Damages by builders - can they deny liability through Terms and Conditions

Jamieg85

Hi All - I'll try and keep this as direct as possible and would appreciate some advice.

We've had some builders in over the last couple of weeks to landscape our garden.  It's not a large garden and had too much stuff in it, so we weren't able to fully clear it for the works to take place. I had moved it all to one  Although the builders weren't happy about it, they did move the stuff as a when they needed to.  Unfortunately, during this moving process damages occurred to 3 items.  It's hard to prove damage on 2 items, as they could argue the damage already existed and we have no proof either way.  The final item though (made of glass) was dropped and smashed and is captured on CCTV.  

Now the work is completed, I have paid 2/3s of the final balance and held onto the last bit, along with an email stating we needed to discuss the damages.  Having spoken to the builder he is refusing to pay, referring to Terms and Conditions on his website that mention items left in the garden.  I have not seen his website or these T&Cs before this (I got his number from Trust A Trader), and certainly haven't formally agreed to them.  There are no T&Cs on the quote he sent (although there is a link to his website)  When asking about insurance, he says they won't pay out because of the T&Cs.  He says that I am liable because we left the stuff in the garden and he was doing us a favour moving them and not charging extra.

Do I have a valid claim for him to replace the damage item(s).  Can he legally dodge it with unseen/unsigned T&Cs?  FYI, here's the paragraph of wording (on un-headed paper)

We ask that the Client ensures there is adequate access to the site e.g. that all vehicles, obstructions and other obstacles are removed to avoid damage, that gates, doorways and passageways are clear of obstruction and unlocked, that neighbours are notified where access is required to carry out the work. We also request that all dog mess be cleared from the Site, if the works cannot be carried out the team will leave the site and you may still be charged. Any damages caused to any items that have been left on site by the client is done so at clients own risk and we will not be liable.

Any advice gratefully received.

bris

Bit of a tricky one this. Although consumers can't be held to unfair terms to me that's not an unfair term.

It would be common sense to move fragile items (glass) out of harms way.

There is specific legal information which must be provided by durable means before work commences but that's to do with your cancellation rights. There is nothing to say (that I know of) it's unfair for them to point out general T&C's on their website.  

Doozergirl

Never mind the T&Cs, you didn't give them a choice in the matter and have told us they weren't happy about it.  If there's too much stuff in your garden for them to do the work without moving it, what are they supposed to do?    They've had to move things repeatedly by the sound it and probably not been paid for the effort.  Was moving your stuff in their quote?  

It's about having mutual respect for people.  If their choice was to move it or not be able to work, then the nice guys are going to move it.  The not so nice guys would leave site and charge you for the wasted time.   

I could not force people to do something for me and then try to hold them legally responsible without taking a long hard look in the mirror.   

TELLIT01

The OP obviously hasn't complied with the requirements of the contractor to clear the area, and is asking if contractor is at fault for the damage!?

Belenus

What is the value of the damaged items?

If it isn't very much then accept the loss and pay the landscapers in full.

If it is a lot of money then accept the loss, pay the landscapers in full and remove fragile or valuable items from risk areas next time you have work done.

You cannot reasonably expect landscapers or builders to work in a small space with fragile valuable items in the way.

Section62

Jamieg85 said:

FYI, here's the paragraph of wording (on un-headed paper)

What was this piece of unheaded paper for, and when were you given it?

You post suggests you were never told of this requirement before the work started.  Has the builder given it to you during or after the work?

If the "builders weren't happy about [moving the stuff]" then presumably you had some kind of conversation with them about the access needs/requirements whilst the work was under way?  What exactly was said?


Otherwise I agree with Doozergirl - you wanted work doing, if you weren't going to move the stuff yourself then what were your expectations of how the project was going to proceed?

theoretica

Claim on your own accidental damage insurance? 

macman

It's clear that the contractor was not contractually required to clear the garden, but their options were to refuse to commence the work, or clear it themselves.
Since they chose the latter course of action, don't they then have a duty of care not to damage items which they have voluntarily undertaken to move?.
Having said that, my sympathies are entirely with the contractor...

benson1980

We've just had a contractor round to plaster who wasn't overly happy with a few bits left in the rooms (skimming the ceilings). He didn't ask me to clear it, and to be honest I forgot to double check before we went away and left him to it, how much needed to be removed to give him adequate access before he started the job. I thought he had adequate space.

In your scenario if he hasn't actually specified understanding of the Ts and Cs alongside quote/terms of engagement, and didnt discuss clearance beforehand and there could be a reasonable assumption taking into account nature of the works that they could work around them, I think that's on him at least in part.

I resolved the above by paying our plasterer extra for moving our things out of the way, which I offered to do at point of him raising the concern- more than compensating for his time as its not technically his job, clearly. We both walked away happy and he's done a great job. I'd be inclined therefore to weigh up time implications for them and value of the item and it may be that the value of the item is just written off.

greenface2

what where the items and their value ? does it match what you owe . 

twopenny

When I first saw this I thought the question would be 'how much extra should i pay' or that they were charging for the extra labour and time.
If you were asked to move it and didn't and you didn't inform them before they arrived for the planned job the onus is very much on you.
He only had 2 options. To leave and charge you for his time in which case your landscaping wouldn't have been done or to charge you for the extra work involved. Neither of which he did.
Also why wouldn't you move fragile items first? Anything damageable would be the first to make safe.