Insurance Claim "Witness" Statements

[Aquasition]

Brief Background:

My boat was stolen from a marina. The boat was on a trailer and the trailer had a security device attached. Insurers investigated; one interviewee (marina employee) stated that he would see my boat almost daily and that he did not recall seeing a security device attached to my trailer. He ended his statement stating that to the best of his knowledge my boat did not have a security device attached. Insurer relied on this and only offered partial settlement.

Now, the employee firstly could not have seen my boat almost daily, however, on the basis that he had, he could not have established that the trailer did not have a security device without physically walking around the boat and trailer -which he didn't do.

There were over 270 boats at the marina parked very close to each other, making it impossible to see the whole of the boat and trailer. If you can imagine a car/boat in a normal size garage (at home) - and the garage door is open and you can see the front of the car/boat but not the rest. Well that is how the boat was parked in the marina.

I took the employee to Small Claims Court. The Sheriff said that the employee has no case to answer because he was using his recollection and was not stating anything factual.

My argument is that the employee was not in a position to see the whole boat - he could only see the front. Therefore if he could not see the rest of the boat, he had no entitlement to comment on whether it had a security device. Therefore, he was not entitled to say that he did not recall seeing a security device because he could not have done as he effectively did not see the part of the boat that the security device would have been attached to.

There was also a period of six weeks that the boat, trailer, trailer wheels and security device were completely covered by a blue cover. He would see the blue cover, but as he could not see what was underneath, how could he then give comment/opinion on what was underneath.

The employee when giving his statement to the insurer should (in my mind) have said, "I would see his boat almost daily. I cannot say if it had a security device fitted as I could not see the whole boat".

Hopefully I have explained this position and would welcome your personal thoughts.

Another matter is duty of care. The Sheriff says there is no duty of care on this employee to take reasonable care in what he says about me etc.

I had a contract with his employers and my understanding is that he and perhaps his employers held a duty of care towards me. If as the Sheriff implies he did not then it would mean that pretty much anyone could say anything about others, as long as they put "to the best of my knowledge" or "I recall".

Would welcome your thoughts.

Chris

[Paule]

Re: Insurance Claim "Witness" Statements

Why aren't you going back to your insurer with all this?

ie Stating that there was a lock present and that you want a full settlement.

I'm not sure what you hoped to achieve by taking a witness to court, what did you hope to achieve by doing this?

[Aquasition]

Re: Insurance Claim "Witness" Statements

Hi Paule,

The Insurer has been questioned on this but they have issued their final response stating that their original decision remains the same. A complaint has been made to the FOS and the Adjudicator has upheld my claim. However, the Insurer has not accepted the Adjudicator's decision and has asked that the complaint is presented to the Ombudsman for his/her final decision.

There are two reasons why a Small Claims Action was raised. Firstly, the Insurer's were not willing to challenge this particular statement. It was in their interest not to do so. Therefore if it could be proved in a Court of Law that the "witness" provided false information, this would give substantiate weight to my claim with the Ombudsman.

Secondly, I was under the impression that as a long standing customer of this particular marina that they might assist me with my loss. In contrast, one of their employees effectively prevented a successful claim for no reason. My understanding was that the employee owed me a duty of care. I also did not expect the employee to lie.

Imagine that you look out of your window every day at the same time and you observe the same car driving past your house. The windows of the car are tinted which prevent you from seeing inside the car. This also prevents you from seeing the driver and whether or not the driver is wearing a seat belt.

One day the driver and car are involved in an accident nearby your house. The police visit you and ask if you know the car. You reply, "Yes, I see it pass my house every day". The police then ask you if the Driver wore a seat belt. Would you be right by responding "I dont recall the Driver wearing a seat belt". Or should your answer be "I could not see if the Driver was wearing a seat belt as the tinted windows prevented me from seeing inside".

Big difference I think.

Chris

[Paule]

Re: Insurance Claim "Witness" Statements

Thanks for clearing it up.

Have you any redress against the marina, for letting someone drive out with your boat.
I'm not up to speed on marina security, but surely they at least have a gate.
They must have some responsibilty to make sure the marina is safe

[righty]

Re: Insurance Claim "Witness" Statements

Brief Background:

My boat was stolen from a marina. The boat was on a trailer and the trailer had a security device attached. Insurers investigated; one interviewee (marina employee) stated that he would see my boat almost daily and that he did not recall seeing a security device attached to my trailer. He ended his statement stating that to the best of his knowledge my boat did not have a security device attached. Insurer relied on this and only offered partial settlement.

Now, the employee firstly could not have seen my boat almost daily, however, on the basis that he had, he could not have established that the trailer did not have a security device without physically walking around the boat and trailer -which he didn't do.

There were over 270 boats at the marina parked very close to each other, making it impossible to see the whole of the boat and trailer. If you can imagine a car/boat in a normal size garage (at home) - and the garage door is open and you can see the front of the car/boat but not the rest. Well that is how the boat was parked in the marina.

I took the employee to Small Claims Court. The Sheriff said that the employee has no case to answer because he was using his recollection and was not stating anything factual.

