Property damage claim rejected despite evidence provided.

[Pumpkin1980]

Hello everyone, 

 

I am a Sole Trader with a small prop hire and vintage furniture business. I recently paid a company cleaning company to clean a rather expensive 1970s sofa (retail value approx £5000) I had just purchase that had some historic stains on it. In advance of the cleaning I informed the company of the sofa's value, age and as much detail about what was needed as possible and they assured me they would take good care of it but unfortunately they damaged the fabric in several areas. 

 

It appears that in trying to remove the stains (which looked like pen marks) the cleaner has bleached the colour of the fabric on and around the stain. This has made the sofa look significantly worse because the problem areas originally pprox 1cm in length are now more like patches of 10 - 20cm of damage. 

 

I contacted the cleaning company about this and they referred me to their Insurance company, NIG UK with whom I have been communicating directly. I thought it unusual that I had to communicate with the insurance company and not the cleaning company. l provided before and after photos (attached) which I think clearly highlights the damage but the insurance company say their client is not liable stating the following: 

 

"A patch test was completed by our client before the contracted clean took place to ensure there was no reaction to the product used. The technician was also suitably trained for this task.

Our insured confirmed that there was a number of stains on the sofa and they further made enquiries with you to ascertain what these were from. Some of the stains were successfully treated however, some could not be moved. 

Our insured made it clear in the terms of contract that they would not be liable for wear and tear, discolouration which becomes more visible once soiling has been removed or after the stain removal treatment. Discolouration or colour loss caused by domestic cleaning products may become more visible after soiling and product residue has been removed.

You had purchased a sofa that had pre existing damage and therefore it is not reasonable to attempt to pursue a claim against the cleaning company tasked with removing those stains already present.

Without prejudice we must also point out that you are not entitled to claim for the retail value of the sofa.

Based on the above we do not believe our insured has been negligent and therefore can confirm that we have no offers to make."

 

I have strongly contested their decision but with no joy.

 

Could someone please help with this matter? Do I have a case to take to court? Is there an Ombudsman or very affordable solicitor that can help?

I am a small business and cannot easily absorb this loss or afford for the sofa to be reupholstered or replaced. 

 

Many thanks in advance for any assistance with this. 

Tom

 

Sofa damage images copy.pdf

[BankFodder]

If this went to court, what would be the value of the claim? I'm talking for the replacement sofa or for repairing the damage caused.

They refer to some contract which you apparently agreed to in which the cleaning risks were stated and you apparently accepted its risks. Can you tell us about that.

In terms of dealing directly with insurers – this is entirely normal that companies try to fob their victims off onto an insurance company so that they don't have to deal with the matter themselves. There is nothing to stop you dealing directly with the cleaning company – although they wouldn't like it – but do we really care?

[Pumpkin1980]

Hi BankFodder, thanks for your quick reply. 

 

If it went to court I would claim for £4000 - £6000 which is the spectrum between repair and replacement. The contract they referred to I'm assuming is the following terms and conditions in their website: 

 

"(5.1) Liability

Cleaner Cleaner Ltd reserves the right not to be liable for:

(5.1.a) Wear, discolouration or staining of carpets, rugs and upholstery becoming more visible once soiling has been removed or after stain removal treatment. Discolouration or colour loss caused by domestic cleaning products may become more visible after soiling and product residue has been removed.

 

(5.1.b) Professional cleaning following a home attempt can reveal discolouration or colour loss caused by domestic cleaning products; this may become more visible after soiling and/or product residue has been removed.

 

(5.1.c) The larger the stain the less likely it is to blend.

 

(5.1.d) Failing to remove old/permanent stains that cannot be removed using industry approved professional carpet, rug and upholstery cleaning methods.

 

(5.1.e) We can only clean the surface of the carpets and upholstery/mattresses, if the stains and smells have gone into the underlay or the carpet or the filling of the upholstery/mattress, we have no access to clean this.

 

(5.1.d) Stains not visible to the naked eye may become visible once cleaning has taken place.

 

(5.1.e) Removal of grey or dark edges of fitted carpets, these are filtration marks and most of the time cannot be fully removed.

