Hot air balloon marriage proposal gone wrong

[david_v_goliath]

I am looking for some advice regarding how best to make a claim for compensation, in relation to the supply of a service, and a serious failure by the supplier to perform part of that service. Apologies if this is not the correct sub-forum (please let me know if I should delete and repost elsewhere).

 

A brief summary of the situation is below. I am not the claimant – but I will be assisting the claimant to negotiate with the supplier, and bring a claim if necessary.

 

Summary:

 

1. The claimant booked a private hot air balloon flight, for the purpose of a marriage proposal. The cost was £750, and the amount was paid via a bank transfer,
2. Photography was included as part of the cost of the private flight, and was an integral part of the experience. The claimant wanted the ‘special moment’ to be captured in a photograph.
3. he flight went ahead, photos were taken, and the proposal was successful (phew!)
4. However, the supplier wrote to the claimant the next day stating that unfortunately, “the photos have not come out”. The supplier stated that “I don’t know why or how but for some reason (I suspect the setting was inadvertently changed during the connecting of the camera) no photos were taken”, and apologised sincerely.
5. The claimant is extremely disappointed and upset. The photography was an integral part of the marriage proposal. The claimant asked for a partial refund.
6. The supplier offered £20 as a gesture of goodwill, on the basis that this is the “Normal cost (to our scheduled passengers) for inflight photos”. The claimant is frankly insulted by the level of the offer. He would have expected – at a very minimum – the supplier to offer to have a second flight (free of charge) to repeat the photography. However, given the tone of the supplier’s response, the claimant would not accept this (even if it was offered).

 

Complaint:

 

I am assisting the claimant in negotiating for a reasonable amount of compensation. My thoughts are that £20 is nowhere near enough. I think that the supplier has been negligent in the provision of his services. Had the supplier taken even the basic precaution of double-checking that the photo had been successfully taken, then he would have had an opportunity to rectify the mistake then and there (i.e. mid-flight!). He did not do this. And as a result, the claimant is now left without photography capturing this moment.

 

Compensation:

 

Clearly, it is not straightforward to disentangle: (a) the value of the flight experience from (b) the value of the photography. Nor is it straightforward to place a value on (c) the distress and upset the supplier’s failure has caused. However, I believe that the claimant is entitled to compensation of (a) + (c). i.e. the value of the photography, and also an amount in lieu of the distress and upset caused.

 

Is there any precedent on such claims (either from similar issues, or related ones – such as a failure of wedding photographers to capture a wedding properly)? Would you have any advice on how best to approach the claim (first informally, and then if the supplier does not provide a reasonable amount of compensation, then formally through the small claims court?)

 

My view is that (a) = £750, since the photography was an integral part of the experience, and the claimant would not have purchased the service if photography was not included. I don’t know how to value (c), but I do know that an offer of £20 does not cover any of this.

[dx100uk]

just be careful.

 

the balloon operator is not a wedding photographer and never was, so trying to link his failure to that of a such a like service provider is flawed .

 

what are his normal prices for a balloon flight of the same duration compared to that of your flight,

that diff would be what is claimable.

 

you certainly wont be able to claim distress or anything like that in small claim court, they are not quantifiable.

 

 

 

[BankFodder]

I agree with what my site team colleague has said above – except that as I understand it, you paid a single price to a balloon flight operator for an inclusive deal – flight plus photographs. In that case, the photographer was a contractor or an employee working for the balloon flight operator and the blue flight operator would be responsible to you for the lot.

If this is a correct assessment of the situation then you are right to complain against the balloon flight operator.

On the point as to what compensation might be reasonable – I agree with you completely that £20 is ridiculous. It seems to me that a substantial part of your reasonable expectation from the arrangement was that these moments would be recorded for you and your family and any children/grandchildren et cetera. On that basis I think that the photographs are very substantial part of the experience. I have to say that simply a payment of money would scarcely compensate for this loss.

In most contracts it is quite easy to understand what your expectation loss is. If you make a contract for a computer worth £3000 – then your expectation is to gain £3000 and if you don't receive the computer then your expectation loss of £3000. Of course you would then subtract the price of that computer to give you a net expectation loss.

Where the loss is some kind of an ascertainable value – then it is far more difficult and eventually it will be up to a court to agree with your assessment – or to disagree with it. This means that if you made a claim you would have to say that only a payment of £XXX would compensate you for the loss of these photographs and this part of the heritage that you would pass on to your family and future family.

