Who is the defendant in this case

[newbieatlaw]

I have a case that is increasingly looking like it will go to the small claims court. My local council were mowing the grass in a public open space adjacent to my property. Debris from the mower smashed a car window and house window. The car was parked on the driveway.

The council have passed the claim to their insurer (Zurich) to investigate liability. They are denying liability as they say there was not negligence. I have done a lot of research and believe I can prove negligence. But my question is specifically, if I were to start legal proceedings, would I issue them against the council or Zurich. It is my belief that I would issue them to the council as they were the ones who caused the damage. Some points which may have a bearing are:
- Zurich appear to not just be the insurer but also handling the claims process as the council do not have the capacity/expertise.
- are there different rules for vehicles on public land. i.e. does this count as a RTC and if so does that have any bearing on this?

Zurich have told me that I should issue proceedings against them, which I believe is false. I have read not to fall into the trap of issuing against the insurer and wonder if that is what is going on.

As part of this post I am not going to go into the details of negligence as it doesn't relate to my specific question, please focus on who the defendant is. I may start a separate post another time for any queries I may have about the claim.

[Pezza54]

Yes your claim should be against the council, not the insurance company nor the employee.
Have you checked your car and building insurance policies? You may be covered to get repair work done and then just claim for any excess charge.
You might have legal expenses insurance included with your policy.

[newbieatlaw]

Thanks Pezza, I believe I would have been covered, but as it was two separate policies and two separate excesses, there would have still been a considerable initial outlay and also a likely increase in premiums of both policies. I was perhaps naïve at the time that the claim would be straightforward and liability not disputed. Now understanding negligence from a legal sense (through research) and knowing I am dealing with a council, I can foresee that they would try to dispute it.

The incident was 5 months ago so I have already paid out and had the repairs carried out. The insurer took over 4 months to even speak to me.

I'm not afraid of the fight, and I feel I have good evidence. I know I will need to do a lot more research to firm up what goes into the Particulars of Claim / Court Bundle as the onus is on me to prove negligence, I need to be careful to demonstrate the duty of care existed, that it was breached and that there was causation (directly linking the breach). I'm sure I will post other questions regarding small claims in the coming weeks.

[R0b]

I agree, the defendant will be the council, not Zurich although it may be that Zurich were suggesting that service of legal proceedings should be directed to them rather than the council but that's not the same as them being the defendant in the matter.

There's been a few reported cases like this before in the media where individuals have taken councils to court and ultimately lost since it was ruled as an accident and not negligence. I suspect this will come down to whether you really can prove they were negligent based on your evidence but bear in mind, what you might think is good evidence could be much less useful when it comes to applying the law.

[newbieatlaw]

Thanks Rob. I appreciate your point regarding reported cases. I was sent one of these by Zurich to scare me off. In my particular case, a ride on mower was used and the operator reversed onto our pebble driveway. This is shown in a security camera image. In the image the blades are at least partially on the pebble driveway. I have another image one second later in which my lights are illuminated on the car as the alarm has activated. At this point the mower is further forward on the grass. I am later seen with the operator after flagging him down. He also exchanged details. The negligence is what is in dispute. I believe my strongest claim to breach of duty is that the operator reversed onto the driveway. By reversing, he could not be sure if the blades were over the pebbles (as the blades are at the front, by reversing he would have had to estimate the position in relation to pebbles). A "reasonable person" would have approached the edge of the driveway in a forwards direction so they could see the proximity of the blades to the pebbles. We are not dealing with an individual hidden pebble but a pebble driveway that borders without any curb or change in height. The image just before and just after (one second apart) with and without the alarm activated should help with the causation. I think I have additional angles for breach of duty as the operators manual says to do a "thorough inspection". They dispute based on effort not being reasonable but I feel that a thorough inspection in high risk areas would be reasonable (i.e. not checking every square inch of a field, just edging with pebble driveways for example). Also, I have had it suggested by a groundsman that it was the wrong machine for the border, more control over projectiles with a strimmer. I have also requested their Risk Assessments for the machine and Site as this may help if they didn't follow procedure.

[newbieatlaw]

Regarding what Zurich said, I challenged it and they said

"In the event you issue proceedings, these MUST be brought against Zurich and sent to our nominated panel below
DAC Beachcroft (Sovereign House, Imperial Way, Newport, NP10 8UH) "

[R0b]

Regarding what Zurich said, I challenged it and they said

"In the event you issue proceedings, these MUST be brought against Zurich and sent to our nominated panel below
DAC Beachcroft (Sovereign House, Imperial Way, Newport, NP10 8UH) "

I would ask them to explain in detail why Zurich must be the named defendant in legal proceedings and not the council. As far as you're concerned, the council is the defendant party to these proceedings on the basis that you are alleging their employee has been negligent. Zurich is simply a party acting on behalf of the council.

See what kind of response you get from that and if they continue to insist it should be Zurich, then you should ask for their full company name and details so you can properly issue proceedings. I would also add to the response that you will proceed on the basis that Zurich will be the defending party but, if they then claim that they are not a party to proceedings and you are required to substitute them with the council, you will be seeking a wasted costs order on an indemnity basis - that should protect your position to some extent but it sounds like an odd response to me. You could probably also explain that as an introductory paragraph to your particulars of claim to set the scene to reserve your position.

