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View Full Version : OT : installation breakages.



beetle
04-06-2004, 08:43 PM
way OT here,



when a retailer is installing a peice of equipment (anything : big / small etc) in this case talking about a spa pool.

what is the usuall protocol if they break it or damage it in the process of installing it?

who pays? or who fixes it ? when it is already on site so to speak. ? can you ask for full replacement?


its been one of those weeks where if its gonna go wrong it has and will.
and now we are left holding the egg so to speak after it has broken..... :(


so we now have a new spa installed that we cant use as it is broken..... or damaged.... it will work but the point is we dont want to use broken items as it may injure someone......

what can we do? is it possible for a full replacement? money back or what?

:|


beetle

metla
04-06-2004, 08:53 PM
Who ever done the damage is respocible for fixing it/,making right.

If you have paid for the item and install then they are obliged to present you with an installed working unit.

If they dont agree,Get nasty,real nasty,throw the book at them,.

Capt.Hook
04-06-2004, 08:59 PM
If the retailer was installing it and broke it,they should pay for replacemant.They should have insurance for this problem occuring.If you haven't paid for the spa yet, Don't.If you have it's a replacemant or money back.Any problems,get the Fair Go team in.

Pointless me booking in for a holiday Beetle if the spa is broke.

Best of luck.

Hook

beetle
04-06-2004, 09:05 PM
Havent even used it yet.....:(

and it has not had any water in it yet......

beetle

metla
04-06-2004, 09:06 PM
Insurence is a moot point,Most won't claim as the insure company will just up the premiums,and if they do constant claims(and i assure you damage in many business are very commen) then the premuims will skyrocket.

So,In makes no difference as to how they will cover it,But cover it they have to.

metla
04-06-2004, 09:08 PM
Holy...me speel bad

R2x1
04-06-2004, 09:09 PM
The Installers job is to fix/replace the unit, your job is to advise them where the nearest coffee machine is(optional)

Bazza
04-06-2004, 09:20 PM
> Who ever done the damage is respocible for fixing
> it/,making right.

metla
04-06-2004, 09:31 PM
geees...whoever you quoted sure can't spell well, other then that they seem amazingly intelligent and worth taking heed of.....

beetle
04-06-2004, 09:42 PM
am glad he doesnt work for me then....:p

may never get anything done round here then, ......:p


need liams coffee machine i think....... how much is a cup of coffee??? $1.50?
$2.00? may need to sell a lot of coffee to cover cost of repair or replacement....spa.

:D

thanxs all.

beetle

metla
04-06-2004, 09:46 PM
I doubt it will cause much greif for the workman involved.

Heck,i once dropped a 15t excavator into the brisbane river...It was goodbye to that expensive piece of equipment.....

metla
04-06-2004, 09:53 PM
Actually,come to think of it i did lose my job.....

Pheonix
04-06-2004, 10:41 PM
There's a suprise :D

metla
04-06-2004, 10:42 PM
Indeed,managment had an attitude problem.

........HA

Still,i was following orders to the letter and the foreman was heavily intoxicated.

Billy T
04-06-2004, 11:18 PM
One set of water wings was never going to be enough metla.:^O

Cheers

Billy 8-{)

[pre]beetle, it is not your problem so you don't accept the job.
It is their problem to fix. Look at it this way, if a dealership
was delivering a new car to you and wrecked it on the way,
would you expect to accept delivery and make the payments
on the wreckage?[/pre

beetle
04-06-2004, 11:26 PM
they have been storing it for about 6 weeks for us...:(

and its already paid for.....

sigh.

beetle

Jester
04-06-2004, 11:29 PM
> Insurence is a moot point,Most won't claim as the
> insure company will just up the premiums,and if they
> do constant claims(and i assure you damage in many
> business are very commen) then the premuims will
> skyrocket.

Not always.

You will find that the majority of people/tradesmen involved in working on third party goods or property will hold Pulblic Liability Insurance. This protects them for the legal liability they may invite by damaging something that is not theirs dring the course of their work.

Premiums can be increased if there have been previous claims, however some companies choose to carry the risk themselves by opting for a higher excess. The fact they they may have a high premium is not your concern.