Of course we could look at actual losses which would be much easier. From that point of view you would have to take the cost of the balloon flight without the photography aspect and then deduct that from the price that you paid – £750. I find it difficult to imagine the balloon flight would simply cost £750. So if a balloon flight for two people cost, say, £200 then that would give you an expectation loss of £550. You will have to consider whether £550 compensates you. It's not a bad bit of cash – but on the other hand the photographic record may be much more valuable to you and a judge might go along with that. On the other hand, of course, a judge might not go along with it.

Frankly I think the best solution would be if the balloon company gave you another flight for free plus the photographer. That will be the least complicated solution. The balloon flight operator might then try to be a bit miserly about it and say that you had to pay at least for the balloon flight – and they would throw in the photographer for free. I would consider that to be unacceptable because in order to have a new balloon flight, you would have to make new arrangements, reserve extra time, travel there and travel back, there is a risk that the weather might go to worms and the flight would have to be rescheduled – and as we are now coming into October et cetera that like it is even greater possibility. It may also be that even though the flight could occur, the photographs might be taken in some rather cloudy weather and wouldn't be so attractive. On that basis, it seems to me that the free balloon flight should be something that the balloon flight operator should give you by way of compensation.

I think that you need to come back here having discovered the cost of the balloon flight without photography. The cost/difficulty to you of arranging and going on a new balloon flight. And what you think it might take to compensate you in money terms for the enhanced expectation loss – meaning the un-ascertainable loss that you are suffering as a result of not having the photographs.

[BankFodder]

By the way, which balloon company did you use? Also, what was the name of the photographer

[david_v_goliath]

Thank you both for your replies. I think I need to clarify a few points in relation to issues / questions you have both raised:

 

1. The "supplier" is Cotswold Balloon Safaris Ltd. The person who operates the flights, is the same person responsible for the photography. i.e. the pilot takes the photos.

 

2.  You are correct, @dx100uk that the supplier is not a wedding photographer (I was simply using that as a comparable situation, in that photography is of similar emotional value, and it is time sensitive - i.e. it needs to be performed at the time of the event, not at some later date). 

 

3. You are spot on  @BankFodder, that the £750 is for an all-inclusive package. It includes the flight and the photography. There is no convenient menu of options, that would enable me to easily separate out the two, i.e. you cannot purchase the balloon flight without photography, for a smaller amount of money. The issue here, I think, is that it doesn't actually cost the supplier anything extra to take a picture. There is no material marginal cost to him of doing so. He simply pulls out the camera and takes a picture at the right moment.

 

4. However, those pictures obviously have significant value to the claimant. The photos were an integral part of the service, and the claimant entered into the contract with the expectation of having pictures to capture the moment. He would not have entered into the contract, if pictures were not offered. There is clear email correspondence between the claimant and the supplier in which the claimant asks to confirm that photography is included / available, and the supplier replies "We would include the photos in the price you are paying for the private flight.

 

Does any of the above change your advice?

 

I can certainly come up with an estimate of the cost of arranging a new balloon flight (what you call the ascertainable cost), and ask the claimant to put a number on the suffering as a result of not having the photos (what you call un-ascertainable cost, and what @dx100uk says I cannot claim in a small claims court). These numbers will be significantly higher than the £750 cost - as they will include (presumably) the equivalent package at a competitor, plus the travel costs, etc!

[BankFodder]

That's fine. Just put the costs together whatever they are. Are you saying that the pilot was the photographer?

[david_v_goliath]

Yes - it's the same person. The were only three people in the balloon - 1) the person who operates the balloon / takes the picture, 2) the claimant, 3) his now fiance. 

[dx100uk]

so it looks like the 'photography' is there regardless to the price of a special event flight to all intent and purpose..

the camera is always there on all flights, it just decided to fail or there was an operator error.

 

should the provider have taken better care to ensure there was a backup or 2nd camera?

p'haps yes.

 

i will suspect there is no guarantee or anything regarding photography with their T&C's at all. should there be?

p'haps yes.

 

should the provider offer a slightly better financial settlement?

p'haps yes.

 

 

[Manxman in exile]

Make a counter-offer.

 

£750 would be out of the question and I doubt they'll provide a free second ascent.  (Unless you could tie it into some humourous publicity stunt for the balloon provider and your friend was happy to do this - "My dream proposal didn't come out but with Cotswold Balloon Safari the sky's the limit!" in the local paper/TV)

 

Otherwise, what would your friend be willing to accept?  I think he'd be lucky to get £200 absolute max,  so tell the supplier you want £275 - 350 and haggle.

 

Seriously - what's a realistic valuation of a proposal photo?  I don't know anybody who has one.  The memorable thing here is that it was in a baloon - not that it was (or wasn't) photographed.  I'm often surprised that people miss experiencing real-life moments because they're obsessed with recording them for posterity.

Edited September 24, 2020 by Manxman in exile