Item missing from online order

cazza0104

Hi

I recently ordered £500 of items, to be delivered, according to their estimate comfortably before I went away for the weekend. Half arrived the day I left and I made the assumption the remaining items would arrive while I was away. As expected, I received notification that the delivery was due by Evri while I was away. We live in a very safe rural location and my local Evri driver knows to leave parcels by the back door if I’m not in. Nevertheless, I requested this via the safe place option on the tracking ap. When I returned the next day the box was there but was obviously open with the tape ripped off. On opening the box one item (the most expensive at £110) was missing.  I immediately let the retailer know via their live chat and I completed the necessary form and attached a screenshot of Evri’s tracking showing a photo of the open box on my doorstep as ‘proof of delivery’. My question is: will I be turned down for a refund on this missing item because I specified a safe place for delivery in spite of Evri ‘proving’ the box was delivered open by its own photo? Have I waived my legal rights?

the_lunatic_is_in_my_head

The legislation say risk passes when

https://www.legislation.gov.uk/ukpga/2015/15/section/29

they [the goods] come into the physical possession of—

(a)the consumer, or

(b)a person identified by the consumer to take possession of the goods.

There have been many debates on here over the subject with no real progress on finding an answer to exactly what that means.

My personal view is that it is the retailer's obligation to place the goods in your physical possession and if they opt to use a courier that allows you to specific a safe place that is still their risk. If they didn't want to take that risk they'd have to alter their agreement with the delivery agent to exclude it (or use another delivery agent that doesn't do it or transport the goods themselves without using a third party). 

Ultimately all issues would be decided by a court if you had to seek your loses via small claims and no agreement could be made before a hearing, I don't think anyone here can say for certain which way the decision would land. 

If they won't help you can point out the legislation, then send a letter before action, then decide whether you wish to risk small claims. If they are a big company then they likely won't want to spend money defending a claim for a relatively small amount. 

Just to add if the photo shows the box was open at the time of delivery that would suggest the item either fell out or was pinched before delivery to the safe place rather than after, which supports your position and if they refused to help would hopefully help in a decision going your way in small claims. 

cazza0104

Thanks - very useful!

screech_78

You’re going to be relying on the photo showing the box being open. I think that stands you in good stead.

We had a case that went to small claims where the customer had chosen a safe place for delivery (specifically for that delivery with DPD). The entire box was apparently missing when they went to collect it. We refused a refund or replacement and the they went down the small claims route. We won the case as the customer had chosen to have their item delivered there. 

the_lunatic_is_in_my_head

screech_78 said:

We won the case as the customer had chosen to have their item delivered there. 

It's a shame you don't have the particulars of these cases, it would be very interesting to know whether the buyer put forward an argument that risk hadn't passed and the court viewed otherwise or whether the customer simply wasn't able to put over a coherent enough position to demonstrate the legislation correctly. 

prettyandfluffy

I would recommend you tell the retailer (because your contract is with them, they have a contract with the courier) that you will involve the Police unless this is resolved to your satisfaction.  I know that in reality the Police are unlikely to want to get involved but when I had a similar issue with DPD that's what I did and the missing items were replaced.  I don't know who paid for it.

cazza0104

Thanks for your comments everyone!

screech_78

the_lunatic_is_in_my_head said:

screech_78 said:

We won the case as the customer had chosen to have their item delivered there. 

It's a shame you don't have the particulars of these cases, it would be very interesting to know whether the buyer put forward an argument that risk hadn't passed and the court viewed otherwise or whether the customer simply wasn't able to put over a coherent enough position to demonstrate the legislation correctly. 

We have another meeting with the team on Monday. I’ll ask about this one. They definitely didn’t state anything about passing of risk when they were detailing the claim to us, but not to say it wasn’t mentioned. Will make a note to check it. 

the_lunatic_is_in_my_head

screech_78 said:

the_lunatic_is_in_my_head said:

screech_78 said:

We won the case as the customer had chosen to have their item delivered there. 

It's a shame you don't have the particulars of these cases, it would be very interesting to know whether the buyer put forward an argument that risk hadn't passed and the court viewed otherwise or whether the customer simply wasn't able to put over a coherent enough position to demonstrate the legislation correctly. 

We have another meeting with the team on Monday. I’ll ask about this one. They definitely didn’t state anything about passing of risk when they were detailing the claim to us, but not to say it wasn’t mentioned. Will make a note to check it. 

Thanks, would be interesting to know  

screech_78

the_lunatic_is_in_my_head said:

screech_78 said:

the_lunatic_is_in_my_head said:

screech_78 said:

We won the case as the customer had chosen to have their item delivered there. 

It's a shame you don't have the particulars of these cases, it would be very interesting to know whether the buyer put forward an argument that risk hadn't passed and the court viewed otherwise or whether the customer simply wasn't able to put over a coherent enough position to demonstrate the legislation correctly. 

We have another meeting with the team on Monday. I’ll ask about this one. They definitely didn’t state anything about passing of risk when they were detailing the claim to us, but not to say it wasn’t mentioned. Will make a note to check it. 

Thanks, would be interesting to know  

Apologies for the delay in updating on this one. Previous meeting was cancelled. We had one this morning and I asked about this one again. 

The words “passing of risk” were never mentioned, however the customer had specifically chosen the safe place after a text from DPD and they had went through a link and typed their safe place for this delivery. We also had evidence from DPD that they had chosen this safe place for numerous deliveries, including from other retailers. 

The judge made the decision based on the fact that customer deemed it a safe place to leave their order and so the retailer shouldn’t be held liable. Also worth mentioning though that the safe place was at the side of the house and there is a gate you need to pass through before you would see the parcel. The judge made a comment that she may have viewed this differently if it had been left in public view. There was also however, some notes that we actually believed this to be a fraudulent claim and this was also backed by some further evidence from DPD. So more than meets the eye on this one and not actually that straightforward. 

Hope that helps.