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    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

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    • Housing Association property flooding. https://www.consumeractiongroup.co.uk/topic/438641-housing-association-property-flooding/&do=findComment&comment=5124299
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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
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      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Damage to my property by a Water company


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My local water company did some work outside my property, as a result of this my house became flooded causing extensive damage to the flooring which now has to be replaced as well as my driveway as the flooding came from beneath the ground.

 

The water company has admitted responsibility.

 

The problem I have is as follows:

 

The loss adjsutor has stated we have to make a contribution to the replacement of the floor to reflect wear & tear, the floor was installed 5 years ago. I told him that we did not plan to replace the floor and due to the negligence of the water company we now have to. Do I have to make a contribution? & where do I stand legally.

 

Thanks for any help

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I think the water company should deal with this as if you were claiming on your own Home Insurance. Most Home Insurances settle claims on a new for old basis, less the policy excess. If you claimed off your Home Insurance, they would claim back any payout from the water company and you would also claim back your excess. So the water companies Insurers are being a bit cheeky.

 

To be in the same financial position, the water companies Insurers should deal with the claim on an 'as new' basis, without any deduction for wear and tear. Point out that if they don't, you might then look to your own Home Insurers and also get solicitors involved meaning more costs for the water companies Insurers.

 

In regard to Home Insurance, speak to your Insurers about this, just in case. Ask them to note the enquiry only and not to note as a claim yet.

We could do with some help from you.

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I think the water company should deal with this as if you were claiming on your own Home Insurance. Most Home Insurances settle claims on a new for old basis, less the policy excess. If you claimed off your Home Insurance, they would claim back any payout from the water company and you would also claim back your excess. So the water companies Insurers are being a bit cheeky.

 

To be in the same financial position, the water companies Insurers should deal with the claim on an 'as new' basis, without any deduction for wear and tear. Point out that if they don't, you might then look to your own Home Insurers and also get solicitors involved meaning more costs for the water companies Insurers.

 

In regard to Home Insurance, speak to your Insurers about this, just in case. Ask them to note the enquiry only and not to note as a claim yet.

 

I have informed my insurance company for noting. The water company stated I would suffer no financial pain as a result of this negligent action. The loss adjustor for the water company is stating this, so I think he is trying it on.

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The loss adjustor for the water company is stating this, so I think he is trying it on.

 

That's his job. I do think insurers can confuse the issue when sorting out 3rd party claims. Stripped down to the bare bones, the water company were negligent and you have a claim against them to put right what was damaged. You are not claiming anything on any insurance. The water company's insurer is there to indemnify the water company.

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I have just spoken to the loss adjuster for the water company. Who states I will have to contribute towards the replacement floor as we can not seem to benefit on a new for old, as the floor is five years old. Grateful for any advice is he right/wrong.

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I have just spoken to the loss adjuster for the water company. Who states I will have to contribute towards the replacement floor as we can not seem to benefit on a new for old, as the floor is five years old. Grateful for any advice is he right/wrong.

 

The loss adjuster is talking rubbish. You are the damaged 3rd party is this and need to be put in the same situation, as you were before they flooded your property.

 

If you say the floor is 5 years old, he will say the floor would last say 10 years and offer 50% of the cost. This is nonsense.

 

On this basis, ask him for the water companies Insurance details and say you will claim through your own Home Insurance. This will cost the water companies Insurers more money, than if they dealt with the claim properly, as your Insurers will claim the full amount back, including all costs, plus you will reclaim your excess from them.

 

On a slightly different note, have you had the house inspected for any other water damage. Has water affected anything else ? It might be worth checking.

We could do with some help from you.

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I have now instructed my insurance company to process this, I spoke to the loss adjustor who again repeated the fact that we should not be seen to gain any benefit from this. I stated that it was not our intention to replace the floor but through his clients negligence I now have to and should not bear any financial costs. He refused to budge I did say does he not have a duty to mitigate his clients potential losses and he said unfortunately it is the law, that bit totally confused me.

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Not exactly the law but it is called betterment. Technically the loss adjuster is correct but such arguments rarely win at Court.

 

However, saying that, usually they don't try it on unless it is a lot of money as you are able to claim for incovenience during the damage/ repairs and loss of enjoyment of your property which sort of cancels it out....

 

Glen Haysmen -v- Mrs Rogers Films Limited 2008 (QB) is a good case to quote. It's one where a film company damaged a homeowners drive when doing a film shoot (a daniel craig movie I think). The drive was in a poor state with holes in the tarmac filled in with concrete. Judge awarded repair costs in full even though the homeowner would have a brand spanking new drive.