In insurance liability can arise from statute, tort or contract.

The Consumers Guarantee Act 1993 may apply Beetle (has to be fit for purpose, acceptable quality, comply with description, be installed with reasonable care and skill etc), however it doesn't usually extend to commercial purposes. The definition of whether it is for commercial use or not depends on whether the spa pool was to be used for you and your family personally or you were to get $$ for it - such as being in a unit for rent.

As far as Tort goes, there is a common law obligation to carry out work without damaging third party property, and it appears that these have been breached.

If you had an agreement with the installer/supplier to purchase an installed and working spa pool, and this hasn't happened, there is a breach of contract.

If all else fails, claim on your insurance. You are not at fault, and therefore this should not affect your future risk/premiums. Your insurers will then look after you, and although you will have to pay your excess, they will seek recovery from the at fault party. They are obliged to recover any uninsured loss first (ie, your excess), and so you shouldn't be out of pocket.

J
:D

metla
04-06-2004, 11:34 PM
uh....minimum public liabilty we have been able to take out has been 1 million dollars worth,and usually they ask for 8mil and over....

Having been involved in a number of businesses none have ever fallen back on insurence unless the cost of making right has been potentially crippiling.

Jester
04-06-2004, 11:45 PM
You have been lucky Metla :)

Of course it's the age old decision. Pay money into a 'pool' with others to share the likely financial burden if things go wrong, or hold it back and hope your cashflow can take a potential claim, not to mention your business' credibility if the worst happens.

This week alone I have been involved with two firms who have damaged other people's property, with one incident in particular halting the construction of a multi million dollar development, not only causing physical and very expensive damage, but also causing the developer to possibly incur penalty charges..

All I can say is that the people involved are happy to only pay $500.00.

J
:D

Murray P
05-06-2004, 12:10 AM
Seems to be the retailers contractors or employees have done the damage and I take it your purchase was for installed goods or they took it on to arrange installation. They, the retailer, have the responsibility and liability to put it right. Purley based on how I read what you've said. You don't say if you've talked it over with the retailer, I'm sure it will go more easily than you think.

On the matter of insurance. It's a necessary evil, more so foe some industries than others as Jester says, in the construction/development game costs and penalties can rack up very quickly while fritzing a customers computer may be no big deal, if there house goes with it you'll be glad of the cover. Just covering the cost of legal threat can turn your stomach.

Cheers Murray P

metla
05-06-2004, 12:22 AM
Not so much "I" have been lucky, I have just been in a position to see and be involved in the going's on, most notably in the family business...which if I was in charge of would surely have been bankrupt long ago.

Typically anything less then 30 grand is covered at our end.

metla
05-06-2004, 12:23 AM
insurence won't payout on penalties.

Murray P
05-06-2004, 12:31 AM
You can insure virtually anything even unforeseen liabilities from past actions/businesses.

Cheers Murray P

Must check the fine print for penalties. Might it squeeze into liquidated damages?

metla
05-06-2004, 12:38 AM
hmm...i'll have to ask the oldboy how it works,but penalties would be a waste of time if you could insure against them.

Murray P
05-06-2004, 01:12 AM
I only mean, to insure against them as part of a package like a "contractors all risks" policy, if they are incurred in the course of an insurable event. Say you drop the back hoe in the creek and so the job gets behind schedule.

Cheers Murray P

Jester
05-06-2004, 10:06 AM
Yeah the penalty has to be as a result of your action, as a Third Party, under liability insurance. It has to be 'resonably forseeable' and as a direct result of your stuff up.

You can insure almost anything - if you are willing to pay of course.

Competitions that the public can participate in, like fishing, golf (hole in one etc), TV promotions, car competions (find the winning cap off a bottle of soda etc) are the most interesting ones I've seen insured.

But we digress.

