QVC refusing refund of £399.00

Manxman_in_exile

I'm interested in the law here as well, and you raise a good point.

I don't know what limits the liability of the Post Office/RM, but given the history I wouldn't be surprised if it's by statute.

What really annoys me is that you can enter into a contract with a courier - or whatever - and then they can say to you "Oh - by the way, you will need to take out insurance at an additional cost if you want your item to be covered against us damaging it or losing it because we haven't exercised reasonable skill or taken reasonable care of it whilst it's in our possession".

Why should the customer have to insure against the service provider breaching the contract?  That should be the provider's concern and at their risk - not the customer's.

And I'm not sure the CRA permits service providers to do that anyway.  (Although I'm more than happy for it to be demonstrated that I'm wholly wrong on this generally)

user1977

I suspect the main difference between couriers and many other areas of business is that they don't really know what risk they are taking on unless you declare the type/value of the contents - does your parcel contain a Ming vase, or are you just sending your dirty laundry home to your mum?

Manxman_in_exile

user1977 said:

I suspect the main difference between couriers and many other areas of business is that they don't really know what risk they are taking on unless you declare the type/value of the contents - does your parcel contain a Ming vase, or are you just sending your dirty laundry home to your mum?

Well if the courier has asked the customer to declare the value of the parcel contents and the customer has lied, then that is at the customer's risk - they can't expect greater compensation than they have declared.

But where the courier hasn't asked or where the customer has truthfully declared the value, why should the customer have to pay to insure against the courier's carelessness, incompetence, negligence or the outright dishonesty of their staff?

Alderbank

Manxman_in_exile said:

I'm interested in the law here as well, and you raise a good point.

I don't know what limits the liability of the Post Office/RM, but given the history I wouldn't be surprised if it's by statute.

What really annoys me is that you can enter into a contract with a courier - or whatever - and then they can say to you "Oh - by the way, you will need to take out insurance at an additional cost if you want your item to be covered against us damaging it or losing it because we haven't exercised reasonable skill or taken reasonable care of it whilst it's in our possession".

Why should the customer have to insure against the service provider breaching the contract?  That should be the provider's concern and at their risk - not the customer's.

And I'm not sure the CRA permits service providers to do that anyway.  (Although I'm more than happy for it to be demonstrated that I'm wholly wrong on this generally)

This comes under the English common law head of Bailment, which is law dealing with goods in the possession of someone who is not their owner.
In 1601 (I think) the precedent was set that the carrier had absolute responsibility. He either delivered the goods he was paid to do or refunded their value. Simples. End of. The judges of the time wisely (in my opinion) said if this was not the case that once they had been paid, carriers could just dump the goods round the corner or even sell them then shrug their shoulders and say 'Tough'.
100 years later this precedent was overturned after a barrel of expensive brandy fell apart in the road while in transit. The carrier complained that it was not his fault that the barrel was rotten and besides he had been paid 1 groat or something and could not afford to repay the huge sum of £100 for the brandy.
This led to a change of precedent - the carrier had to be 'negligent', meaning the owner of the goods had to package the goods reasonably well and the carrier merely had to show reasonable care and skill.
Not much has changed since about 1700. Perhaps it's time for a civil law statute?

According to the Consumers Association in Which?, CRA does permit the consumer to claim against the carrier for breaching the contract by losing the goods - it allows them to claim back the fee!

Manxman_in_exile

Alderbank said:

Manxman_in_exile said:

I'm interested in the law here as well, and you raise a good point.

I don't know what limits the liability of the Post Office/RM, but given the history I wouldn't be surprised if it's by statute.

What really annoys me is that you can enter into a contract with a courier - or whatever - and then they can say to you "Oh - by the way, you will need to take out insurance at an additional cost if you want your item to be covered against us damaging it or losing it because we haven't exercised reasonable skill or taken reasonable care of it whilst it's in our possession".

Why should the customer have to insure against the service provider breaching the contract?  That should be the provider's concern and at their risk - not the customer's.

And I'm not sure the CRA permits service providers to do that anyway.  (Although I'm more than happy for it to be demonstrated that I'm wholly wrong on this generally)

... This led to a change of precedent - the carrier had to be 'negligent', meaning the owner of the goods had to package the goods reasonably well and the carrier merely had to show reasonable care and skill.
Not much has changed since about 1700. Perhaps it's time for a civil law statute?...