 

(5.1.f) Existing damage or spillage that cannot be cleaned/removed completely using industry approved professional cleaning detergents and equipment, or professional carpet, rug and upholstery cleaning equipment.

 

(5.1.g) Damages becoming more visible after inappropriate domestic products used before our service (e.g. if products used soften the carpet adhesive and cause delamination of the fibres)

 

(5.1.g.1) Moth damage to carpets, rugs or upholstery becoming more visible after the service.

 

(5.1.h) Where there is/has been moth infestation, carpet or rug fibres can become loose and can be extracted with the high filtration vacuum, therefore we will only clean around these areas.

 

(5.1.i) Cleaner Cleaner will not be liable for verbal requests made by customer either to cleaners or office staff, i.e. to dispose certain items but not some, to accept or reject some deliveries made to the property, to lock some locks but not others, to not clean certain areas, to do extra tasks not included in our tasks list. All special requests should be made clearly via emailed to [email protected] to avoid miscommunication.

 

(5.1.j) Upholstery fabric tailoring pen marks to become visible after a professional cleaning: These pen marks are usually on the back of the fabric and the cleaning process and bring them to the surface. There is no way for us to predict this and we cannot be held responsible should this happen.

(5.1.k) Not completing tasks which are not stated in the booked service package checklist.

 

(5.1.l) Cleaning jobs not complete due to the lack of hot water or power or poor lighting conditions or due to any other obstruction to the cleaning process.

 

(5.1.m) Not complete cleaning jobs due third party entering or present at the customer’s premises during the cleaning process obstructing our work (workmen, movers, etc.).

 

(5.1.n) Damages caused to special surfaces (such as marble, glass, wood or natural stone), unless you have notified us in writing of their presence before we commence the services.

 

(5.1.o) A reimbursement of any charges paid for a repair of a damaged item carried out by a third party without our written consent.

 

(5.1.p) A damage to items or their loss if caused by any of the following reasons:
– Normal wear and tear or deterioration, leakage or evaporation or from unstable or perishable goods.
– Infestation by moth, vermin or anything similar.
– Cleaning, repairing or restoring goods, unless undertaken by ourselves.
– To jewellery, watches, trinkets, precious stones or metals, money, deeds, securities, stamps, items of sentimental value, coins or goods or collections of any similar kind, unless we have confirmed in writing that we accept responsibility and you have given us description and value of those articles.

– Any goods already proven defective or goods, which are inherently defective.
– To pets or animals (including reptiles, fish and birds) whether in cage, tank or animal carrier.
– To plants.
– To refrigerated or frozen food or drink.
– To data, files, software or digital contents of any computer or similar device.
– To fragile and highly breakable items if they have not been secured or removed by the customer.

 

(5.2.) Cleaner Cleaner Ltd is liable for:

(5.2.a) Keeping all customers’ information confidential.

 

(5.2.b) Key replacement/locksmith fees only if keys were lost by our operatives. There is a £100 per household liability limit. If a master key has been lost by our operatives, our liability is limited to £200.

 

(5.2.c) The repair of a damaged item at its cost if the damage was caused by a member of our staff. For this purpose, a representative of Cleaner Cleaner Ltd must be allowed to return to the client’s property in order to assess the damage in person and determine if it is possible to repair the damaged item.

 

If the item cannot be repaired, Cleaner Cleaner Ltd will rectify the problem by crediting the customer with the item’s present actual cash value toward a like replacement from a Cleaner Cleaner Ltd’s source upon payment of cleaning services rendered. 

 

(6.0) Important information about after builders cleaning

Building works always take longer than scheduled. Please speak to your builders and find out when the works will be finished. In case of after builders cleaning where works have not been completed prior to cleaning service, we will not guarantee our service, and if dusty surfaces are found post cleaning, we will not return free of charge. We will make every effort to do the best possible clean considering the circumstances.

(7.0) INSURANCE

Cleaner Cleaner Ltd has a Public liability insurance of £2 000 000, and Employer’s liability insurance for £10 000 000.

