I ordered some material for my garden last autumn. This was a large load that had to be unloaded on the property rather than outside. The lorry driver in backing down my drive managed to run into one of the outbuildings and did £4000 worth of damage. My insurance company has paid for the repairs, minus the excess.

When I asked them to pursue the company providing the material to recover the excess as they had been negligent, they came back to me and said the company had denied any liability on the grounds that they had a clause in their T&Cs saying once the vehicle had left the road, any damage done was not their problem.

I have now written to the company providing the material to point out that the relevant T&C actually says if the vehicle leaves the road or hardstanding they have no responsibility for damage, and as the vehicle was still on the drive at the time, that I believed there was no breach of this condition.

They have now replied changing tack completely and said that their solicitor has advised them that they are not liable as the delivery vehicle was sub-contracted by them and the driver not in their employment. And if i have a case, it is against the sub-contractor not them.

I would think that this is wrong as my contract was with them, not the sub-contractor and i had no say in who delivered the material but i am surprised that their solicitor said what he/she allegedly did (though they may have just said that to put me off!)

Does anyone know how the law stands on this?

Thanks

jackie

Hi jackie

Welcome to CAG

The guys will be happy to advise as soon as they are available.

Thread moved.

I ordered some material for my garden last autumn. This was a large load that had to be unloaded on the property rather than outside. The lorry driver in backing down my drive managed to run into one of the outbuildings and did £4000 worth of damage. My insurance company has paid for the repairs, minus the excess. Is this cash or customer account?

 

When I asked them to pursue the company providing the material to recover the excess as they had been negligent, they came back to me and said the company had denied any liability on the grounds that they had a clause in their T&Cs saying once the vehicle had left the road, any damage done was not their problem. Did you sign a contract with the supplier or are the terms and conditions contained within the delivery receipt?

 

I have now written to the company providing the material to point out that the relevant T&C actually says if the vehicle leaves the road or hardstanding they have no responsibility for damage, and as the vehicle was still on the drive at the time, that I believed there was no breach of this condition. Is the drive the Highway or is it a private access road/lane?

 

They have now replied changing tack completely and said that their solicitor has advised them that they are not liable as the delivery vehicle was sub-contracted by them and the driver not in their employment. And if i have a case, it is against the sub-contractor not them. It appears that the contract for sale of goods was formed between you and the merchant (supplier) and therefore the main contractor is legally responsible for the sub-contractor appointed by him (the supplier).

 

I would think that this is wrong as my contract was with them, not the sub-contractor and i had no say in who delivered the material but i am surprised that their solicitor said what he/she allegedly did (though they may have just said that to put me off!)

 

Does anyone know how the law stands on this? As above, did you sign a contract for sale of the goods, having first acquainted yourself with the terms and conditions of that contract?

 

Thanks

jackie

Good evening Jackie

Can you please provide the answers to the above (in red) and any further details that you may think are relevant to this matter.

Kind regards

The Mould

moved toi the insurance forum

Never mind the law for a moment. As a matter of common sense, a person liable for negligence is the person who was negligent.

The obvious culprit is therefore the driver of the lorry, the cause of the damage. Were you rather to make out a case against a person you placed an order with, the need would be to show where and how an act or omission of his was negligent, or where and how he agreed to be liable. His solicitor, presumably, fails to see a case to that effect and on the face of it, nor do I.

Hi and thanks for your reply.

Is this cash or customer account? not sure what you mean by this. The order on the supplier was a one-off paid by cheque and the insurance was paid under my home insurance policy.

Did you sign a contract with the supplier or are T&C the contained within the delivery receipt? The T&Cs are on the back of their invoice and paying the bill is taken to mean that you agree with the T&Cs.

Is the drive the Highway or is it a private access road/lane? the lorry had to come on to my property to dump the stuff and so was on the area of gravel/stone in front of my garage and outbuildings (which is actually a small stable block)

It appears that the contract for sale of goods was formed between you and the merchant (supplier) and therefore the main contractor is legally responsible for the sub-contractor appointed by him (the supplier). well that's what i thought. The T&Cs say that the material will be delivered in the company's own vehicle or one hired for the purpose but i had no knowledge of which it was, and was not told. there is certainly nothing in the T&C to say that if it is the latter, then any liability is theirs.

As above, did you sign a contract for sale of the goods, having first acquainted yourself with the T&C of that contract?

i did have the opportunity to see the T&Cs but like most people, didn't go through them with a fine toothcomb. And i didn't actually sign anything, just paid the bill!

thanks

jackie

What did the insurance company have to say about it?

I am surprised, to say the least, that they cover the cost of this, without an attempt on their own part to have a go at the driver of the lorry, or his employer.

Hi and thanks for your reply.

Is this cash or customer account? not sure what you mean by this. The order on the supplier was a one-off paid by cheque and the insurance was paid under my home insurance policy.

 

Did you sign a contract with the supplier or are T&C the contained within the delivery receipt? The T&Cs are on the back of their invoice and paying the bill is taken to mean that you agree with the T&Cs.

 

Is the drive the Highway or is it a private access road/lane? the lorry had to come on to my property to dump the stuff and so was on the area of gravel/stone in front of my garage and outbuildings (which is actually a small stable block)

 

It appears that the contract for sale of goods was formed between you and the merchant (supplier) and therefore the main contractor is legally responsible for the sub-contractor appointed by him (the supplier). well that's what i thought. The T&Cs say that the material will be delivered in the company's own vehicle or one hired for the purpose but i had no knowledge of which it was, and was not told. there is certainly nothing in the T&C to say that if it is the latter, then any liability is theirs.

