EVRI delivered an empty package

the_lunatic_is_in_my_head

Okell said:

I would say that a courier which loses the contents of a parcel that it has been paid to deliver has been, on the face of it, negligent - and that the evidential burden of proof then switches from the claimant onto the courier to prove that the claimant had been at fault.  How would EVRI do that?

I would agree, the question to be asked if why would a courier company accept a shipment that clearly wasn't packaged to a suitable standard to transport? 

@Okell is the other consumer site still using the Third Party legislation for courier claims or did a spanner get thrown in that idea? 

Boohoo

I think you should be lucky that Evri managed to deliver something even though it was just the packaging.

OP do you have a photo of the package before it was sent and one from the recipient when they got it.

It may give an indication of how the club went missing.

Did the recipient not realise the package was very light when they took hold of the item or was it deposited "somewhere safe".

Grumpy_chap

the_lunatic_is_in_my_head said:

I would agree, the question to be asked if why would a courier company accept a shipment that clearly wasn't packaged to a suitable standard to transport? 

How would the courier company (or their agent, which is often a local newsagent) know whether the item is suitably packaged?

Would the courier actually know what the contents of the package are?

If the courier receives a tube wrapped in brown paper, do they know whether the contents are a golf club or a sausage pillow or simply some drawings rolled up?  All would logically fit in a long enough cardboard tube.  All could be accepted by the courier / agent if the ends are simply covered over with brown wrapping paper and taped up.  A sausage pillow would be less likely to puncture the wrapping than a golf club.

If a golf club is found at some point in the courier journey, that will be difficult to retrospectively match back to the correct location.

I suspect the courier terms would have some comment about the need for items to be properly packaged.

We also have the possibility that the golf club was delivered and the item went missing after it left the hands of the courier.  

I think it may have been asked already, but has the courier shared with the OP the photo of the package when it was handed over to the recipient?  Does that show the package as damaged at that time, to an extent that the golf club could have escaped?

the_lunatic_is_in_my_head

Grumpy_chap said:

or their agent, which is often a local newsagent) 

Are you implying the presence of an agent removes the implied terms that services are carried out with due care and skill?

Grumpy_chap said:

Would the courier actually know what the contents of the package are?

Packlink is integrated into eBay, unless OP  listed their golf club as a barbie doll the information is known. In addition the courier booking forms usually have a field to enter the parcel contents, even for those that don't nothing to stop them doing such. 

Grumpy_chap said:

If the courier receives a tube wrapped in brown paper, do they know whether the contents are a golf club or a sausage pillow or simply some drawings rolled up?  All would logically fit in a long enough cardboard tube.  All could be accepted by the courier / agent if the ends are simply covered over with brown wrapping paper and taped up.  A sausage pillow would be less likely to puncture the wrapping than a golf club.

Well if a company that specialises in transporting goods can't look at a tube and decide whether it's going to burst open or not I don't really know what say. 

If brown paper is the problem they have the option to decline parcels wrapped in brown paper. 

This is like the physical possession argument or the courier liability without paying extra for "insurance" argument, the balance between what happens in the real world with businesses hedging their risks by conducting business in a certain way doesn't affect the rights of the consumer. 

Grumpy_chap

the_lunatic_is_in_my_head said:

Are you implying the presence of an agent removes the implied terms that services are carried out with due care and skill?

No.  

the_lunatic_is_in_my_head said:

Grumpy_chap said:

Would the courier actually know what the contents of the package are?

Packlink is integrated into eBay, unless OP  listed their golf club as a barbie doll the information is known. In addition the courier booking forms usually have a field to enter the parcel contents, even for those that don't nothing to stop them doing such. 

Thanks - I was not aware that there is a delivery service so connected with eBay.



The logical extension of the views expressed in this thread is rather taking consumer rights to an extent that is an unfair contract (against the courier):
 - Shipper sends an empty parcel - burden on courier to prove
 - Shipper is negligent and inadequately packs parcel - burden on courier to prove
 - Recipient declares an empty parcel received - burden on courier to prove
I don't think that can be correct, any more than it would be correct to always hold the sender / recipient as liable.

the_lunatic_is_in_my_head

Grumpy_chap said:

 - Shipper sends an empty parcel - burden on courier to prove
 - Shipper is negligent and inadequately packs parcel - burden on courier to prove
 - Recipient declares an empty parcel received - burden on courier to prove
I don't think that can be correct, any more than it would be correct to always hold the sender / recipient as liable.

Buren of proof is balance of probability placed on the person making the claim. 

I don't think you can prove the parcel was or wasn't empty or indeed had a golf club or sausage pillow inside. OP sells a golf club, purchases a label to cover a golf club, posts a parcel that contains a golf club. Unless there is something to suggest otherwise I would assume a court takes these aspects of the claim at face value.

I would expect the claimant to be required to detail how the item was packaged as part of their claim and again that to be taken at face value unless there is something to suggest otherwise.

Third one is is difficult, delivery photo should offer some clues but again if the buyer has opened a claim for non-receipt/SNAD stating the parcel is empty is this the facts of the case?

