VIC Smashed Sewerage Line - Who is Responsible for Costs?

[Vinricky]

Hi.

I had new fencing done on my property recently. The company has smashed through and put a post through the sewerage line. I have had to pay for two plumbers and Yarra Valley had to be called out because the damage is to their pipes. They will be sending out a plumber to fix their pipe in the next few days. And they will also need to remove part of the fence. I am wondering what my options are.

The terms & conditions state:

"The client shall be responsible for:


Obtaining all necessary permits and approvals for the works set out in this quotation. 
Client is responsible for establishing where all underground cables, gas or water mains, sewerage, telephone lines or other like services or utilities which may be in the vicinity of the works area.

The Client must disclose this information prior to works commencing and agree not to hold Xxxx Fencing & Landscaping P/L liable for any resultant damage to the above-mentioned services or utilities.
 Unless otherwise provided for in this quotation, the client shall provide a clear unobstructed work area not less than 400mm either side of fence line.

Failure to do so may result in an additional charge of $50 per man hour to remove such obstructions.
The Client is responsible for identifying the boundary and agrees to advise Xxxx Fencing & Landscaping P/L of any changes to boundary position prior to works commencing. Any survey pegs must be clearly visible.
The Client agrees to provide access to power and water for works to be completed."

Also,

"Approval of Terms & Conditions is required by both Client and Neighbour before your fence can proceed."

The neighbours and I have not signed this document.

Will I be held responsible for cost of all damages under Australian Consumer law? Or have the fence people been negligent in their duties? I haven't spoken to the fencers yet about it but they have not been very nice to deal with so far so I am assuming the worst.

Look forward to a response from someone who would be able to help should things not go well.

Thanks

 

[Lance]

Hi Vinny,

I don't believe the fencing company can shirk all legal obligations by writing terms and conditions to cover themselves. Under Australian Consumer Law all service providers are obliged to operate with due care and skill.

I'm not saying you can shirk your contract obligations, the terms and conditions are clear, but I think in this case there may be a share of blame to apportion to both. Because the Fencing contractor was breaking ground you could reasonably argue that they either need to dial before they dig or ensure the home owner has.

I would go back to the fencing contractor in writing and lay this out to them. A 50/50 split cost would probably be fair and reasonable. If that doesn't work pursue it through small claims court.

 

[Vinricky]

Thank you so much for your reply Lance. I appreciate your help. Seems a bit unfair that I should be held accountable for unprofessionalism on the fencers part but I guess that is the nature of the beast.

Here's hoping that they extend some common courtesy and put their insurance cover to good use.

Once again, thank you.

 

[Lance]

Hi Vinny,

You could always ask for all of the money because of their negligence and failure to ensure 'dial before you dig' was conducted. If they say no, you can take them to small claims and if you need to then settle for 50/50.

It's your call, I just think they do have some cover with their terms and conditions which you may have signed.

 

[Vinricky]

Hi Vinny,
You could always ask for all of the money because of their negligence and failure to ensure 'dial before you dig' was conducted. If they say no, you can take them to small claims and if you need to then settle for 50/50. Its your call, I just think they do have some cover with their terms and conditions which you may have signed.

Thank you Lance. None of the parties signed any contracts if that makes any difference. The fencing company is ignoring my phone calls and messages. But that is ok as I have not paid them yet (they were meant to come and finish my side gate as well, which they have not as yet, at which point I would have normally paid them) so the ball is in their court as to how they want to play this.

I really appreciate you help in the matter. Have a nice day.