Weather To Claim
Weather To Claim
Weather To Claim
PREFACE
1
STORM
2
The next case involving storm was S&M Hotels Ltd v Legal and General
Assurance Society Ltd (1972) which related to a hotel building which
collapsed during the course of conversion work in 1968 and a claim was
submitted under the storm peril for the damage sustained. It was held
that the building collapsed for some reason, but not because a storm was
the concurrent or contributing or proximate cause of the damage. The
judge did however express some thoughts on the meaning of Storm which
he considered must be something more prolonged and widespread than a
gust of wind. One swallow does not make a summer and one may have a
gust without a storm although during a storm there will almost certainly
be gusts.
3
in the far North of Scotland. This contrasts with research undertaken
following widespread storms in Sheffield in February 1962, when it was
found that damage to roofs occurred at gust speeds as low as 40 mph.
That particular storm affected almost two-thirds of the citys entire
housing stock, with one hundred completely destroyed, including a
number of pre-fabs. Clearly, there have been improvements in
construction and maintenance standards over the past fifty years and the
speeds at which one can reasonably expect a building in a reasonable
state of repair to sustain storm damage are now much higher that they
were in 1962.
Reference to the Beaufort Scale for land use (See table on Page 32),
indicates that slight structural damage (chimney pots and slates removed)
occurs at a mean speed of 47-54 mph (Force 9 Strong Gale).
Damage occurs during gusts, which are much higher than the mean wind
speed. A typical ratio of gust speed to average (or mean) wind speed is
approximately 1.7, so that in other words a wind of 10 mph will be
accompanied by occasional gusts of up to 17 mph.
Applying this ratio to the data for a Strong Gale above implies that gusts
could be expected of about 80 mph. This is the most likely scenario
inland but on the coast, because the sea surface is relatively smooth, the
friction effect will be much less but more constant in character so the
gust ratio will be about 1.3 times the average speed, making a gust in a
Force 9 wind, 61mph. Given the complications involved in using different
ratios in various parts of the country, it is probably best to use this ratio
(1.3 times) in considering the gust speed for Storm claims.
The Financial Ombudsman Service has stated that if the policy terms fail
to provide a definition of Storm (and most of them dont) they would
consider their approach to storm conditions on the basis of their past
experience and would reflect upon the factors that need to be present for
a claim to be successful, which are that a storm must involve violent
winds and would generally be accompanied by rain, hail or snow. It is not
enough for there to merely be heavy rain and, similarly, high winds are not
sufficient to indicate that there has been a storm.
The Ombudsman has also considered that, where the policyholder asserts
that there has been a storm, there are three issues that need to be
considered:-
4
Has the policyholder shown, on the balance of probabilities, that
storm conditions prevailed on or around the date upon which the
damage is alleged to have occurred?
Is the nature of the damage consistent with storm?
Were the storm conditions the prevailing or dominant cause of the
damage that has occurred?
On the basis of the foregoing, we can set out a definition of Storm to suit
all cases, as follows:-
One problem which can manifest itself during high winds is the loss of
rendering from the walls of a house. This does not normally arise from a
storm, but rather from general decay and the effects of frost so that
unless there is evidence that the storm was the last straw, such claims
can be repudiated.
Flat roofs are the bane of an adjusters life, for the fact that water enters a
property during heavy rain or a thunderstorm suggests to a policyholder
that the roof has been damaged by a storm and that the claim should be
successful.
5
5. Does water pond on the roof?
6. What is the room below used for? (Flat roofs above kitchens, utility
rooms or bathrooms are more vulnerable to condensation problems
than those above living rooms or garages)
7. Is the roof used as a balcony or terrace
8. Is the contractor who installed the roof still trading if not why not?
If the roof has been repaired in the past in the same place, then that is an
indication that the work has been done poorly, while if there is evidence of
flowing, rippling, cracking or crazing, this indicates old age particularly
where mastic asphalt is concerned. Blisters are an indication of
entrapped water or condensation, while excessive deflection or sagging
may affect the flow of water off the roof resulting in ponding and
additional loading on the structure and is caused by undersized joists,
inadequate strutting or blocking, weakening of the joists by decay, wood-
boring insect attack, decay or deterioration of the decking or softness
between joints. Other potential causes are corroded connections,
collapsed or rotted insulation or poor original construction.