You could apply your argument to 99% of topics on here, who can prove the TV screen was smashed and they didn't drop it, who can prove they weren't sent a green widget and didn't swap it out for a blue one, who can prove they ordered 5 things and only got 4. 

I assume these kinds of questions are exactly why we have judges, to listen to two parties and use their knowledge and experience to form an option on who is telling the truth or has the most likely story. 

Grumpy_chap

the_lunatic_is_in_my_head said:

Buren of proof is balance of probability placed on the person making the claim. 

I think in this case, it is the OP (sender) that is making the claim, so the burden of proof would fall to the OP...
The OP may, in turn, require the recipient to provide some evidence of an empty parcel received - perhaps the delivery photo if not shared by Evri to the OP.

I am also perplexed by the comments about the courier being liable irrespective of the insurance being taken or not.
Why have the insurance option if it means / adds nothing?

I am not familiar with EVRI but Royal Mail have standard cover for damage / loss of 6 stamps if value is not evidences, or up to £20 if value can be evidenced.  Then there are various uplifts to the level of compensation if an additional value of cover is evidenced.
That seems reasonable to me - otherwise every lost package would be claimed to contain a £50k Rolex.

The suggestion of the courier being liable regardless of insurance seems to link back to the hotel cancellable / no cancellation discussion.   The sender has a choice to buy the insurance or accept the risk.

A_Geordie

Grumpy_chap said:

I think in this case, it is the OP (sender) that is making the claim, so the burden of proof would fall to the OP...

The OP may, in turn, require the recipient to provide some evidence of an empty parcel received - perhaps the delivery photo if not shared by Evri to the OP.

This is true, the threshold for the burden of proof will be different for each type of legal claim. If the OP were to claim under the Torts (Interference with Goods Act) 1977, the burden of proof is on the OP to show (1) they have an interest in the goods such as ownership, possession etc. (2) that Evri or someone acting on their behalf had interfered with the goods and (3) as a result has caused harm or loss to the OP. It is then up to Evri to provide evidence to the contrary. 

I am also perplexed by the comments about the courier being liable irrespective of the insurance being taken or not.

Can you explain why you are so perplexed by these comments? Perhaps my next couple of responses might help explain why. 

Why have the insurance option if it means / adds nothing?

Convenience, perhaps? Starting legal proceedings is obviously costlier than insurance, takes time and can be stressful. One might take the insurance option to avoid all of that.

I am not familiar with EVRI but Royal Mail have standard cover for damage / loss of 6 stamps if value is not evidences, or up to £20 if value can be evidenced.  Then there are various uplifts to the level of compensation if an additional value of cover is evidenced.
That seems reasonable to me - otherwise every lost package would be claimed to contain a £50k Rolex.

The suggestion of the courier being liable regardless of insurance seems to link back to the hotel cancellable / no cancellation discussion.   The sender has a choice to buy the insurance or accept the risk.

In the UK and several other countries round the world, there are two main types of civil action: contract and tort. The difference between the two is that a tort is a civil wrong which does not require you to have a contract with someone to be able to bring a legal action. It is possible to have a concurrent claim in contract and in tort or just one type of claim, depending on the facts of the dispute. However, you cannot claim double recovery - some claims are more beneficial and advantageous than others.

For example, you may have a claim against another for breach of contract whilst at the same time have a claim for misrepresentation which is a tort. I would most likely consider bringing a misrepresentation claim over a breach of contract because the remedy for misrepresentation is usually for more beneficial than a breach of contract claim. 

The reason why the OP could have a claim directly against Evri despite having no contract, is that TIGA 1977 is a statutory tort that allows a remedy aginst a third party who interferes with the goods belonging to another, due to negligence, damage or disposal. The remedy in most cases related to goods will be the market value.

To summarise, you have a contract with Party A, doesn't mean that your only remedy is against Party A. Liabilities and remedies should be explored against all parties involved as you typically find there is more than one legal claim that could be considered and it is a question of choosing the right one that benefits the injured party the most.

the_lunatic_is_in_my_head

Grumpy_chap said:

I am also perplexed by the comments about the courier being liable irrespective of the insurance being taken or not.

I thought you'd been here long enough to read this  

https://forums.moneysavingexpert.com/discussion/6442661/couriers-lost-parcels-and-unfair-terms

savergrant

Grumpy_chap said:

Thanks - I was not aware that there is a delivery service so connected with eBay.

For some time ebay has given sellers the opportunity to click direct to a carrier and pre-filled the address and contents. More recently ebay has mandated most parcels are sold through a system where ebay purchases the postage and bills the buyer or the seller according to the listing preference. In these cases ebay forms the contract with the courier and the seller's responsibility for loss or damage is covered by ebay. However that would only seem to apply if the courier accepts that the loss or damage occurred during transit. In this case the courier do not seem to be admitting that the package was not delivered as received.
In my view op has a receipt for a parcel weighing the weight of a golf club so since the recipient didn't receive anything weighing that amount ebay should release the funds and then claim the value of the item. Additionally if the recipient reports that the parcel showed signs of tampering that should absolve the sender.