The Daily Telegraph - Saturday - Money
‘Scaffolders injured our dog but are refusing to pay out’
QOur next-door neighbours asked to have scaffolding erected in our garden so work could be done to their roof. In the spirit of co-operation, we agreed. However, the scaffolding was positioned in a dangerous manner and our beloved dalmatian dog Wilf sustained an injury that resulted in him undergoing surgery to be sedated and have stitches.
We went through due process and sued the scaffolding business in the small claims court for the vet’s bills incurred and obtained judgement for £979.24 plus £70 costs. However, they are not paying up. Our neighbour does not wish to be involved and says it is between us and the scaffolders.
Having paid our vet directly we informed our pet insurance company of the events, seeking to be refunded by them. They said we will have to pay the excess (£95) and because we have made a claim, we have been told the monthly premium will likely increase at the next renewal. It has already gone up from £ 27 a month to £42 without this claim being submitted.
We think the insurance company should pursue the scaffolders because the policy document says they have that right, but they are not engaging. We feel stuck in the middle.
– Joan
Dear Joan
AI am very sorry to hear about Wilf, especially as his injury came about, essentially, because you were being a good neighbour. My own dog Jake required a major operation last year and so I can also relate to having to pay expensive vet’s bills.
It seems to me you have been highly efficient in seeking justice and it is frustrating that it is evading you. Hindsight is the best sight and I hesitate to criticise you in the circumstances of this very stressful situation, but I think in a way you have been almost too efficient in pursuing both the scaffolders and your pet insurance company at the same time. Indeed, having a war on two fronts can be a mistake because you are indeed caught in the middle and not sure where to focus your efforts.
In my view you should have chosen one route to go down, rather than two.
Making a claim on your insurance and leaving your insurers to pursue the scaffolders would have been one route. However, I do appreciate that in doing that you may have ended up still being liable for the excess. And your insurers will use the fact of your dog being injured to increase your premium as his health is now more likely to be in jeopardy than if he had not been injured.
Even if you had not made an insurance claim, at the time of the next renewal of the policy you would have had to inform your insurance company of the injury and operation anyway, as a “relevant disclosure”. Also, there is a worry that even though insurers have the right to pursue third parties (here the scaffolders) in respect of losses to their insured (you), they do not always do so on the basis of a cost-benefit analysis, namely “is it worth it” to them?
In this case you have managed to prove it was worth it because you have obtained legal judgment. You took the route of pursuing the scaffolders directly and because you have obtained judgment against them at court, your initiative has been justified.
But having gone down that route it is now up to you, and not your insurance company, to pursue it to its conclusion.
You are the so- called “claimant” who has obtained judgment against the scaffolders as “defendant”.
In that sense, despite the power the insurance company seeks to give themselves under their policy document, they have no standing in the court case you initiated, so they cannot ask the court to enforce the debt. It is you who has the power and authority to enforce the debt you have proved at the court.
The county court will assist with judgment debts up to £5,000. The way to proceed is to use form N323 to ask the court to issue a “warrant of control”. This is the official way to ask the court to send a bailiff to the address of the defendant given on the court order under which your judgment is recorded to collect the money owed.
The bailiff will first contact the defendant to ask for payment within seven days. If the debt is not paid, the bailiff will visit the debtor’s address to see if anything can be sold to pay the debt. The bailiff will only have legal authority to seize goods owned by the named defendant.
Again, with hindsight, I would have sued your neighbour as a party to the claim jointly with the scaffolders because they were acting on his behalf. In that case, if your claim against your neighbour was successful, he would also be on the hook for the debt.
If you do recover the full debt from the scaffolders, you can then withdraw your insurance claim. The fact of the injury will still be known to your insurers, but as I say, would be disclosable at next renewal anyway.
In summary, the route you have taken means the method of concluding this case is in your hands in terms of seeing through enforcement of the judgment obtained at court. I do hope you are successful and more than anything I wish Wilf a full recovery.
‘Ask a Lawyer’ should not be taken as formal legal advice, but rather as a starting point for readers to undertake their own further research