As I've already said, I don't see that the OP has anything to lose by putting Hermes/Evri to the test on this.  Assuming the OP can demonstrate that they packaged the item appropriately and that they followed all Hermes/Evri's requirements I would argue that the loss of the item is prima facie evidence of the courier's negligence and puts the onus back onto them to demonstrate that they have not been negligent.  We've all seen photographic evidence of how Hermes handle packages at their depots and it's quite evident that as a courier they do not take reasonable care of the goods entrusted to them.

Alderbank said:

Manxman_in_exile said:

I'm interested in the law here as well, and you raise a good point.

I don't know what limits the liability of the Post Office/RM, but given the history I wouldn't be surprised if it's by statute.

What really annoys me is that you can enter into a contract with a courier - or whatever - and then they can say to you "Oh - by the way, you will need to take out insurance at an additional cost if you want your item to be covered against us damaging it or losing it because we haven't exercised reasonable skill or taken reasonable care of it whilst it's in our possession".

Why should the customer have to insure against the service provider breaching the contract?  That should be the provider's concern and at their risk - not the customer's.

And I'm not sure the CRA permits service providers to do that anyway.  (Although I'm more than happy for it to be demonstrated that I'm wholly wrong on this generally)

... According to the Consumers Association in Which?, CRA does permit the consumer to claim against the carrier for breaching the contract by losing the goods - it allows them to claim back the fee!

I've been a subscriber to to Which? for nearly 30 years.  When they deal with something I know a little about, I realise they are not necessarily the font of all knowledge.

If I were the OP I would argue that s54(7)(a) still allows me to sue the courier for damages in respect of the loss of the item caused by their breach of the reasonable skill and care implied term.  (I'm not 100% convinced it's a good argument - so what?)

But whether the OP bases their claim on breach of the implied contractual term and/or on the courier's negligent loss of the item is neither here nor there.  The OP's choice is between either (i) writing off £400 (or whatever their loss is) or (ii) taking action and (a) risking the cost of issuing a claim and possibly losing that claim fee, or (b) getting some compansation back for the loss.

I know what I'd do.  If I issue (or threaten) a claim I might just possibly get my money back, but if I do nothing I'll get nothing back.

the_lunatic_is_in_my_head

Alderbank said:

Manxman_in_exile said:

I'm interested in the law here as well, and you raise a good point.

I don't know what limits the liability of the Post Office/RM, but given the history I wouldn't be surprised if it's by statute.

What really annoys me is that you can enter into a contract with a courier - or whatever - and then they can say to you "Oh - by the way, you will need to take out insurance at an additional cost if you want your item to be covered against us damaging it or losing it because we haven't exercised reasonable skill or taken reasonable care of it whilst it's in our possession".

Why should the customer have to insure against the service provider breaching the contract?  That should be the provider's concern and at their risk - not the customer's.

And I'm not sure the CRA permits service providers to do that anyway.  (Although I'm more than happy for it to be demonstrated that I'm wholly wrong on this generally)

This led to a change of precedent - the carrier had to be 'negligent', meaning the owner of the goods had to package the goods reasonably well and the carrier merely had to show reasonable care and skill.

I guess it begs the question how do you lose a well packaged, clearly addressed parcel if you’ve been taking reasonable care of it?

Perhsps OP can confirm whether they were returning under QVCs 60 day return policy or had cancelled their contract within 14 days of receipt? 

Manxman_in_exile

the_lunatic_is_in_my_head said:

Alderbank said:

Manxman_in_exile said:

I'm interested in the law here as well, and you raise a good point.

I don't know what limits the liability of the Post Office/RM, but given the history I wouldn't be surprised if it's by statute.

What really annoys me is that you can enter into a contract with a courier - or whatever - and then they can say to you "Oh - by the way, you will need to take out insurance at an additional cost if you want your item to be covered against us damaging it or losing it because we haven't exercised reasonable skill or taken reasonable care of it whilst it's in our possession".

Why should the customer have to insure against the service provider breaching the contract?  That should be the provider's concern and at their risk - not the customer's.