 

As above, did you sign a contract for sale of the goods, having first acquainted yourself with the T&C of that contract?

i did have the opportunity to see the T&Cs but like most people, didn't go through them with a fine toothcomb. And i didn't actually sign anything, just paid the bill!

 

thanks

jackie

Good morning Jackie

Thank you for your reply.

Cash or account? = You have no account facilities with the supplier and therefore no contract between you that provides the express terms and conditions of the business relationship. You telephone (or fax or email) your order through to the supplier, make your order and either pay by debit/credit card there and then and your order is delivered at the agreed address and date, on delivery day when the wagon has off-loaded the goods, you sign a delivery document confirming receipt, one copy thereof remains with you the other with the supplier.

Can you give a time-line to the events of your one-off cash order to the supplier (I know you said cheque payment, however, this type of order is known as 'cash account' or 'cash on delivery').

For example, when did you receive the terms and conditions of sale? At the point of delivery or before you sent your said cheque payment?

From your above comments, it appears that the vehicle was on private property at the point of delivery, nonetheless, the supplier is the main contractor and as such, he remains liable for any damage caused by his sub-contractor, but I need to know when you received the terms and conditions.

Kind regards

The Mould

I also think they are responsable, however as you have claimed on your insurance, you only be able to claim for any excess that you may have had to pay.

It is your insurers that may persue it further if they choose to, but your claim will still apply and may affect your next premium.

I paid a deposit on order and then the balance about a week before delivery, which was about a month later I think. The T&Cs were on the invoices so i did have sight of them before paying.

Just as an aside, the stuff they delivered was actually material to put on an outdoor all-weather surface (40mx20m) and is of such bulk that it could never be unloaded in the road as it would take up much too much room and stop the traffic in the process. It would always have to be dumped on private ground. When i spoke to the supplier on the day, they did say that this had never happened before so clearly their T&Cs have never had to be questioned with regard to this type of incident.

jackie

I paid a deposit on order and then the balance about a week before delivery, which was about a month later I think. The T&Cs were on the invoices so i did have sight of them before paying.

 

Just as an aside, the stuff they delivered was actually material to put on an outdoor all-weather surface (40mx20m) and is of such bulk that it could never be unloaded in the road as it would take up much too much room and stop the traffic in the process. It would always have to be dumped on private ground. When i spoke to the supplier on the day, they did say that this had never happened before so clearly their T&Cs have never had to be questioned with regard to this type of incident.

 

jackie

Thank you again Jackie.

Can you scan in and post up the terms and conditions? (if yes, make sure you delete/cover over your personal details)

How much did you have to pay towards the damage done as per your obligation under the insurance contract?

In the circumstances to this matter that you have reported here, I do not believe that the supplier can waive liability, if he was permitted in law to do so, who could be held accountable if the delivery vehicle ran someone over on your property and killed them?

Further, I believe that the supplier owed a duty of care to you, damage has been caused by a third party who acted under an agreement with the supplier, anything done or not done by that said third party remains the responsibility of the supplier.

Kind regards

Kind regards

The Mould

Again, I totally agree with Mr Mould, sorry The.

scan the required letters/agreements/sheets

as a picture file

remove all pers info inc barcodes etc using paint

but leave all figures and dates.

goto one of the many free online pdf converter websites

convert the image to pdf format.

or ir you have PDF as an installed printer drive use that

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB:you can set where it goes in the post by hitting insert inline.

the hit reply button

dx

I see no reason to claim against the supplier of the goods, rather than the sub-contractor, the cause of the damage.

Under the Contracts (Rights of Third Parties) Act 1999 a subcontractor is every bit as responsible to an identified beneficiary of a contract, as he is to the person contracted to.

I also think they are responsable, however as you have claimed on your insurance, you only be able to claim for any excess that you may have had to pay.

It is your insurers that may persue it further if they choose to, but your claim will still apply and may affect your next premium.

What the op can do is do a claim for restitution against whoever the supplier was that arranged the delivery. Although the insurance paid out it will be marked up as a claim. however if you do a claim in a small claims court you can recover what the insurance paid out and return it to them. This does work but would take a while and your premiums would remain unaffected as long as you repay back the money.

good idea, way to go.

If op is going for her excess then mighht as well do that as well.

The op only needs to put this line down at the start of his/her claim :

My claim is for restitution. My wall was damaged because xyz znd so on. Op will be better off if suing is done to both supplier and truck company. If you need to get hold of the insurance details go here : http://www.askmid.com/askmidenquiry.aspx where for a fee of £3.75 they can find out who the insurance company is by putting the registration number of the truck.

I see no reason to claim against the supplier of the goods at all.

If there is a reason to sue the supplier and to take no notice of the negligent person,the one who delivered the goods, it might be that much more helpful to justify the claim, for this is what would have to be done were the case to be tried.

Why should a person who was negligent, as a matter of fact, not be the person to pay for the damage?

Sorry for delay, here are the T&Cs, they are on the back of the invoice and are pretty difficult to read (in v small print!) but if you can get the file into some photo software, they can be enlarged enough to be legible. I think the relevant bit is all under Delivery. If you can't read it, let me know and I'll have another try.

As the driver on the day said that he had been told by his company (as the vendor said on the phone) that they were not liable due to the vehicle being off the road, i wonder if that actually IS one of the 3rd party T&Cs which the vendor just hadn't realised?

jackie

Whatever the illegible terms on the back of an invoice, the effect of Section 13 of the Supply of Goods and Services Act is to add another:

Implied term about care and skill.

 

In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.

(b) inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him;

excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

limiting the seller’s or supplier’s obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;

Right from the start, I would have thought in terms of invoking the Criminal Damage Act 1971:

Destroying or damaging property.

 

(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

You have been much too good about it.

Write to them and make it clear that you will drag them court and have this sorted out.