Personal injury defence

[DustyDavies]

Looking for help on what step to take next.
3.5 years ago we were having our loft converted. The roof was being stripped out and our building contractor appointed an independent waste contractor to clear the rubbish on the scaffolding platform. It was a Saturday and the main building team were not there. We were out for the day. Waste contractor didn't bother using the rubbish chute and as he was throwing a plank of wood directly on to the back of his van, it missed and hit our neighbour on the head. Neighbour fell to ground. Glasses broke. He had a scratch and sore shoulder for a few weeks. Didn't take time off work. 3 years on - just before statute of limitations ran out we received letters from solicitors threatening legal action. Court order followed claiming that we were negligent and liable for compensating for 'loss and damage ' as it says in party wall agreement with the neighbour in question. Medical reports show nothing more than experience of tinnitus since accident. He has Parkinsons as it happens as well. Can't prove any adverse health impacts from accident and no time was taken off work. £400 for new glasses is only actual cost claimed.

Myself and husband listed as separate defendants as are the builders, their insurers and the waste contractor. We submitted our defence statement denying all liability on the basis of many factors including the fact that we took careful steps to ensure our builders were 'reputable' and had adequate liability insurances in place that covered them and Subcontractors. Builders lied in their defence statement saying they had not seen a copy of the party wall agreement from us and didn't know anything about the accident.

We have subsequently had a Directions Questionnaire and notification of allocation to fast track. Builder and insurers solicitors have proposed we settle £1750 each plus claimants legal fees to avoid lengthy litigation .
I'm furious that the builders have lied in their defence. And also furious that the neighbour has pursued it this far. We were very sympathetic and supportive at the time and were assured that he didn't blame us.

Should we accept the settlement proposal (no guarantee the claimant will accept this) or proceed with a trial? Do we call the builders bluff and bank on them settling in their own? We have already spent £900 on a Barrister to write the defence statement. We are considering now appointing a solicitor to support with directions questionnaire if we don't agree to a settlement.

[atticus]

Frankly the decision is one for you to take. You need to weigh up the range of possible outcomes and decide. That said, settling now will almost certainly be a better outcome for you than if you take the case to trial and lose.

Is this not covered by your house insurance?

[DustyDavies]

Thank you. I just can't see how we could lose. It's baffling. We've done everything correctly. Unfortunately our insurance didn't cover legal costs.

[des8]

Besides not having Legal expenses cover, doesn't your home insurance cover public liability?

[Pezza54]

I feel sorry for you and your neighbour. He must have grounds to make an injury claim. Being hit on the head by a plank thrown from height causing a fall is serious. He has clearly received legal advice that along with medical reports he has a strong claim
You may not have witnessed him being hit with the plank but you were involved afterwards and so was a witness to events that occurred at the time. The builder is saying he knows nothing about the incident and he and his insurers have decided to contest the claim
The employee that threw the plank when there was a rubbish chute available was guilty of negligence. The contractor's public liability insurance should cover their employee's negligence. Unfortunately the "accident" wasn't reported to the insurance company at the time. They would have acknowledged the potential claim, writing to yourself and the contractor
I suspect, others could disagree, that your neighbour will win his claim (not necessarily the full claim amount). However the judge may direct the contractor, subcontractor and/or insurance company to pay the award including the claimant's legal costs

Did the barrister who wrote your defence provide any advice? Particularly advice about your personal legal responsibility regarding the claim.

[DustyDavies]

Besides not having Legal expenses cover, doesn't your home insurance cover public liability?

It would seem it didn't unfortunately.

[DustyDavies]

I found our barrister couldn't explain anything clearly to me despite writing a strong defence statement.

[Pezza54]

I fail to see how you can be found liable.
You had no involvement in the way the subcontractor or contractor carried out the work. You checked the contractor had public liability insurance and noted a chute was erected to remove old materials from the roof.
You stated your barrister has filed a strong defence.
Your neighbour may have made a mistake when he made you a defendant. He could have called you as a witness if the contractor and subcontractor denied the "accident" happened
Does your neighbour's claim state that the builders didn't use the chute, frequently threw materials direct into a skip from height and that you were aware of this hazardous working method that was taking place but did nothing to stop it?

[atticus]

I would hope your defence includes a denial of liability on the grounds that the builder was your independent contractor and that you cannot be held vicariously liable for the actions of the builder or his employees.

[DustyDavies]

Thanks all. The neighbour most definitely meant to include us as defendants. It feels like a very clumsy 'let's go after everyone' and let everyone fight it out to the bitter end. We have offered a 'nuisance' sum of £750 plus 20% which is Thompson's fee. It's now up to the other parties to agree. The thing I don't understand is that the independent waste contractor doesn't seem to have filed a defence. And the insurance company has recommended a notice of discontinuance for him and the builders. I.e. those that actually let this happen in the first place. Maddening!!!

[Manxman]

It would seem it didn't unfortunately.

Are you absolutely 100% sure of that? Did you actually ask your insurer?

I'd have thought the only possible grounds that your neighbour had for claiming against you would be on the basis of occupier's liability.

I'd be amazed if your buildings and/or contents insurance did not cover occupier's laibility. (If it really doesn't then you need to change insurance provider. It's cover that I consider absolutely essential)

[Manxman]

...Medical reports show nothing more than experience of tinnitus since accident. He has Parkinsons as it happens as well. Can't prove any adverse health impacts from accident and no time was taken off work. £400 for new glasses is only actual cost claimed...

... We have subsequently had a Directions Questionnaire and notification of allocation to fast track. Builder and insurers solicitors have proposed we settle £1750 each plus claimants legal fees to avoid lengthy litigation .
I'm furious that the builders have lied in their defence. And also furious that the neighbour has pursued it this far. We were very sympathetic and supportive at the time and were assured that he didn't blame us...

If £400 is the only cost claimed, why is it proposed that the four of you ( you, your builder, their insurer and the waste contractor) pay £1750 each plus the neighbour's legal costs?

I don't know why you're furious with your neighbour. If I'd been hit in the circumstances you describe I'd be suing you all as well.

[islandgirl]

I disagree. This is why you have insurance.

[Manxman]

I disagree. This is why you have insurance.

Sorry - what do you disagree with?

[islandgirl]

Sorry - what do you disagree with?

This: If £400 is the only cost claimed, why is it proposed that the four of you ( you, your builder, their insurer and the waste contractor) pay £1750 each plus the neighbour's legal costs?