And I'm not sure the CRA permits service providers to do that anyway.  (Although I'm more than happy for it to be demonstrated that I'm wholly wrong on this generally)

This led to a change of precedent - the carrier had to be 'negligent', meaning the owner of the goods had to package the goods reasonably well and the carrier merely had to show reasonable care and skill.

I guess it begs the question how do you lose a well packaged, clearly addressed parcel if you’ve been taking reasonable care of it?...

My point exactly.  I can't think of a more apt example of res ipsa locquitur in operation...

The burden of proof shifts to Hermes to show they had taken proper care of it - which I doubt they could.

Money_Grabber13579

the_lunatic_is_in_my_head said:

Alderbank said:

Manxman_in_exile said:

I'm interested in the law here as well, and you raise a good point.

I don't know what limits the liability of the Post Office/RM, but given the history I wouldn't be surprised if it's by statute.

What really annoys me is that you can enter into a contract with a courier - or whatever - and then they can say to you "Oh - by the way, you will need to take out insurance at an additional cost if you want your item to be covered against us damaging it or losing it because we haven't exercised reasonable skill or taken reasonable care of it whilst it's in our possession".

Why should the customer have to insure against the service provider breaching the contract?  That should be the provider's concern and at their risk - not the customer's.

And I'm not sure the CRA permits service providers to do that anyway.  (Although I'm more than happy for it to be demonstrated that I'm wholly wrong on this generally)

This led to a change of precedent - the carrier had to be 'negligent', meaning the owner of the goods had to package the goods reasonably well and the carrier merely had to show reasonable care and skill.

I guess it begs the question how do you lose a well packaged, clearly addressed parcel if you’ve been taking reasonable care of it?

Perhsps OP can confirm whether they were returning under QVCs 60 day return policy or had cancelled their contract within 14 days of receipt? 

It could have been destroyed in a traffic accident which wasn’t the fault of the Hermes driver or something like that, but given it’s Hermes, I suspect it’s much more likely that it’s disappeared through carelessness. An awful lot of parcels that are received at their depots seem to disappear, never to be found again… (maybe still small as a proportion of total parcels, but comments seem to suggest it’s still a large number)

Diamandis

It does say on the hermes/evri site not to use the service for things worth over £250 too.

lisyloo

Manxman_in_exile said:

the_lunatic_is_in_my_head said:

Alderbank said:

Manxman_in_exile said:

I'm interested in the law here as well, and you raise a good point.

I don't know what limits the liability of the Post Office/RM, but given the history I wouldn't be surprised if it's by statute.

What really annoys me is that you can enter into a contract with a courier - or whatever - and then they can say to you "Oh - by the way, you will need to take out insurance at an additional cost if you want your item to be covered against us damaging it or losing it because we haven't exercised reasonable skill or taken reasonable care of it whilst it's in our possession".

Why should the customer have to insure against the service provider breaching the contract?  That should be the provider's concern and at their risk - not the customer's.

And I'm not sure the CRA permits service providers to do that anyway.  (Although I'm more than happy for it to be demonstrated that I'm wholly wrong on this generally)

This led to a change of precedent - the carrier had to be 'negligent', meaning the owner of the goods had to package the goods reasonably well and the carrier merely had to show reasonable care and skill.

I guess it begs the question how do you lose a well packaged, clearly addressed parcel if you’ve been taking reasonable care of it?...

My point exactly.  I can't think of a more apt example of res ipsa locquitur in operation...

The burden of proof shifts to Hermes to show they had taken proper care of it - which I doubt they could.

This does raise a point I’ve been wondering about.

is it possible to “lose” items without negligence.
i believe it is - for example there can be theft (even if someone is taking care and not negligent), accidents etc.
so the question is whose responsibility are those cases where negligence is not involved.

if the service states “only covered for £x” as they do at the post office, or offers insurance then that clarifies the position.

so I am questioning the position of loss = negligence.

having said that if a van caught fire or was in a serious accident I’d expect Hermes to be aware of it. Problem is that customer service is a rarity in the uk.

in practice I agree with LBA as the judge will decide on balance of probabilities and I’d say that isn’t on their side.