NEW X10 replacement can shoot round corners

Started Sep 8, 2012 | Discussions thread
mbb101
Junior MemberPosts: 39
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Re: NEW X10 replacement can shoot round corners
In reply to PAUL TILL, Sep 8, 2012

Hi Paul

Of course I will be pursuing this with Fuji UK but I only opened the package last night so they can't be contacted until Monday.

With regard to the other question the answer is reasonably straightforward. There is no contract between me and Citilink however they owe me a duty of care to transport my goods with reasonable care. The question which usually arises (and is the important issue here) is whether that duty has been breached. Clearly the damage to the cam is so severe that one would expect that a carrier exercising reasonable care would not allow such damage to occur (this is complicated by issues as to whether the damage is reasonably foreseeable, but should not play a part here.)

So it seems to me that the only scenarios are that the damage occurred prior to despatch; the damage occurred during despatch or the damage occurred after delivery. This is solely a question of evidence and whilst a signature is evidence that goods were undamaged it is not determinative, a court will have to look at all the evidence taken together. In this case the package was unopened and sitting on a shelf at home waiting for me to return I opened the package and then took the pictures you see. This was done in front of two other people and therefore the evidence will be that once signed for the parcel sat on a shelf and was not subject to mishandling, this is pretty good quality evidence. All the signature does is give Citilink the possibility of challenging that person saying that they thought the parcel was undamaged but that will not get them far because the signatory will simply say that the parcel was signed for unopened and that will be supported by the other evidence.

Whilst the burden of proving that the damage was caused by Citilink rests with me once it has been established that the damage could not have been caused post delivery then the burden passes to Citilink for them to prove that they did not cause the damage (this is why the severity of damage is so important). This is known as res ipsa loquitor (the thing speaks for itself).

I think the signature is unlikely, on the balance of probabilities, of being sufficient for Citilink to mount a defence. Their only other recourse might be to join Fuji as a party and allege that they were responsible for the damage prior to despatch.

If for instance the damage had been relatively trivial such as a scratch to the paintwork then I would be facing an uphill struggle. However it is unlikely that there will be any litigation I expect this one to settle.

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