Lets hope Beetle gets it sorted!

beetle
05-06-2004, 12:25 PM
had a visit this morn from "the Boss" to see if fixable,

we want it replaced. it could be fixed, (glue) but if a customer leans on it again, in say 1 week, 1 month , 1 year we will have to repair again. and leaving it as is, is dangerous.... injury city.....

the boss agreed with us, spending that much money and to have a damaged item...... theres a posibility it was damaged while in storage, as to break that much off! had to have a substantial wack........ or droped.

keep ya posted,

this lovely pool sitting doing nothing, and the all new spa room specially set up for it, and cant or shouldnt use it till all sorted.

:(


not sure the outcome, time will tell.


beetle

metla
05-06-2004, 12:28 PM
hmmm....will the damaged item be up for sale????

godfather
05-06-2004, 12:34 PM
Look on the positive side beetle.

Something broke, and this time it was not your fault.

This must be an uncommon event in WangaVegas, so celebrate it!

beetle
05-06-2004, 12:45 PM
options.

they may take it away and reframe it......

or they may replace it completely.....
(replaced item needs to be same colour, amount of jets and fit same amount of people in it)

they may fix it the small broken bit......to have it possibly break again......
(and have us on there case for the next foreseable future or cause injury to people in the future)

they may wish we had never walked in there door at all......
im picking this is the most likely scenario.

and yes for once its not my fault, but i still feel as if i am at fault....... and this time i cant fix it......

Murphy needs to check out real soon....... as he has long overstayed his irish welcome.

beetle

metla
05-06-2004, 12:47 PM
If they just glue it,wait a week,re-break it,then ring them and tell them the first people to use it hurt themselves and have named the Motel and the firm who caused the initial damage in a law suit.......

metla
05-06-2004, 12:50 PM
And futhermore,You did not pay for a broken unit,You have paid for a unit in brand new condition,Don't stand for a repair,although the re-framing option sounds like a half decent idea,with all the plumbing and insulation and electronics in a modern spa pool they are never the same again.

Fire-and-Ice
05-06-2004, 01:07 PM
Get what you paid for Beetle - a new, undamaged spa of the kind as agreed on when you handed over the money.

Let them take the damaged one away and flog it off to someone else to recoup their expenses if they must, but insist on getting what you paid for in the first place or a full refund. No second-best. ;-)

Murray P
05-06-2004, 05:55 PM
Hi beet. If they want to fix it, take a discount on the price.

If it's fibreglass or acylic it can be fixed seamlessly and be stronger than the original material. But, only go down this track if they get the right person with the right materials to fix it. If that person is any good they will also give you a guarantee as to colour match, colour fastness and durability to go along with the retailers guarantee/warrenty. You'll also need to ascertain whether the repair will be backed by the pool's manufacturer (ie, approved installer/repair agent).

It's not a particularly cheap option to have it repaired although, obviously cheaper for the supplier than replacement. Only accept if you can negotiate a discount and your completely comfortable with the idea.

Cheers Murray P

beetle
05-06-2004, 08:49 PM
ok just to clear things up a little, it does not seem to have damaged the fibreglass just the wooden frame as far as we know at this point....

but looks can be decieving cant they? ?:|

so may not be as major as first thought, but still not a good look.

beetle

Murray P
05-06-2004, 09:15 PM
If the frame (cradle) is damaged I don't see any problem with them replacing that, unless the fibreglass has been moulded around it, it should be a simple job. Still try for a discount for the pain and suffering ;)

Cheers Murray P

Winston001
05-06-2004, 10:59 PM
> insurence won't payout on penalties.

Just a few thoughts. Firstly I am sure you will get this problem sorted Beetle. If the spa itself isn't damaged then a repaired frame sounds reasonable. Not that I'm any expert.

As to insurance, I have to agree with Jester. Third Party cover is cheap, seldom used, and humungously valuable when needed. The example of repairing a computer which then proceeds to burn a house down is excellent. The repairer does a $200 job, makes a small but critical error, and faces a $200,000 claim for the fire. We all make mistakes.

As to the matter of penalties: the common law abhors penalties. As a rule, you cannot sue for a penalty. Penalty means punishment. Probably a Latin root, but I can't be bothered Googling.

Anyway, one exception is Punitive Damages. This is a sum of money awarded to punish the wrongdoer. But it is rare. An example is a recent claim against a rapist by the victim. I'm not sure of the result.

