Magnet delivery damage

CurlyWurly13

I don't know if it is the same for others but I work for a courier company and we delivery as a third party for retailers. If there are any customer complaints, they go through the retailer who then inform us. The customers claim from the retailer who then claim from us.

ScorpiondeRooftrouser

unholyangel wrote: »

You can claim off either. Although with magnet, you'd be claiming under contract while a claim against the delivery company would be based on tort.

Under contract, they have a duty to carry out their obligations with reasonable care & skill. The fact they chose to outsource some of their obligations to a third party is irrelevant - they remain liable for the failures of the third party.

Under tort, you have a duty of care to your "neighbour", with neighbour being defined as anyone you could reasonably foresee as being affected by your actions. If you are negligent in your duty of care and that negligence causes them a loss, then you will be liable.

If magnet refuse, send them a LBA and remind them they cannot disclaim liability for their subcontractors.

Current CMA unfair term guidance says this on the matter:

Ok, so - I order something from an ebay business seller and pay £1.99 for postage. He sends it by Royal Mail. The postman manages to drive his van into my wall while delivering. Can I then sue the ebay seller?

unholyangel

ScorpiondeRooftrouser wrote: »

Ok, so - I order something from an ebay business seller and pay £1.99 for postage. He sends it by Royal Mail. The postman manages to drive his van into my wall while delivering. Can I then sue the ebay seller?

Yes. There are no special rules for retailers selling on ebay. Just like if royal mail loses your parcel, its the seller who is liable - even if they only sell on ebay.

They might (depending on their contract with royal mail) be able to claim those losses back from royal mail, but they can't disclaim their liability to the customer purely because they choose to subcontract the delivery.

ScorpiondeRooftrouser

unholyangel wrote: »

Yes. There are no special rules for retailers selling on ebay. Just like if royal mail loses your parcel, its the seller who is liable - even if they only sell on ebay.

They might (depending on their contract with royal mail) be able to claim those losses back from royal mail, but they can't disclaim their liability to the customer purely because they choose to subcontract the delivery.

The seller being liable for loss of the item is another thing altogether.

If anyone who sends me something in the post is liable for any damage the postman does to my property, then I don't think that's something a lot of people would be aware of.

What if he is bringing a number of parcels from different suppliers, plus a final demand from the Tax Office? Who can I sue then?

unholyangel

ScorpiondeRooftrouser wrote: »

The seller being liable for loss of the item is another thing altogether.

If anyone who sends me something in the post is liable for any damage the postman does to my property, then I don't think that's something a lot of people would be aware of.

What if he is bringing a number of parcels from different suppliers, plus a final demand from the Tax Office? Who can I sue then?

It may seem like another thing altogether but its not. The seller is liable for performance of the contract. When a company uses a third party to perform their obligations, its as good as the company undertaking those duties themselves since only the benefit of a contract can be transferred, not the obligations.

The same way if a product had a fault which ended up causing damage to your property, you can still sue the seller because despite the fault not being because of them, they were the ones who entered a contract with you.

ScorpiondeRooftrouser

unholyangel wrote: »

It may seem like another thing altogether but its not. The seller is liable for performance of the contract. When a company uses a third party to perform their obligations, its as good as the company undertaking those duties themselves since only the benefit of a contract can be transferred, not the obligations.

The same way if a product had a fault which ended up causing damage to your property, you can still sue the seller because despite the fault not being because of them, they were the ones who entered a contract with you.

No, the loss of the item IS another thing altogether, because their contract was to get the item to you. If the subcontractor fails to carry out the contract, then that means the original contractor has failed to carry out the contract, and still needs to do so.

That doesn't in any way naturally extend to the fact that they can be sued for the postman damaging your property.

I am not necessarily saying you are wrong. I am saying that very few people who send purchases through Royal Mail, or by Yodel, would expect to be sued should the courier or the postman damage the property of the person they were delivering them to. I would like to see some reasons to believe that; the fact that they are liable to get you another item if the other one is lost or damaged is really not the same thing at all. In that case their direct contract has not been fulfilled; they still need to fulfil it. You are saying that the contractor is always responsible for damage arising indirectly from the subcontractor visiting the customer premises; there is nothing in the contract about that.