There is £200 excess for any claim, of which £100 are paid by customer and £100 by Cleaner Cleaner Ltd.

 

These terms and conditions shall be governed by the relevant United Kingdom law, and by agreeing to be bound by them the customer agrees to submit to the exclusive jurisdiction of the relevant courts of the United Kingdom.

 

Cleaner Cleaner Ltd reserves the right to make any changes to any part of these terms and conditions without giving any prior notice. Should any of the above clauses change all existing customers will be notified. Please check this website for updates."

 

I think the main point here is that the fading to the fabric is clearly a result of where they have scrubbed around the stain and not a result of fading that was already there but that is now revealed due to the fabric being cleaner.  

 

Thanks again, 

Tom

Edited March 10, 2022 by dx100uk
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[BankFodder]

I'm sorry but I'm not able to go through the contractual terms which you posted. They are far too long and involved. You are in the business and you have the expertise.

Could you simply post up the particular terms that you think they would be relying upon.

Also you say that the retail value of the sofa is £5000 and yet you are proposing claiming up to £6000. Can you tell us about that

[unclebulgaria67]

You need your own expert report, from someone who can properly evaluate the condition of the sofa and what is required to repair it.

 

I can see where the Insurers are coming from. The cleaner is only required to take all reasonable professional care when carrying out the work. The cleaning process of taking out a stain would mean that there could be issues with colour of fabric. The test area only gave them an idea. But of course when removing a stain, this is more intensive cleaning.

 

Sure you could look at costs of repairing fabric. There may be treatments available so the colour of fabric is made more uniform, so the patches are less noticeable  

[Pumpkin1980]

Of course my apologies, here you go: 

 

(5.1) Liability

Cleaner Cleaner Ltd reserves the right not to be liable for:

(5.1.a) Wear, discolouration or staining of carpets, rugs and upholstery becoming more visible once soiling has been removed or after stain removal treatment. Discolouration or colour loss caused by domestic cleaning products may become more visible after soiling and product residue has been removed.

 

(5.2.) Cleaner Cleaner Ltd is liable for:

(5.2.c) The repair of a damaged item at its cost if the damage was caused by a member of our staff. For this purpose, a representative of Cleaner Cleaner Ltd must be allowed to return to the client’s property in order to assess the damage in person and determine if it is possible to repair the damaged item. If the item cannot be repaired, Cleaner Cleaner Ltd will rectify the problem by crediting the customer with the item’s present actual cash value toward a like replacement from a Cleaner Cleaner Ltd’s source upon payment of cleaning services rendered. 

 

In regards to 5.1.a, before their work the cleaning company asked me whether I had made an attempt to clean the sofa myself which I hadn't.

 

The amount I would be claiming for is an approximation because I'm not entirely sure of a suitable exact sum to claim. Due to the rarity of the item it cannot be replaced with an identical sofa. The same model sofa in different fabrics range in cost online from £3300 to £13000. I made enquiries in to the cost of having the sofa reupholstered and was given a rough estimate of £4000. I was planning to advertise the sofa for sale at between £4000 - £6000 depending on the results of the cleaning. Perhaps I should also consider lost income from hiring the sofa which is difficult to estimate. The sofa would be hired out at 20% of its retail value per hire.

 

I hope that helps and isn't too waffly. 

[BankFodder]

I agree with my site team colleague that you need a report from an independent expert.

Although it is clear from their contract that they protect themselves from reasonable eventualities and you agree to that – and of course because you are both trading, you don't take the benefit of consumer contract protection, to my untrained eye the damaged area on the sofa very substantially exceeds the defective area in the photograph which was taken before the cleaning.

If you can get an independent expert to say that although the kind of damage which has been caused is entirely reasonable and foreseeable by the contract but the extent of the damage is excessive, then you are in with a good chance.

Of course to get in independent assessment will cost you some money and so you need to start establishing a paper trail so that it is clear to the other side what you're doing, that they have their own opportunity to comment and that they are aware of the fees that you are going to be incurring.