Also from an evidence point of view, you may want to make a FOI request on whether they have a policy on grass cutting outside generally that is outside risk assessments? Also be interesting to make an FOI on the number of received requests for compensation over the last 3 or 5 years caused by damage due to grass cutting. For example, if that number of compensation claims are high, that might suggest that they should revisit or revise their policy/risk assessments, if that makes sense.

[newbieatlaw]

Thanks for your advice. I will definitely query them again and ask them to explain why it is them and not the council.

I had wondered about other FoIs. Its a good point about general grass cutting policies. I wondered about some kind of decision flow that tells them what machine to use. Also wondered about number of past incidents but hadn't landed on a reason why it would help me. But high number = risk assessment inadequate is a good one.

[newbieatlaw]

I had a response on why I should take the insurer to court instead of the council. The insurer said:

"
Please refer to The European Communities (Rights against Insurers) Regulations 2002 which states;

"the entitled party may, without prejudice to his right to issue proceedings against the insured person, issue proceedings against the insurer which issued the policy of insurance relating to the insured vehicle, and that insurer shall be directly liable to the entitled party to the extent that he is liable to the insured person."

As we are dealing with the matter on behalf of our client, we would request that this process is followed and adhered in such times.
"

My interpretation is that it is my right to take action against the insurer but that I am also in my right to take action against the council directly. It doesn't seem that I must do as they say. Thoughts?

Another question I have, is does this count as a RTC? The incident happened on a green space rather than a road. Whilst the ride on mower was a road vehicle (had a number plate), does this count as a road accident? It seems like the EC regulation above is for RTC specifically and I don't want to fall into the trap of it not being relevant.

I also fear that if I were to do as they say and claim against the insurer I then have to prove further details such as the operator of the mower was insured by the insurer etc, rather than focusing on my specific claim of liability.

[R0b]

I have no knowledge about those Regulations but I have done a little research into it and I would be inclined to agree with you in that it is not a legal requirement to issue a claim against insurer. Those regulations enabled claimants to have a direct cause of action against insurers instead of the insured, reasons for example, might be if the insured has passed away due to a road traffic accident.

I believe Regulation 3 of those Regulations* is relevant which says:

3. Right of Action

(1) Paragraph (2) of this regulation applies where an entitled party has a cause of action against an insured person in tort or (as the case may be) delict, and that cause of action arises out of an accident.

(2) Where this paragraph applies, the entitled party may, without prejudice to his right to issue proceedings against the insured person, issue proceedings against the insurer which issued the policy of insurance relating to the insured vehicle, and that insurer shall be directly liable to the entitled party to the extent that he is liable to the insured person.

An "accident" for the purposes of the above regulation is defined as an accident on a road or other public place in the United Kingdom caused by, or arising out of, the use of any insured vehicle

Note my emphasis on the above quote which refers to the entitled party may issue proceedings against the insurer and that is without prejudice to the party's right to issue proceedings against the insured. So to answer your question, you are correct in your interpretation that you may do so, but you are not mandated. What the insurer has said to you that you must issue proceedings against them is a misrepresentation of the law, and I would be minded to point that out to them in your reply.

I would urge caution as to whether you choose to issue your claim against the insurer because I also note the regulation says that insurer shall be directly liable to the entitled party to the extent that he is liable to the insured person. What this could mean in practice is that if the council has hit its limit of claims or payout under the policy and the insurer is not required to pay out anymore, then you would have issued a claim for nothing because the insurer is only liable to the extent they are liable to the insured.

Instead, issuing proceedings directly against the council, would give you have the ability of recovery even if the insurer has no obligation to pay out. It just seems strange to me that the insurer is trying to insist you go down the Regulations route and claim against the insurer instead of the council. There could be a perfectly honest reason for this but I would just be a little sceptical, or perhaps it is to ensure the council's name is kept out of any public proceedings, who knows.

Personally, I would be looking to claim directly against the council as I see no reason not to, and if the insurer is involved they would be defending on the council's behalf anyway so there is not a good reason why the insurer should be the named claimant other than potentially for the reasons I mentioned above about liability.

* The Regulations have been amended slightly due to Brexit under the The Motor Vehicles (Compulsory Insurance and Rights against Insurers) (EU Exit) Regulations 2020 so that references to 'Member States' now refer to the UK and Gibraltar for the purposes of the definition of an "entitled party" under those Regulations.

[newbieatlaw]

Thanks Rob, it's good to have a second opinion on that. I am definitely minded to take action against the council directly. It's a very good point about the level of cover they have and/or any exclusions it may have. I can't tell if they are deliberately driving me down this route as it advantages them in some way but it feels that way. It could be something as little as them being concerned the council wont respond/pass on the court proceedings documents fast enough and miss the deadlines which are quite short.

The latest on this in general is that I am waiting on their final decision following the evidence I have supplied to date. They have been quite dismissive until now and have gone quiet for a couple of weeks.

[newbieatlaw]

I had an unclear email recently but they may be looking to pay out on a without prejudice basis. Fingers crossed.

Interestingly, yesterday they did the first cut of the year, which I filmed in case they did something similar. The driver of the ride on mower was using his phone (texting or similar) while mowing. It doesn't directly help my specific claim but is beyond belief and demonstrates the lack of care.