The Auswine Forum

I visited my professional offsite wine storage place the other day. It is a space approx. 1.5m by 2m. I noticed in the back right hand corner many of the boxes were sagging. On removal of the boxes in front of them I noticed one entire stack of boxes was soaked with, I guess, 5-10 litres of water. I previously noticed some sagging of the boxes 3-4 months ago but thought it was a sagging carton due to the weight of the others. It never occurred to me it was major water damage.
As you can see from the photos, many of the damaged labels render the bottles almost unsaleable. I was never planning to sell them but the leakage has taken away that option. This didn't occur because of external rain/flooding, but rather a leak in the air-conditioning. Part of the pipes pass thru the top of the locker. I am the only person this happened to.

So my question to you all is what sort of compensation should I be looking for? I am thinking a period of free rental rather than a cash compensation. The value of many of the 20 or so boxes of wines has diminished considerably. I didn't have insurance, but this a malfunction of the storage facility's own air conditioning.

Hacker, perhaps you could pay a small fee to a wine auctioneer such as Mark W to estimate the loss of value?

Has the storage place agreed to pay some form of damages? Many of these storage agreements will try and waive liability even for the operators own negligence, but be aware these sorts of terms are (often) superseded by consumer protection law (provided that the agreement can properly be classified as the provision of services to a consumer- e.g. it does not define you as a "professional wine investor").

sjw_11 wrote:Hacker, perhaps you could pay a small fee to a wine auctioneer such as Mark W to estimate the loss of value?
Has the storage place agreed to pay some form of damages?

I haven't approached them about compensation. They were helpful by giving me enough boxes to repack the damaged wine. I would only approach a professional valuer if there a dispute on compensation. I suppose I am looking for a year free on a locker which is +/- $1200

You'd need to look at your contract to determine exactly where you stand. Compensation may be limited to the loss of property and or damage to it. It has been a while since I studied law and it would be interesting to see how the law would define damage here. First of all you would need to be able to quantify your loss. Since the contents of the bottles are not likely to be damaged and only the exterior partially so, compensation may possibly be quite minimal and not worth the stress. Any claim may be limited to the difference between the resale value of wine with good labels and those with damaged labels.

Certainly you would have a right to demand a new storage area. If this storage facility is a "professional or dedicated" facility it is highly likely that they have already been to solicitors when contracts where drawn up which would include theft and damage. If you weren't going to sell them, your loss really isn't much more than aesthetic.

You'd almost certainly have to go to court to drag any compo out of them, so I would suggest talking to them about compensation first and do your best to lead them to making an offer rather than you making a demand.

One other thing. If the facility is dedicated to wine, there may be a section of your contract which deals with humidity and temperature. Clearly you have an argument with regards to humidity at the least. Check your contract and see what it says with regards to damage, loss, temperature and humidity.

I think you would be hard pressed to get a whole years worth of storage.
I think they may say bad luck, but we'll give you a month as a gesture of good faith.
However, you could get them up to 3 months if you are lucky.
Best of luck let us know how you go.

I would have thought it would be a basic Duty of Care given they are a 'professional' storage business. Irrespective of whether you are keeping them for investment purposes or not, you have suffered loss. Like suggested I'd speak to an Auction house to get an appraisal for loss of value on the secondary market.

I wouldn't pay much more than half the value of the wines (which are very expensive) given their condition. As a random buyer not knowing the backstory, I'd be hard pressed to believe the extent of the damage was caused by just water dripping/dribbling on to them. They look like they were fully submerged in a pool of water. So I'd be saying the Auction house is telling porkies and would only pay half the value a la Langtons water damage sale.

If no joy, name and shame. Although going on previous comments you've made about 'going to x' to check my wines I know who it is.

I'd be very careful about naming and shaming. I'm not saying do or don't just consider that a person or business entity with (from memory) less than 15 employees can sue you for defamation even if the comments are true. Alternatively they can sue for "pure economic loss", it's a place you really don't need to go. Talk to them first, after you've read the contract.

I agree talk to them
They should be helpful with 'free' rent

RobK wrote:I'd be very careful about naming and shaming. I'm not saying do or don't just consider that a person or business entity with (from memory) less than 15 employees can sue you for defamation even if the comments are true. Alternatively they can sue for "pure economic loss", it's a place you really don't need to go. Talk to them first, after you've read the contract.

I don't think that would be right Rob. Otherwise everyone who left a negative trip adviser comment on a B&B could be sued. As an aside, all actions for defamation by a business would inherently be for pure economic loss- a company, being inanimate, cannot claim for physical or mental injury!