So I suggest that you start off by writing to the company – don't bother about involving the insurers – and tell them that you don't accept the position. You consider the damage which has been caused is excessive and you are proposing to get in independent inspection and you are letting them know about this and that there may be fees involved.
Tell them also that if the independent report confirms your view that the damage caused is excessive and therefore not covered by the contractual disclaimers, that you will be looking to them to reimburse you the fee as well as the cost of repairs or the diminution in value of the sofa.
The report should not only be a comment on the damage which has been caused, but a general comment on the condition of the sofa, if possible its value, suggestions for possible remedies – and the possible cost of those remedies if it is at all possible to repair the damage. If it's not possible to repair the damage then the report should say so

Tell them also that you are inviting them if they wish to appoint their own independent expert to visit and carry out their own inspection if they want to produce a comparative report.

I suggest that you give them about five days or seven days notice before you then put this in hand. If you can get a quote for the inspection in advance then you should also provide that to the other side as well.

It's important that nothing is done without warning them in advance.

[Pumpkin1980]

Thanks UncleBulgaria67. From my my experience of furniture and repairs, there is no way to repair the colour of the fabric. All of the fabric must be replaced. In regards to the cleaner taking reasonable professional care; if scrubbing the fabric around a stain could result in the bleaching of the fabrics colour, surely that is not reasonable care?

[Pumpkin1980]

Thank you BankFodder. That is very helpful indeed. I will do exactly that. Many thanks once again for your time. 

 

And of course UncleBulgaria thank you for your time too. It is also great appreciated.

[BankFodder]

Keep us updated.

If you get a report which favours your position, don't imagine that the other side are going to fall into line. You will probably then have to start a county court claim and of course we will help you.

You have to be very careful about deciding exactly how much you are going to claim for. Did you tell them what the value of the sofa was before they started the work? If you didn't – then this is probably  something you need to remember to do in future.

There are three values that you could consider:

• the cost of repairs/restoration of the sofa
• reimbursement of the money you spent purchasing the sofa plus the wasted costs of the cleaning plus the costs of disposing of the sofa
• reimbursement of the value of the sofa if it has some special value which means that it is worth more than the sofa actually cost you. You would normally have informed the cleaning company of this before they started the work.

[Pumpkin1980]

Noted and will do thanks!

 

[Manxman in exile]

Can I also ask about your claim figure?  Have you got quotes to back it up or is it plucked out of the air?

 

I appreciate it's a "vintage" sofa from the 70s and that its design and choice of fabric make it unusual and possibly of particular interest to some purchasers, but £5000+ to replace or to recover?

 

I ask because we are currently getting quotes to repair (springs broken on all three pieces) and recover a 3 pce suite that is 20+years old (we love its classic design - The Sunday Times had it as top ten design of the decade 20 years ago - and it's no longer available) and none of the quotes do far have come to £3k.

 

Its quite possible that your figure can be justified, but if you can't back it up it might be best to be realistic about the amount before issuing a claim.

 

(Also I'm not 100% convinced how you would assess the damage anyway.  The sofa was, after all, stained when you bought it, and while the cleaning company might have made them more prominent, it wasn't pristine when they took it... )

 

[unclebulgaria67]

I used to deal with Home Insurance claims years ago and it is amazing what specialists can do to.  So when you get an expert report, ask them about what the options are for the type of fabric. 

[mantis shrimp]

what was the value of the sofa prior to the cleaning attempt, ie with the stains you were trying to get rid of? 

[Pumpkin1980]

Hi Manxman in Exile. The figure for repair given was based on the median figure from tendering for quotes from 3 different London based upholsterers. Upholstery cost bears little relation to when the piece of furniture was made unless you're using it to inform the type of fabric used which will certainly affect cost. The amount of fabric and cost of labour depend on the pieces design and size. The most expensive quote was £3950 + VAT + fabric (with fabric being anything from £1500 to 5 figures). There will also be additional transport costs. 

 

Hi Mantis Shrimp. I would have advertised the sofa at around £3000 prior to cleaning. 

 

I think at this stage though my main priorities are culpability and liability.

 

Thanks once again everyone for their time. 

Edited March 11, 2022 by Pumpkin1980
miss-worded