If you are right this is obviously massively important to people. Sending someone a 1.99 ebay item could result in you being sued for thousands because the postman ran into somebody's car. I have never heard of such a case; have you?

unholyangel

ScorpiondeRooftrouser wrote: »

No, the loss of the item IS another thing altogether, because their contract was to get the item to you. If the subcontractor fails to carry out the contract, then that means the original contractor has failed to carry out the contract, and still needs to do so.

That doesn't in any way naturally extend to the fact that they can be sued for the postman damaging your property.

I am not necessarily saying you are wrong. I am saying that very few people who send purchases through Royal Mail, or by Yodel, would expect to be sued should the courier or the postman damage the property of the person they were delivering them to. I would like to see some reasons to believe that; the fact that they are liable to get you another item if the other one is lost or damaged is really not the same thing at all. In that case their direct contract has not been fulfilled; they still need to fulfil it. You are saying that the contractor is always responsible for damage arising indirectly from the subcontractor visiting the customer premises; there is nothing in the contract about that.

If you are right this is obviously massively important to people. Sending someone a 1.99 ebay item could result in you being sued for thousands because the postman ran into somebody's car. I have never heard of such a case; have you?

They're supposed to deliver the item using reasonable care & skill - not just deliver the item. So as I said, it is not another thing entirely. Theres a greater duty of care created under contract (even if not subject to consumer rights) than created by tort.

I agree, many sellers may not be aware. Just as many aren't aware that faults that become apparent in first 6 months are assume to be inherent, that they need to accept returns of most items (even if they've been used), that they can't have signs saying "no refunds" or even "no refund unless faulty" etc. Thats the problem with certain traders though (and imo especially with marketplace sellers) who are often only interested in how their actions can benefit them and don't care or know about their obligations.

I'm not saying the seller is always liable for everything the contractor does - only so far as it relates to performance of the contract (because as above, only the benefit of a contract can be transferred, not the obligations).

marliepanda

My granny sent me a birthday card and the postman ploughed through my front window.

Suing granny as we speak.

ScorpiondeRooftrouser

unholyangel wrote: »

They're supposed to deliver the item using reasonable care & skill - not just deliver the item. So as I said, it is not another thing entirely. Theres a greater duty of care created under contract (even if not subject to consumer rights) than created by tort.

I agree, many sellers may not be aware. Just as many aren't aware that faults that become apparent in first 6 months are assume to be inherent, that they need to accept returns of most items (even if they've been used), that they can't have signs saying "no refunds" or even "no refund unless faulty" etc. Thats the problem with certain traders though (and imo especially with marketplace sellers) who are often only interested in how their actions can benefit them and don't care or know about their obligations.

I'm not saying the seller is always liable for everything the contractor does - only so far as it relates to performance of the contract (because as above, only the benefit of a contract can be transferred, not the obligations).

Please just concentrate not on fault with the item delivered, but with damage done by the deliverer. You are just claiming the two things are equivalent when they are not; and I have explained why above. Introducing them all the time just confuses the issue.

Do you have anything to show that damage done by the sub contractor in visiting the client's premises is always the responsibility of the contractor?

Do you have anything to show that a postman is regarded as a sub contractor in these circumstances?

I think the claim that you can sue someone who sends you something in the post if the postman damages your property is massive, and I don't think you can just continue to assert it. You may be right, but your argument so far is not convincing.

ScorpiondeRooftrouser

marliepanda wrote: »

My granny sent me a birthday card and the postman ploughed through my front window.

Suing granny as we speak.

Ah, you can't sue your granny unless you paid her 99p p&p to send the card to you. That's what makes the difference according to unholyangel's argument.

If the postman had a biro you had ordered off ebay, you could sue the seller.

If he had the card from your granny and the biro....he would have had to come to your house anyway, to deliver the card....so it's a legal minefield.