Older types of built-up bitumen felt can suffer from splitting due to thermal
movement in the deck or insulation below, cracking or crazing due to
exposure to sunlight, or mechanical damage from heavy objects on the
surface or penetration by ivy.
Parapet walls are a common source of problems and inspections will often
reveal that the walls are cracked, out of plumb or not straight, while some
parts may be loose or have detached, with a lack of weathering detail or
signs of spalling concrete, rust staining or movement at joints
Coverings to flat roofs are very rarely damaged by high winds, but instead
are affected by the problems referred to above although they can be
struck and impaled by falling tiles. All but the last of these are outside the
6
scope of policy cover, but if a tile is dislodged during a storm, then the
damage that it causes should be covered by most policies under the Storm
peril.
Retaining walls, such as that in Oddy v Phoenix (qv) are often brought
down by the pressure of the saturated, retained earth behind them
frequently failing because of the fact that the wall has no weepholes,
which are designed to permit the retained water to escape.
If they have weepholes, but these are inadequate or blocked, then the
wall could well collapse and the doctrine of proximate cause may come
into play in order to determine whether a claim exists under the terms of
the policy.
7
The position is clear from the following table in which the insured event is
denoted by and any other peril (excepted or otherwise) by.
A single cause or the last of Where the single or last cause is the The position depends on the policy
a series of causes, ie insured peril, there is a valid claim. It terms, eg,if the contract excludes loss
or is unnecessary to enquire into directly or indirectly caused by a
preceding causes where the peril was certain peril, there is no valid claim
not brought into operation by an where there are preceding causes
excepted cause. which include an excepted peril
A concurrent cause The loss is then caused as much by If the loss is caused by the insured
t the insured peril, then the others may separated, there is liability for the
be disregarded latter. If inseparable ,then no
liability at all
In a direct chain of events Where each cause in the sequence is If the excepted peril precedes the
ie. consecutive in unbroken the reasonable and probable consequence happening of the insured peril, the
sequence: directly and naturally resulting from the latter being the reasonable and
either or preceding cause, the insured peril is the and probable consequence directly
cause of the loss (The cause proximate in and naturally resulting from the
efficiency, but not necessarily in time) excepted peril, there is no claim.
If the insured peril is followed by an
excepted peril, the latter being merely
a link in the chain of causation so that
it is a reasonable and probable
consequence of the former, a valid
claim arises.
In an interrupted chain of If there is a new and independent cause If the excepted peril is followed by the
events, ie, consecutive in (novus actus interveniens), then it is not happening of the insured peril as a
broken sequence: the reasonable and probable consequence a new and independent cause, there
either directly and naturally resulting from the is a valid claim therefor.
or preceding cause. If the new cause is an If the insured peril is followed by the
insured peril, there is liability, but there is no happening of an excepted peril as a
liability for loss or damage by the preceding or new and independent cause, there is a
subsequent causes when the sequence is a claim excluding loss or damage
broken caused by the excepted peril.
WEIGHT OF SNOW
8
person of average common sense described the conditions as a storm
then there had been one. The conditions did not constitute a storm within
any of the cases mentioned above and could have prevailed on any day of
the year, while the amount of snow involved was infrequent but not
unusual.
It was a decision that strongly upset the expert witness for Lombard, the
late Arthur Blackham of Noble Denton, who mentioned it whenever he saw
me at Royal Meteorological Society events from then on and he
considered that the judges decision was somewhat perverse.