My argument is that the employee was not in a position to see the whole boat - he could only see the front. Therefore if he could not see the rest of the boat, he had no entitlement to comment on whether it had a security device. Therefore, he was not entitled to say that he did not recall seeing a security device because he could not have done as he effectively did not see the part of the boat that the security device would have been attached to.

There was also a period of six weeks that the boat, trailer, trailer wheels and security device were completely covered by a blue cover. He would see the blue cover, but as he could not see what was underneath, how could he then give comment/opinion on what was underneath.

The employee when giving his statement to the insurer should (in my mind) have said, "I would see his boat almost daily. I cannot say if it had a security device fitted as I could not see the whole boat".

Hopefully I have explained this position and would welcome your personal thoughts.

Another matter is duty of care. The Sheriff says there is no duty of care on this employee to take reasonable care in what he says about me etc.

I had a contract with his employers and my understanding is that he and perhaps his employers held a duty of care towards me. If as the Sheriff implies he did not then it would mean that pretty much anyone could say anything about others, as long as they put "to the best of my knowledge" or "I recall".

Would welcome your thoughts.

Chris

Oh dear he claimed he could see your boat Q if he could see it why didn't he stop the theft AND as he's employed by the marina sue them

[Aquasition]

Re: Insurance Claim

Hi Paule,

In answer to your last post. The marina does have a lifting barrier. There is no redress against the marina for allowing someone to drive out with your boat. They are covered by their terms and conditions when you enter into a contract with them. So it's up to you to insure and secure your property. I don't know how far one would get if an action was raised against the marina - not that far I guess because of the terms and conditions, regardless of them being perhaps unfair. That's a legal battle for someone else to explore.

I think the gist of my post has been lost. It is the validity of the statement that I have difficulty with and whether there is legal recourse against the employee making effectively false statements.

Returning to my imaginary car situation:

You look out of your window every day at the same time and observe your neighbours car driving past your house. The windows of the car are tinted so you cannot see inside and you cannot see if it is Mr Neighbour or Mrs Neighbour who is driving. The fact that you cannot see who is driving also means that you cannot see if the driver is wearing a seat belt.

Lets assume that the driver always wore a seat belt.

One day the driver and car are involved in an accident nearby your house. The accident is not the fault of the driver but the driver sustains personal injury. A claim is made on their insurance. The insurance investigator visits you and ask if you know the car. You reply, "Yes, it's my neighbours at number 47 and I see it pass my house every day". The investigator then ask you if the Driver was wearing a seat belt. You then say "that you do not recall the driver wearing a seat belt".

Your neighbour's insurer declines the claim on the basis of your statement in that there was doubt in driver wearing a seat belt.

How would you expect your neighbour to react towards you if they found out that you had made such a statement? Do you not think that your neighbour should have legal recourse against you for making a statement that you could neither possibly justify or substantiate? Is it not like asking a blind man what colour is this flower - he can smell it, touch it etc, but he cannot see it.

Chris

[righty]

Re: Insurance Claim "Witness" Statements

The T's & C's are only enforceable where there is no negligence & as most barriers are operated by a personally issued card it would appear that negligence might have occured. Also the card reader will have a memory able to id the person who used it at the time of the theft

[Aquasition]

Re: Insurance Claim "Witness" Statements

The T's & C's are only enforceable where there is no negligence & as most barriers are operated by a personally issued card it would appear that negligence might have occured. Also the card reader will have a memory able to id the person who used it at the time of the theft

Hi Righty,

Nice to see you on this thread. I would agree that there is a big question mark over the causation of the marina. My boating buddy has also questioned this area. The barrier is in fact operated by a card. However there are a couple of issues here:

Firstly, I am not sure if the card is issued personally. My boating buddy has two cards, one he uses and one I use. Secondly, I would imagine that the only way that the perpetrators got into the marina was by waiting for another vehicle to enter with their card and then slip in behind them. I would guess this to be a flaw in their system and I suppose this flaw could then be looked at with regard to negligence - I look forward to your comments on this.

The exit barrier is not controlled by any card. As soon as a vehicle approaches the exit barrier, it will lift and allow the vehicle to drive through. This system is still in operation. Again, I guess that one could look at this for any negligence.

I would say that since the theft, the marina has been particularly hostile toward me as I have asked for many documents and have questioned the integrity of their employee.

I would welcome your comments on negligence.

Chris

[righty]

Re: Insurance Claim "Witness" Statements

As I said the barrier will record who used it at the time & even if they state it wasn't them you have an argument of negligence either against that person for losing/lending their card or the marina Also its usual for there to be CCTV near the entrance/exit is there any?

[righty]

Re: Insurance Claim "Witness" Statements

Forgot to say that even though the card might not be personal issue the time of use should be recorded

[Aquasition]

Re: Insurance Claim "Witness" Statements

Hi Righty,

There is no issue with regard to who stole the boat - the police caught them from CCTV. Whilst they admitted stealing the boat, they would not say who they sold it onto and it has not been recovered. The thieves have been charged with the theft together with 70 odd other thefts!

