Axa refusing to act

[Argyll]

In October last year a Gardener was on top of the roof of my council lockup trimming someone's hedge. He fell through the roof causing damage not only to the roof but my property as some of my property had to be removed by a specialist asbestos cleaning company appointed by my local Council. The damage to my property amounted to £4825.20. 

 

I've been in touch with Axa claims dept who have been very reluctant to communicate with me. I have repeatedly been ignored by email and I've had to contact them by phone several times. They asked for a list of the damages which I provided. They then asked for web links to replacements which I also provided.

 

A few weeks ago I emailed them for a response otherwise I would contact their CEO. They replied a few weeks ago stating:

 

"Unfortunately, there is no policy cover for these damaged items and you will need to claim these from our Insured directly. I have made them aware of this decision."

 

If this was the case why did they ask for a list of damages? I should add at this juncture they already settled with the council regarding damage to the roof. 

 

I emailed them and requested a copy of their complaints procedure which they've once again ignored. 

 

I contacted the Financial Ombudsman who won't get involved because I'm not the customer which really disappointed me. 

 

If I take the Gardner to court I'll only get the used value of the goods so I'm reluctant to do that. I think the best course of action is to take Axa to court so I get new for old. 

 

I think Axa are chancing it as they know I'm on my own and hoping I drop it. 

I'd appreciate opinions. 

 

By the way I'm in Scotland.

 

[BankFodder]

Why don't you list out the items of yours which were damaged and list out the items which are covered by the policy – or their exclusions.

 

[Argyll]

I should have made it more clear that I'm claiming from the Gardeners business policy not mine.

I sent them a list. I don't know what their policy exclusions are as I'm not the policy holder. Plus the fact they're not responding to my requests.

Edited May 13, 2021 by Argyll

[BankFodder]

I don't understand why you think you should be entitled to claim new for old from 1/3 party insurer.

On the basis that we are talking about negligence, you would only be entitled to be put back into the position that you would have been had the negligent act not occurred. This means that you would be entitled to obtain the replacement value of the damaged items.

What kind of items are we talking about here?

What kind of value are we talking about here

[Ethel Street]

AXA have no obligation to explain anything to you about their policy cover because you are a third party and have no contractual relationship with them.  Your claim is against the gardener. If AXA's policy had insured the gardener then AXA, for practical reasons, would have dealt with you direct. But for whatever reason they have decided that their policy will not insure the gardener against your claim.

 

So AXA are correct that you will need to pursue the gardener directly for the damage to your property and he will have to pay it from his own pocket. If he disagrees then you would have to start a small claims court action and a judge would decide if the gardener was liable.

 

It's normal for insurers to ask for details of the damge you are claiming for before they decide whether it's covered by their policy. This hasn't disadvantaged you because you will need that information to make a claim directly against the gardener.

 

It's not correct that you would get new for old if AXA had agreed to pay the claim. As a third party claimant you'd get the same whether AXA paid it or the gardener pays direct - the used value.

 

Is the property that was in the lockup insured by you under your own household policy? Have you put in a claim for to your insurers? If it's covered by your policy then it's quite likely you would get paid 'new for old' value.

 

How to make a complaint to AXA is in the "Making a Complaint" section on this page ===>  Website Terms & Conditions | AXA Insurance  However, I'm pretty sure they'll just reply that they can only deal with complaints from customers and you aren't one. TBH I'm not sure what your complaint is? Haven't AXA simply decided their policy doesn't cover the gardener for this so you will have to sue the gardener direct? Only the gardener can challenge that and make complaints to AXA about it.

[Argyll]

Ok thanks for clearing that up Ethel.

The damage caused was around £4800.

The only reason I mentioned new for old is because an insurance specialist said it's always best to pursue it through his insurers rather than the small claims as I'd get new for old. 

Anyway it looks like I'll need to take him to court.

It may be a tricky one as he has his own gardening company as well as his dad. On the day he fell through the roof I was told it was his dads vans that were parked up not the sons. So I'm not sure if he was working for his own company or as an employee of his dads. I wrote to both by recorded post a few months ago but neither responded.

Can I make a claim a claim against both in a single action?

[Ethel Street]

8 minutes ago, Argyll said:

It may be a tricky one as he has his own gardening company as well as his dad. On the day he fell through the roof I was told it was his dads vans that were parked up not the sons. So I'm not sure if he was working for his own company or as an employee of his dads. I wrote to both by recorded post a few months ago but neither responded.

Can I make a claim a claim against both in a single action?

 

I'll let one of the small claims court experts answer that.  I'd have thought that if you know the name and address of the gardener who was on the roof and actually caused the damage issue proceedings against them. They can always ask the court to add or substitute other defendants. Wait and see what others advise.

 

Bear in mind that you are going to have to demonstrate that the gardener is legally liable to you for the damage caused, most likely that the gardener was negligent. Did you see it happen? Do you have witnesses or evidence about how the gardener came to fall through the roof?

