29 June 2011
Tristan Hallam discusses: our duty to consider others, does consideration really come into it!?
Picture the scenario. I go into a building with a communal area, a large block of flats where I go and see a friend, share a glass of wine and a good meal and on leaving I walk down the stairs rather than taking the lift. As I get towards the bottom of the stairs I see that the light bulb is not working. The last flight of stairs is in almost complete darkness. I therefore edge my way slowly down the stairs holding onto the bannister. As I am 5 steps away from the bottom of this flight of steps, the bannister brakes for no reason causing me to fall the last few steps to the ground where I sustain a fracture to my wrist. Having attended a hospital and nursing my wounds, I decide that I should complain and I write to the freehold owner directly. There is a plaque in the building advising of the management company. I also write direct to the management company. I do not receive a response from either the freeholder or the management company. I write again, this time complaining more strongly and having complained now on two separate occasions I decide to go and see a solicitor who takes instructions from me and a letter of claim is served. No reply is received to the letter of claim. This is chased on two further occasions and in total some 3 months after my accident, 5 letters have been sent, 2 by me and 3 by my solicitors including the comprehensive letter of claim which my solicitor is obliged to send setting out the full circumstances of the accident, brief details of the injuries sustained, allegations and details of funding as well as my personal information so that the claim can be registered with the Compensation Recovery Unit of the Department for Work and Pensions (more of this later).
My solicitor advises me at this stage that he has not received a response from either the management company or the freeholder and advises me that the only way that he is likely to obtain a response from either is by issuing and serving legal proceedings. If no reply is obtained thereafter I can apply to the Court for Judgment in Default since the other side are obliged to respond and file a Defence within a certain time period after service of proceedings.
At that stage once Judgment in Default has been granted, I can then apply to the Court for a hearing date to assess my damages and once this has been obtained and the Court has awarded me damages based upon the evidence I put before the Court (assuming that the other side have still not responded and therefore my application for an assessment hearing is not in any way contested or attended).
I then go along with my Order for damages awarding me say, £8,000 and try and enforce my Judgment.One would hope that at some stage, most certainly after proceedings have been issued and served, appropriate insurers would then come out of the woodwork.
The freeholder would then notify me of the appropriate insurance company that covers the common parts of the freehold property that he owns or indeed the management company who should hold details of the insurance present at that time, will notify me of the insurers or brokers and pass on my correspondence to the insurers or brokers to respond to. By that stage of course we are some months down the line.
The reason that I have raised this issue is that it is perfectly possible and by all means not unheard of, for the insurers at that stage to make appropriate enquiries, to accept that they may well be at risk in that the accident occurred as a result of the negligence of the freeholder in not placing a light bulb which has been not working for the best part of 2 weeks despite him having been notified of this fact and also of failing to repair a bannister of which he was again on notice and which has been faulty for the best part of 6 weeks prior to the accident.
The insurers then decide however, to take a policy point. By this I mean that they look very carefully at their policy which, without doubt, will include a requirement on the insured (the freehold owner or the management company if it is a block policy) to notify his insurers of any claims as brought.
The insurers continue to take a point and say that since their insured did not notify them within a reasonable period of time, that a claim was being brought and certainly did not notify them once legal proceedings had been issued and served, that they will refuse to indemnify. They are entitled to take such points. The policy is a contractual agreement. I cannot sue them (again more of later) since I am not a party to the contract.
Although I can complain and suggest to the freehold owner that he sue his insurers for breach of contract, there is no guarantee that he will be successful in doing so and the Judgment therefore I have awarded me £8,000.00 in compensation, may not be worth the paper that it is written on.
I may try and enforce Judgment direct against the freehold owner, obtain a Charging Order against him etc; however this is also not guaranteed to succeed but may only result in my paying more in costs. The moral of the story therefore is that if one has an accident (that does not involve a road traffic accident where finding insurers is much easier via the MIDIS database and where the insurers are obliged to indemnify their insured even if they are not notified of the accident since this is a compulsory risk and can be sued directly), is to try and obtain details of the appropriate insurers as soon as possible.
If therefore you have an accident where the insured is available such as in a shop (rest assured that large shops such as John Lewis, Tescos etc will have insurance in place) do not hesitate to ask to see the appropriate policy of insurance and to make a note of appropriate details, the name of the insurer and the appropriate policy number. Check if you can in addition to ensure that the policy of insurance that has been shown to you is valid in that it has a commencement date and an end date which fall either side of your accident date.
The point that I really raise is whilst we all have a duty which we owe to each other, sometimes the duty does not always extend to being reasonable and to acting correctly. Although matters can be overlooked on occasions, in my scenario above it was simply a case that the freehold owner not bothering to respond which placed me in difficulties.
This brings to mind an article that I read recently about the Government’s suggestion that it might provide each of us on either the Electoral Roll or on the National Insurance Register, with shares in two banks which were nationalised after the crash a few years ago, namely Royal Bank of Scotland and Lloyds TSB. The idea is that when the shares in both banks reach a certain level, we would be entitled to sell or deal in the shares that we have been given. We are effectively being given a slice of the banks that we bailed out as tax payers when the crash first occurred.
It is right to say that without the Government and therefore the tax payer via the Treasury having bailed out the banks, that they would no longer exist in their current form, that we might have been poorer in that a financial meltdown would have occurred, however it should not be forgotten that the reason that the financial crisis occurred in the first place was due to the action of the banks, or at least if some stories are to be believed, a very small number of bank employees.
We have all felt aggrieved by the financial position the world is in. Petrol prices have increased enormously, food prices have increased as a result, everything is more expensive and pay rises have either not materialised or not followed suit. We have yet to see the crash that will occur when benefits, including child benefit are cut over the course of the next few years. I for one fear public unrest.
However leaving that issue to one side, it will go far in appeasing the public in general to see that we are given a slice of the banks who have continued to make massive profits since the crash and paid large bonuses. And in particular, to see that the banks are quite properly upset and troubled by the suggested position.
I hope that this policy is followed through. Perhaps when the banks begin to lobby hard, it may not.
Tristan Hallam is a Principal Lawyer in Personal Injury in the London office of Slater and Gordon Lawyers.
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