 

Personally I would quote the above case and tell the defendants to get lstuffed and tell them if they continue to require a contribution you will commence a claim for damages as a result of the incovenience you have incurred due to the damage and repairs.

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I have now instructed my insurance company to process this, I spoke to the loss adjustor who again repeated the fact that we should not be seen to gain any benefit from this. I stated that it was not our intention to replace the floor but through his clients negligence I now have to and should not bear any financial costs. He refused to budge I did say does he not have a duty to mitigate his clients potential losses and he said unfortunately it is the law, that bit totally confused me.

 

What it might be, is that the water company have a legal responsibility to compensate home owners for any damage they cause, but this may only be on an indemnity basis and not new for old. The water company are dealing with this themselves throught this legal responsibility, rather than through any Insurance they may carry. If this is the case, this is what the loss adjuster is referring to but is a bit daft. Most people in these circumstances will claim of their own Home Insurance. It will only be those without Insurance, that would have to rely on the water company.

We could do with some help from you.

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Here is the email I recieved from the loss adjustor

 

" I write further to our earlier conversation and to summarise the options available to you in order to rectify the damage which has been caused to your property following this incident on XXXXX

 

 

The claim can continue to be pursued directly against XXXXXXX and I will continue to handle this on their / their Insurers behalf. If this option is chosen then I will require quotations from you to:-

  • Uplift and repair those sunken areas on your driveway.
  • Re-sand and reseal the damage caused to your kitchen flooring.
  • Replace the damaged laminate flooring.

As explained and subject to acceptable quotations being provided, the driveway and kitchen floor works will be settled without any contribution being made by yourself. I must however make a suitable deduction from any settlement made on the laminate flooring to reflect indemnity i.e.to take into account the existing age of the flooring (I am told between 3-5 years) and to reflect fair wear and tear.

Alternatively you can ask your own Insurers to handle this matter on your behalf. Whilst I have not seen a copy of your Policy which I understand is arranged with XXXX it is usual for such household policies to be underwritten on what is generally known as a "New for Old Basis". This will provide you with wider cover as far as the laminate flooring is concerned and should avoid the need for you to contribute towards these works with the full cost being borne by your Insurers. Of course should you decide on this course of action you Insurers will then pursue a subrogated recovery action against XXXX to recover their eventual outlay."

 

Thoughts anyone, I am now persuing through my insurance company.

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Translation.

 

You are better off claiming from your own Home Insurance policy, as the water companies Insurance is not new for old.

 

That is what they are saying in short.

 

Obviously the water companies Insurers don't want to deal with claims, apart from those where householders don't have their own Insurance.

 

You should make a separate complaint against the water company and ask for compensation, to reflect the inconvenience they have caused you. I suspect that they might have to do this, but it is not something that would involve Insurance. Write a complaint to the water companies head office.

We could do with some help from you.

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Translation.

 

You are better off claiming from your own Home Insurance policy, as the water companies Insurance is not new for old.

 

That is what they are saying in short.

 

Obviously the water companies Insurers don't want to deal with claims, apart from those where householders don't have their own Insurance.

 

You should make a separate complaint against the water company and ask for compensation, to reflect the inconvenience they have caused you. I suspect that they might have to do this, but it is not something that would involve Insurance. Write a complaint to the water companies head office.

 

This is useful is there a format in how the complain should be laid out and any terminology that would be useful

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This is useful is there a format in how the complain should be laid out and any terminology that would be useful

 

Having dealt with complaints on behalf of a large Insurance company, I can tell you that often the best complaints are those that are written in a straightforward manner without all the terminology. You need the water company to fully grasp the inconvenience that they have caused you and your family, so you need to make the letter very personal i.e about your circumstances and the way you feel you have been treated.

 

What you don't want to do, is make the letter sound as if all you care about is compensation of a certain value. This would take away from the story you have to tell them.

We could do with some help from you.

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Dear afcwben,

 

this is the sort of behaviour which reinforces all the stereotypical impression we as consumers have of the insurance industry.

 

Had you thought (tongue in cheek) to ask for a 5 year old floor to be installed? Then you'd be in the same position as you were before the event and your insurer would not be giving you betterment.

 

This is obviously a preposterous state of affairs. I wish I had taken a note of the source but I read (yes, on t'initernet) that there was case law on this issue - where the only way to get the insured back to the condition they were in before the event would be to involve a degree of betterment. The example was a car accident where damaged but part worn tyres were replaced by new. IIRC the ruling was that where the only way of returning the insured to the pre-event condition involved betterment the insurer was liable for the whole cost.

 

Of course you wouldn't be replacing your floor after only five years would you?

 

Wishing you huge moral support and

regards,

Jet

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