[Argyll]

Doing a bit of detective work I managed to track down the father who told me the whole story of how his son had fallen through the roof. The son then met me a few days later at the lockup and explained to me what happened. Both conversations were recorded on my phone

[BankFodder]

I've suggested twice that you list up the items which were damaged and costs and so far you haven't done that. I'm not sure why not.

In terms of the liability of the gardener, it seems to me that there is a (negligence) duty of care owed by the person who was on your roof and I don't think there is any problem in establishing that.
The fact that you are in Scotland doesn't pose any special difficulties – although in terms of the court procedure for this, this is something that I'm not especially clear about and frankly I think this website is a little weak on Scottish procedure.

However, we will help you and it seems to me that your action is definitely against the gardener/person who was on your roof.

In the event that you won't able to enforce the judgement against that person then I don't think they would be much difficulty in enforcing the judgement against the insurer because under the Contracts (Rights of Third Parties) Act 1999 you enjoy third-party contractual rights unless they are expressly excluded by the insurance contract – and that is unlikely to be the case here.

I think the first thing to do would be to establish the liability of the gardener. Once the gardener realises that you are going to be pushing ahead with this claim, I would imagine that they would refer to their insurer pretty quickly.
Of course that won't necessarily solve matters. You will find that dealing with the insurer is a slow business and they will try to reduce the size your claim – but we will help you deal with them as well. No point in standing any nonsense from an insurance company.

[Argyll]

"I've suggested twice that you list up the items which were damaged and costs and so far you haven't done that. I'm not sure why not."

Cheers I've no problem posting up the list of damages but curious why this is relevant? 

[BankFodder]

If you were paying a solicitor up to £300 an hour and they asked you that question I'm certain that you would provide the information immediately without mucking around – apart from anything else to save yourself money.

We are doing it for free but the value of the help we are giving you is the same and I expect that the quality of the advice we give is at least as good and probably better then you would receive from a professional solicitor.

In order to give you some advice in a way that takes you forward and at the same time protects your interests, we would prefer to have as much information as possible and that includes understanding the extent of the damage for which you would like to claim.

You have already started out suggesting that some of the items or property which was damaged were not new but yet you wanted to have new for old compensation. It's already been made clear by myself and by my site team colleague @Ethel Street that this probably wouldn't be possible that we would now like to explore further the nature of the items which were damaged and the recoverable values of those items.
If you'd prefer not to provide us with that information then maybe you could just come out and say so. I'm not really sure why it should become an issue.

[Argyll]

It's not an issue but I'm just mindful of giving out too much information in case the Gardener or his friends are on this forum. It's probably a long shot but you never know. Thats the only reason mate. 

Anyway here's the list:

It's not an issue but I'm just mindful of giving out too much information in case the Gardener or his friends are on this forum. It's probably a long shot but you never know. Thats the only reason mate. 

Anyway here's the list:

 

4 person tent

Enigma wheelchair

Weider multi gym

3 Bike Rear Mounted Bike Rack

Argos fold away bed

Windscreen cover

Heavy duty tarpaulin 24ftx18ft

Singer magic 4 trouser press

19th Century Oak Banded Domed Top Storage Travel Trunk / Chest (water damaged)

30 x sheep photo frames (water damaged)

25 Philips strip light bulbs

26 CA Cables

Berghaus Crusader 3 Rucksack

Slow Cooker

Barbour Jacket Many of the items had cloth which couldn't be cleaned by the asbestos removal company. For example the multi gym had foam handles. The lockup roof was exposed to the elements for a couple of weeks before it was repaired by the local councils roofing contractor. Hence some of the stuff was water damaged.  The 26 CA cables are specialised cables that cannot be purchases second hand. The cost of them are £1700.

Edited May 13, 2021 by Argyll

[BankFodder]

We don't do secret squirrel on this forum. As long as you are straight dealing and honest then there is never a disadvantage to publishing anything.

 

[Argyll]

I'm always straight mate. I'm just hoping the Gardener lies in court so I can show the recording but I guess I'd have to reveal that anyway before the case is heard. 

[BankFodder]

Thank you for the list.
You haven't given the values that I think this is important. Apart from anything else, whether you bring a claim in the Scottish County Court or you end up proceeding against the insurance company then you will have to justify the values and you can be certain that they will be open to scrutiny.

For instance, I notice that in your list there appears to be a fairly old piece of travel luggage – which may have a collectors value, but you say is water damaged. What is the value of that do you say? How have you arrived at that value?

