boots that dont have the original heels. So it is for their value that she must be compensated. An order for specific performance isn't available here due to the nature of the claim (loss/destruction of property rather than damage/failure to perform).

Whether you buy a new pair or buy second hand that is your choice. It is only where you do not have a choice that the courts will usually award more than the market value.

In other circumstances there are also other types of damages which can be claimed, like reliance loss or psychiatric injury. But I very much doubt those could be applied to footwear - and thats from a woman that loves shoes.

naedanger

unholyangel wrote: »

But thats my point. Damages are not awarded based on what you do once financially compensated, its awarded based on the value of the item you lost. To put you into as near as possible position financially that you would have been in had the contract been performed correctly. And had the service been performed correctly, OP would have a pair of used x month/year old boots that dont have the original heels. So it is for their value that she must be compensated. An order for specific performance isn't available here due to the nature of the claim (loss/destruction of property rather than damage/failure to perform).

Whether you buy a new pair or buy second hand that is your choice. It is only where you do not have a choice that the courts will usually award more than the market value.

In other circumstances there are also other types of damages which can be claimed, like reliance loss or psychiatric injury. But I very much doubt those could be applied to footwear - and thats from a woman that loves shoes.

I understand what you are saying. And I agree that the principle should be to put the person into as near as possible position financially that they would have been in had the contract been performed correctly.

What I am saying is I am not convinced by your conclusion that in the op's case they will only be legally entitled to the second hand value of the item, for the reasons I gave previously.

firefox1956

Well I just hope the OP never comes back & reads this thread.
Just about confused everybody now you have..................

emwenn

Hi All,

Thanks for all the feed back

Apologies for the delay, my username and password weren't working and it has taken a while to resolve the issue as it was saying my email address was not recognised. I've just set up a new account.

In response to the second hand value...Ebay is not a good call for 'second hand value' as a seller could choose to put something up for £700 or £1. In addition I am a size 36 which is rare to find. That is why I have to buy everything new due to my size. So I dont really know where I would start to look for these current costs.

The boots are practically unworn which they can see as they still have 1 boot, The cap just came off the bottom of one of the heels I dont know if that makes a difference. But I feel a victim for something that shouldn't have happened. I have since been told Alexander Wang would have repaired it for free. I just popped in to have them fixed there and then as I assumed that would be the easiest however it lead to a series of unfortunate events.

To answer all the questions:
- yes I have a receipt
- yes I have spoken to Head Office who have taken a week to even start a process in gaining me 'compensation' so basically I am none the wiser
- second hand value in my opinion is ridiculous and unfair because another question is who decides what is suitable in replacement. The design is unusual and doesnt exist, my size is uncommon and the boots are only available in a size 42 from america at $660 plus a heft postage fee - however I dont think that is a fair price for current value as they may never sell on ebay and that prices is set at the discretion of the seller not a professional. Firstly as said above who would be the correct person to determine this value? Secondly the shoes despite when I bought them are practically unworn, inside venues as well so undamaged. Would this come into the consideration for 'current market value'. Shoes owned for a year vs shoes worn for a year are different.
- In response to why did I leave without a receipt, yes this is Notting Hill, There were much more expensive shoes and garments in the shop than my boots. I live around the corner, I had popped in a few times to check on my boots and both were there in the first week. I felt no need to worry about leaving them there. I was told I would be given a call. Only a month later to chase and be told my boot was lost. Plus as I paid on my card I have evidence that I was there, with date and time etc.
- How did I know how much to pay? I paid there and then and was told it wouldn't cost any more for the repair that was needed - he just needed to order a tool that he didn't have on site.
- in terms of the one boot compensation. There are no terms and conditions for the cobblers part of the shop just the dry cleaners and in there it states if an item is lost/damaged only that item will be compensated even if it comes as a set. The terms and conditions apparently apply to both but I can't understand how it would apply to shoes. I understand that you can wear a jacket without the same trouser/waistcoat etc but what do I do with one shoe???

I don't know the laws or customer rights which is why I'm on here. But surely I have been misled to what was due to happen to my boots. I honestly don't see why I should sacrifice any money to replace my items for a mistake that was not mine. I cannot replace these boots. They aren't made anymore. The current value for a new pair by the same designer as it is summer is less in cost anyway but even then I don't actually like any of those boots so either way I am the loser.

It's not really the money, I would rather have my boots back. But as I can't I don't see why I should be penalised for something that wasn't my fault at all.

I should add as well they also have not refunded me for the repair that I've paid for!