Axa refusing to act

[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.

 

[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

[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.

[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.

[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.

 

[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?

[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.

 

[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

[BankFodder]

What was the damage that they say is asbestos-related? In what way is the damage related to asbestos? Have you actually looked at their small print to confirm what they have said?

Who informed you that it was new for old? Did you get this in writing? Once again, have you checked the Axa terms and conditions?

[BankFodder]

I just look back over the threaded and I now see that you are talking about the gardeners insurance policy and not your own.

Frankly, for the amount of money that you are being offered – and the. Amount of value you seem to have lost including the shed roof, I would simply get a couple of reliable estimates for the entire damage and then prepare to sue the gardener.
It's up to them if they want to go through their insurance or not. It has nothing to do with you

[BankFodder]

You would normally always reject the first offer and insist on a better figure but also, you would need to demonstrate why they have underestimated the value.

As you are preparing to sue the gardener, it seems to me that you want to get everything ready and then tell Axa that as they won't pay the proper value, you will be suing their client and you expect that their client will then require the Axa indemnify him for his loss including court fees.

In terms of suing the gardener, you should certainly sue him for absolutely everything. There is no reason at all why you should be a single penny out-of-pocket