Murray is on to it. I can hear anyone who has read this far saying that the foregoing is ridiculous. Delays to projects often incurr penalties. Don't they?

Yes but they aren't specifically penalties. Liquidated damages is the term and these sums are part of a contract and agreed at the very start. There isn't any punishment. Merely compensation for non-performance.

So penalties cannot be sued for. Economic loss can be - and is.

Cheers and goodnight
Winston001

Lohsing
06-06-2004, 12:57 AM
> hmm...i'll have to ask the oldboy how it works,but
> penalties would be a waste of time if you could
> insure against them.

Only skim-read the post so far, but you can insure for public liability insurance.

Lo.

metla
06-06-2004, 11:29 AM
Poor skimming there Lo,i was refering to Penalties for going over time.

In the case of one site we are on at the moment its 10 thousand a day,and while as they say you can insure against anything,.........The entire point of penalties is to make sure the contractor does the job in the specified timeframe.

metla
06-06-2004, 11:32 AM
>So penalties cannot be sued for. Economic loss can be - and is

And,thats what retentions and time/progress payments are for,they don't sue,you just don't get paid,or they bill you and if you object you never get a contract again.

metla
06-06-2004, 11:35 AM
Just might add,i am no expert in the matter and if your arguing the legalities of the matter i am instantly out of my depth,And futher more there is no doubt over the cleverness of those involved in the discussion,But if you ever wen't into the contracting business you would never get a second job.

Lohsing
06-06-2004, 02:05 PM
> Poor skimming there Lo,i was refering to Penalties
> for going over time.

Aw, come on!! It was 1am when I posted! :p

Lo.

Billy T
06-06-2004, 02:29 PM
(paraphrased)

Post in haste, regret at leisure.;)

Cheers

Billy 8-{) :D

Murray P
06-06-2004, 02:40 PM
> But if you ever wen't into the contracting business you would never get a second job.

I've entered into many contracts and have set up and/or managed more. However I have little direct experience of commercial contracts as opposed to domestic which are totally different beasties as far as the details, expectations and enforcement go.

Generally, commercial is the more ruthless of the two industry sectors, but both are equally good at generating - a disregard for human niceties, grey hairs and ulcers for those who choose to reside at the sharp end.

Cheers Murray P

metla
06-06-2004, 04:02 PM
Many firms out there will run a smaller company bankrupt with glee in order to get the bottom line looking better.

Snakes in suits.

Winston001
06-06-2004, 05:23 PM
Personally I regard the conduct you refer to Metla as dishonest and immoral. Sadly it happens at every level of life. From guys using child custody disputes to get at wives (never mind the kids) to people deliberately delaying payment to a contractor cos they know that can.

My explanation about penalties may sound double-Dutch. Contractors all talk about penalties. Thats the way they view liquidated damages. But strictly payments for being late or providing less than you promised, are actually damages. That is, compensation to the job owner for the contractor not performing in the specified period.

Generally we avoid the word "penalty" although you will find it a bit more these days. Nevertheless it is misleading.

Murray P
06-06-2004, 05:39 PM
> Snakes in suites.

Too true, Mets and Winnie. Suites aren't a prerequisite for slimey behavior but, along with a cell phone do seem to cause some sort of trigger in people.

Cheers Murray P

Sb0h
07-06-2004, 10:41 AM
Re Public Liability insurance. It is my understanding that public liability will not cover anything you are working on as part of your job. So if the spa installer damages the spa during installation it is not covered, however if he smashes a window bring the spa inside then that would be covered. So in this case public liability would not help the spa retailer or the installers.

Lohsing
07-06-2004, 11:21 AM
> Re Public Liability insurance. It is my
> understanding that public liability will not cover
> anything you are working on as part of your job. So
> if the spa installer damages the spa during
> installation it is not covered, however if he smashes
> a window bring the spa inside then that would be
> covered. So in this case public liability would not
> help the spa retailer or the installers.

Except of course if the installation was done poorly causing serious injury through normal use to another person.

That's when public liability insurance is required.

Lo.