The recent High Court decision in Frasca-Judd v Golovina is a useful reminder of how careful buildings and contents insurers need to be in assembling evidence in support of a recovery claim. 

The case also dealt with an important issue of when a landlord’s insurers are entitled to bring a subrogated claim against the tenant, which is examined in more detail in a separate update.

This update focuses on the question of whether the insurers in this case had gathered sufficient evidence to prove that the tenant was at fault.

FACTS

The Defendant tenant rented a substantial detached house from the Claimant landlord (although the landlord was named as the Claimant, the claim was of course a subrogated one brought by her insurers). 

The tenant and her partner left the property on 27 December 2009 to return to their London flat for the New Year. On 14 January 2010 the landlord’s gardener attended at the property and saw through a window that it had suffered extensive water damage. 

The heating was apparently not switched on, and the water pipes had frozen.  

The landlord’s insurer paid her just under £130,000 for her claims for repair to the property, damage to contents, and loss of rent. The insurer then looked to recovery its outlay from the tenant, on the basis that she had been negligent and in breach of the tenancy agreement by not leaving the heating switched on.

THE DECISION

On the face of it, the insurer had a reasonably compelling case – the heating was not on, the pipes had frozen, and extensive damage had been caused to the insurer property as a consequence.

The tenant accepted that if she had left the heating switched off when leaving the property, she would be liable to reimburse the landlord’s insurer.  However she was adamant that she had checked that the heating was on before leaving the property.  The burden of proof rested on the insurer to show that she had not.

The insurer called evidence from the landlord’s gardener.  However he did not look at the heating system himself, and could not give direct evidence as to whether it had been switched off, as opposed to having failed for some other reason.

On the day of discovering the escape of water the gardener had called a plumber to the property, who apparently told the gardener that he had “discovered that the heating was switched off”.

Curiously, the plumber was not called to give evidence.  The only other witness who was called was the insurer’s loss adjuster.  Her evidence was that she had spoken to the plumber, and that he had told her that the heating was switched off when he arrived at the property.

The loss adjuster suggested that the electricity supply to the house had tripped because of the water damage.  However the Judge found that there was no evidence to support that contention, and likewise no evidence had been presented as to whether the electricity could have tripped before the pipes froze.

The insurer’s key piece of evidence was a screenshot from the letting agent’s computer.  The screenshot showed the attendance note of a conversation which the letting agent apparently had with the tenant’s partner on the day that the escape of water was discovered.  The note recorded that the tenant’s partner had told the letting agent that the heating had been switched off when the tenant and her partner had left the property on 27 December.

Again, the letting agent was for some reason not called to give evidence, and the attendance note was therefore hearsay evidence.  The Judge had to decide how much weight to place on the note.

The Judge noted that the attendance note was first disclosed to the tenant over 3 years after it was created, and the conversation that it apparently recorded had not been referred to by the insurers or the landlord at any point previously.  The Judge also thought it was relevant that the tenant’s partner had sadly died in the meantime, and was therefore not able to comment on the accuracy of the note.

The Judge was also clearly unimpressed that no information was given to the Court as to why the letting agent had not been called to give evidence.

When the attendance note was first disclosed to the tenant, her immediate response was that it was not accurate.  She said that her partner had already left the house, and was sitting in the car ready to leave, when she checked that the heating was still on.

The Judge noted that the tenant gave this same evidence at trial, and that her position on this point was not undermined in any way by the insurer’s cross examination.

The Judge therefore concluded that the insurer had failed to discharge the burden of proof of showing that the tenant had turned off the heating.  Although he did not expressly say so, it seems the Judge felt it was possible that the electricity supply to the property had tripped prior to the escape of water, and that this could have caused the heating system to switch off.

The claim was therefore dismissed.

COMMENTARY

The case shows the importance of assembling strong evidence on liability in recovery claims, and in particular in calling the right witnesses.  The insurer’s prospects of success would have been greatly enhanced had they called direct evidence from the plumber and the letting agent, rather than relying on witnesses who were relaying what they had said second hand.

The case also highlights the importance of an insurer gathering physical evidence to support a recover claim at the earliest possible stage.  It seems as though the heating system at the property had been replaced by the time serious consideration was given to a recovery claim.  If, on the day of the loss being discovered, someone had obtained for example photographic evidence showing that the heating system was switched off, rather than having failed for some other reason, then this would have been compelling evidence.

It is understandable that when a loss adjuster, or an insurer’s internal claims assessor, attends an incident of this nature their primary focus is on limiting the damage and setting the wheels in motion for remedial work to take place.  However given that they are usually the first representative of the insurer on the scene, those individuals are in an unrivalled position to secure evidence that might be of use in a recovery claim, and gathering this sort of evidence on a first visit is a task that the insurer can always usefully remind the adjuster to do.