[Argyll]

4 person tent £532.00 Enigma wheelchair £185.99 Weider multi gym £399.00 3 Bike Rear Mounted Bike Rack £90.00 Argos fold away bed £100.00 Windscreen cover £30.29 Heavy duty tarpaulin 24ftx18ft £25.00 Singer magic 4 trouser press £230.00 19th Century Oak Banded Domed Top Storage Travel Trunk / Chest (water damaged) £337.50 30 x sheep photo frames (water damaged) £150.00 25 Philips strip light bulbs £366.00 26 CA Cables £1,821 Berghaus Crusader 3 Rucksack £250.00 Slow Cooker £68.92 Barbour Jacket £240.00

 

This is the replacements I found on the internet at the request of Axa insurance. 

Edited May 13, 2021 by Argyll

[Argyll]

I found a similar trunk on the internet but really to me it has great sentimental value as it was my Great Grandfathers. It's been in our family for years. 

I've written to several antique restorers but they didn't reply to me with a price for repair.

 

[BankFodder]

Thank you for this additional information.

As I've already suggested, there will be no problem establishing liability. However establishing liability is only part of the problem. You will also have to do produce values which can be confirmed by evidence.

The costings which you have listed above seem to be very precise – for instance a slow cooker at £68.92. A wheelchair at £185.99 p. These kinds of prices are the sort of thing that I would expect new items to cost.
How might you have produced evaluations for the second hand items to nearest fractions of a £ rather than to the nearest £ or in fact to the nearest £5.

 

[Argyll]

Axa asked me to provide website links for replacements. Those are those prices. 

[BankFodder]

Thank you – but are they second-hand replacements or new replacements?

[BankFodder]

I think it's getting quite difficult to understand the valuations that you are placing on these items.

So I think the overall picture is this.

The insurer has said that they don't cover those damaged items. That is probably correct in terms of damage which is caused directly to them by the gardener. On the other hand, it may well be that the insurer does cover that kind of damage when the damage is caused as a result of an insurable risk.
In other words, although if the gardener damages your wheelchair directly they may not be any liability, I can imagine that causing damage to a roof by falling through it would be an insurable risk and if as a result of the roof falling in items inside the garage were damaged, then they would also be covered.

It seems however though that at the moment the gardener is not prepared to start an insurance claim for you. I can imagine that this is because they are hoping that you will go away – as you have suggested above.

I think that you will have to do bring an action in negligence against the gardener and they should be fairly straightforward. You will have to prove that they owed you a duty of care – and clearly by walking on your roof they did owe you a duty.
You will have to show that they breached the duty and clearly, by walking on your roof and then falling through would amount to a breach of the duty. No prudent person would go around walking on roofs without taking considerable care to avoid exactly this kind of accident.
Then you will have to prove that they cause damage as a result of all of this – and this is where your claim is going to come under scrutiny.

You are probably going to have to allow the damaged items to be inspected by a representative of the gardener – and maybe eventually their insurers who will want to understand what the condition of them was before the accident happened and also understand the extent to which they are damage.
They will want to understand what the value of the items was before the accident so that they understand what their liability is for replacing those items.
They will be looking at the age and the condition of the items.

This is all going to have to be done in the Scottish courts and as I have said this is not an area in which I have particular experience – but I hope somebody else will come along and who will help us.
I don't know why but over the years we haven't focused very much on Scottish procedure.

The law is clear – it's exactly the same whether it is England and Wales or Scotland or Northern Ireland but the procedure for handling it will be slightly different.

I believe that the small claims rules apply in Scotland – but only for claims up to about £5000. I don't know if this has changed recently.

In England and Wales the small claims limit is £10,000.

So to summarise, you have an easy win here but you are going to have difficulty establishing the replacement value of the items which you say were damaged
 

https://www.scotcourts.gov.uk/taking-action/simple-procedure

 

https://www.scotcourts.gov.uk/taking-action/small-claims

[BankFodder]

In England and Wales you can start an action online to using the County Court moneyclaim service. I think in Scotland it requires a paper issue

[dx100uk]

no.3.

 

simple procedure (scotcourts.gov.uk)

[unclebulgaria67]

Any claim will be based on value at the time of loss and not the replacement value. Gardeners policy would be liability cover and therefore on an indemnity basis only.

 

You would need to explain and provide evidence of the gardeners accident causing the items to be damaged beyond economical repair.

 

Have you checked the Home Insurance for your flat to see whether it covers Contents in this garage lockup ?  Your own Home Insurance is probably on a new for old replacement basis for many items.

 

 

[Manxman in exile]

What insurance policy are you trying to claim from and how do you know who to claim from?

 

Assuming it's the gardener's public liability insurance*, I'd have to say I'm rather surprised that his insurers are saying that the damage to your property is not covered.  Surely that's the whole point of the "public" bit in public liability?

 

Just sue the gardener and let him deal with his insurers*.

 

Anybody walking or working on an asbestos roof is negligent to begin with.  I assume the council has warning notices up like "Danger - Asbestos roof.  Fragile".

 

*Of course I am also assuming he has PL insurance and that is what you were trying to claim from?