There is a codified universal defamation law , e.g. NSW Defamation Act 2005 which specifically excludes corporations from being defamed unless they are smaller than 10 or more employees http://www.austlii.edu.au/au/legis/nsw/ ... /da200599/.

However that Act leaves alone the defences available from the general i.e. case law to defamation, one of which has always been truth (in most jurisdictions).
The Act also introduces a further expansion of this - the awkwardly written defence of "Contextual truth" - which effectively expands the defence to include imputations which are "substantially true".

I also doubt an attempt to quantify the damages flowing from effectively a bad review would produce a number in excess of the lawyer fees and court costs needed to bring the claim.

I agree with Sam...Truth has always been a justification...

But really, I think it just means Hacker needs to open those bottles, they're ruined...Offline soon?

sjw_11 wrote:

RobK wrote:I'd be very careful about naming and shaming. I'm not saying do or don't just consider that a person or business entity with (from memory) less than 15 employees can sue you for defamation even if the comments are true. Alternatively they can sue for "pure economic loss", it's a place you really don't need to go. Talk to them first, after you've read the contract.

I don't think that would be right Rob. Otherwise everyone who left a negative trip adviser comment on a B&B could be sued. As an aside, all actions for defamation by a business would inherently be for pure economic loss- a company, being inanimate, cannot claim for physical or mental injury!

There is a codified universal defamation law , e.g. NSW Defamation Act 2005 which specifically excludes corporations from being defamed unless they are smaller than 10 or more employees http://www.austlii.edu.au/au/legis/nsw/ ... /da200599/.

However that Act leaves alone the defences available from the general i.e. case law to defamation, one of which has always been truth (in most jurisdictions).
The Act also introduces a further expansion of this - the awkwardly written defence of "Contextual truth" - which effectively expands the defence to include imputations which are "substantially true".

I also doubt an attempt to quantify the damages flowing from effectively a bad review would produce a number in excess of the lawyer fees and court costs needed to bring the claim.

The reason I would urge caution is that for those wishing to go down this road is that you need to express opinion rather than fact. (that's my interpretation). Always be careful with the wording. I avoid commentary like the plague. I'll bet Trip Advisor pay a fortune for insurance.

Honest opinion would be a separate defense explicitly codified under the Defamation Acts, ref s31 of the link above.

An opinion which may or may not be true is only a defense of it relates to a "matter of public interest".

"31 Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was an expression of opinion of the defendant rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and
(c) the opinion is based on proper material."

Public interest is not defined, and is a very nebulous concept. You can argue there is a public interest in allowing service users to offer an opinion to others, thus helping the wheels of commerce to turn and promoting quality businesses.

Truth versus opinion
The typical problem people have using the justification or truth defence to a purported defamatory statement of fact is that you have to prove your statement was true (rather than your accuser proving it is false). It is normally easier to show that a statement is painful ("they said my business is crap") than to prove it is true ("my steak was over cooked ... but I ate the steak so its just my say-so").

So yes, if you left a bad TripAdvisor review (and I mean really bad- e.g. This hotel was on fire) then I would suggest you take a picture to prove it. If you post a review "This wine cellar ruined my wine because of a leaky air conditioner" with attached pictures... I think that's pretty rock solid. It is a factual statement, borne out by the evidence.

But again, if you really imagine that small businesses are going around suing everyone for their opinion, you are watching too much American TV.

A lawyer for the day is going to cost more than a year's lease on the wine cellar... If there is any grain of truth in such an accusation, you would surely prefer to simply settle the matter with the individual on a basis requiring them to keep it confidential if you are so worried about bad reviews?

In the twitter generation, the backlash for suing a small individual who had a negative experience would probably be worse than the initial bad publicity from the negative review!

[This post does not constitute legal advice and is provided for general information only. Readers should seek their own professional advice before relying on any of these statements.]

Wow, thanks Sam and everyone for your opinions and guidance in this. I want to settle amicably and fairly, as I wish to continue to use their services and it is in everyone's interests to move on from this.
Will let you all know how this plays out.

I am pleased to say that rather than name and shame, I can name and praise Kennards Wine Storage for being understanding of the situation and agreeing to more or less what I asked for.

I suppose that insurance of the wine would have been an easier solution for me, so I guess this may be the way forward. The Kennards T&C's do technically mean that they weren't responsible for any damage, but they showed the "spirit of goodwill" (to quote Kennards) which is refreshing.

Terrific.