The issues outstanding in my mind Righty are:

The marina employee statement

As I have tried to explain - how on earth could he provide a statement about the security device on the trailer when he could not see it! If he could not see if the boat/trailer had a security device - he is not in a position to state whether there was or was not one fitted. It is accepted that he only said "I do not recall seeing one fitted". However, this would give 99.9% of the population the opinion that he was in a position to see if there was a device fitted! Therefore at best, he is misleading. There has to be a legal recourse for individuals who are harmed or who have lossed from negligent misstatements.

Duty of Care

Does the employee owe me as a customer a duty of care?

Negligence of the Marina

Whilst they have T&C and indemnify themselves against damage and loss of customers property; the marina has security barriers and issue entrance cards to customers (what is the purpose of this ???). Have they therefore been negligent in allowing an unauthorised user to enter the marina, steal a boat and drive out of the marina?

Sorry to drag this on but I am sure that most people who are in the thick of matters need outside direction to help clarify the issues.

Chris

[righty]

Re: Insurance Claim "Witness" Statements

Hi Righty,

There is no issue with regard to who stole the boat - the police caught them from CCTV. Whilst they admitted stealing the boat, they would not say who they sold it onto and it has not been recovered. The thieves have been charged with the theft together with 70 odd other thefts!

The issues outstanding in my mind Righty are:

The marina employee statement

As I have tried to explain - how on earth could he provide a statement about the security device on the trailer when he could not see it! If he could not see if the boat/trailer had a security device - he is not in a position to state whether there was or was not one fitted. It is accepted that he only said "I do not recall seeing one fitted". However, this would give 99.9% of the population the opinion that he was in a position to see if there was a device fitted! Therefore at best, he is misleading. There has to be a legal recourse for individuals who are harmed or who have lossed from negligent misstatements. His statement does not amount to negligence his actions or lack of them may

Duty of Care

Does the employee owe me as a customer a duty of care? Only insofar that he is an employee of the marina & as an employee of the marina its they who should be being sued for negligence not the individual. The employer has vicarious liability for the actions of their employee provided the negligence occurred during the course of their normal employment

Negligence of the Marina

Whilst they have T&C and indemnify (they cannot indemnify themselves against negligence no matter what the contract might claim) themselves against damage and loss of customers property; the marina has security barriers and issue entrance cards to customers (what is the purpose of this ???). Have they therefore been negligent in allowing an unauthorised user to enter the marina, steal a boat and drive out of the marina?

Sorry to drag this on but I am sure that most people who are in the thick of matters need outside direction to help clarify the issues.

Chris

Have you considered the argument that even if there had been no security device fitted it would not have stopped the theft. Some so called Gold Seal security devices can be removed in seconds if the thief is experienced & most are, are the accused travelers per chance? Also was it a single or twin axle trailer? & if twin which wheel was the device fitted to?

[righty]

Re: Insurance Claim "Witness" Statements

Disclaimers which state "no responsibility for any loss or damage howsoever caused" are unlawful & the firms, including some major retailers, displaying such signs can & should be reported to TS.

[Aquasition]

Re: Insurance Claim "Witness" Statements

Hi Righty,

Contacted TS who then put me in touch with CC. As soon as I mentioned boats the guy pretty much took a hike. However, managed to get him to sit back down again and discuss T&C. If the terms and conditions are on a contract (which we sign by the way) and in those terms its states that they are not liable then that is perfectly acceptable. I think that you perhaps agreed with this point. However, where negligence plays a part then it is a different issue. TS and CC would not be able to comment on whether the marina were negligent in allowing an unauthorised person to enter the marina. CC particularly said that it would be for the Sheriff to decide - thereby meaning another court case.

I think we need to understand here that anyone can access the marina (with the exception of berths) on foot. So someone can walk in, stroll around the boats that are parked up/laid up on the hard standing and pretty much do what they want. Whether this would be seen as negligence in the provision of a reasonable standard of security, I don't know.

As far as vehicular access, the marina has installed a security barrier which is operated by card or by pressing a button and speaking to a member of staff. Now, I do not know why they have done this. I would guess that it would be for security. (Obvious you might say). However, if they have done this for security, then why is the security so non existent when it comes to individuals on foot?

I would suspect that the reason for installing the barriers would have been to prevent unauthorised access. That being the case, it could be argued that the security in place to prevent unauthorised access fell short of what one would expect.

It's a complicated issue... getting near to having resort to the legal profession perhaps?

Chris

[righty]

Re: Insurance Claim "Witness" Statements

Its not that complicated.

Why did they go to the expense of installing a barrier if it wasn't for security purposes If negligence is proven then their T's & C's are meaningless. IMHO permitting unauthorized entry demonstrates negligence & theft will be made a much more foreseeable risk

When you contracted with the marina to store your boat you rightly assumed your property would be reasonably safe & it wasn't. eg The thieves did not have to go to extraordinary lengths to gain access & remove your vessel.

Also ask them who their 3rd party liability insurer is then demand a copy of the terms. There is no commercial confidentially applicable to the T's & C's that only applies to the premium paid