In the end, in order to give policyholders cover without dispute, the Storm
peril was extended to include weight of snow. Unfortunately for insurers
this extension to cover could be a licence to print money for there are
many situations in which it will not be possible to measure the depth of
the snow, while if allowed to remain in situ for several days it can become
self-compacted and the lower part of the lying snow can turn to ice -due to
thawing and refreezing- when against a warmer substrate such as the roof
of an underlying habitable room, with the ice being many times heavier
than the equivalent thickness of snow. Certainly, the structure should be
capable of withstanding the weight imposed unless the roof is exhibiting
signs of deterioration to its structure.
To consider such cases, the insurer will need to know the type,
construction and age of the roof, its maintenance history, the depth of the
snow, how long it had lain on the roof, the minimum temperature
experienced over the period and the nature and extent of the damage
sustained.
9
occur. Whilst the resultant water damage might be considered by insurers
if the policy includes accidental damage cover, the repairs to the flashings
fall outside the scope of policy cover. The same situation arises in
summer, when the flashings can expand with the heat.
One other type of incident that would fall for consideration under
the weight of snow peril is AVALANCHE, which one might be
forgiven for thinking would only occur in the UK in Scotland. In fact,
there have been at least three instances of damage to property
property and/ or death caused by avalanches in England and Wales,
two of which occurred in upland areas, but the most serious and
significant occurred on the South Downs at Lewes, East Sussex on
27th December 1836.
Snow had started falling over on Christmas Eve and there was a
furious blizzard on Christmas Day, with these conditions continuing
into Boxing Day resulting in snowdrifts up to 15m (50ft) high, cutting
the town off completely. A particularly menacing snowdrift built up
on the cliff to the east of the town and formed a hanging shelf of
snow towering over a row of terraced cottages below. When cracks
appeared in the snow overhang the residents below were urged to
evacuate their homes but most ignored the warning thinking it was
a joke. The snow toppled on the brink and slid down the hill with
tremendous force completely burying the seven end houses. 9
people died as a result of either suffocation or being crushed under
the weight of snow, but there were six survivors.
LIGHTNING
Firstly, a plea to you all to ensure that the word is spelled correctly
and not as in the opposite to darkening, with an extra en in the
middle!
10
When lightning strikes, radial currents spread out from the location
of the strike and, in the case of buildings, may result in current
passing through metal pipes and electrical wiring, which can mean
that someone touching a radiator, light switch or telephone can
receive a shock and, in the case of numerous items being plugged in
to an electrical circuit, all of the devices concerned can blow unless
they are earthed, resulting in expensive claims for damage to
electrical equipment and in some cases fire damage to the building
itself. Television aerials are not effective lightning conductors and
church spires can be similarly ineffective. This was the case in a
lightning claim which occurred during a thunderstorm at Leigh Park,
near Havant, Hampshire in June 2001 and which resulted in the
Church being destroyed by fire.
11
HAIL
12
Hail can cause extensive damage to crops (it is a specific peril in
agricultural policies) and can also damage flat roofs and Perspex
roof panels, as well as cars.
13
FALLING TREES
Remember that the policy will generally not pay for the removal of
the tree or any branches unless it is necessary to clear building
debris buried under the remains of the tree as it fell.
The writer can recall a claim which arose during the Burns Day
Storm when the bifurcated trunk of a 60 ft tall mature beech tree
growing on public land split, one limb of the trunk from the other
close to the base bifurcation, with the massive trunk being uprooted
and toppling due to the loss of stability. It was demonstrated that
the decay in the crutch of the bifurcation close to ground level
14
could, and indeed should, have been observed many years before
had there been regular inspection of the tree and a successful claim
was made against the Council concerned.
FLOOD
Indeed, in the first of these two cases the definition was revised to the
following:
A rising water table can result in the penetration of water into basements
and cellars which are not properly tanked. The leading case on the
subject is Young v Sun Alliance & London Insurance Co Ltd (1978) which
involved gradual seepage into and the flooding of, a room resulting from
the natural diversion of an underground water course. The insured
maintained that Insurers were responsible for the cost of repairing the
underground floor and walls together with the cost of having them re-
tanked. It was the conclusion of the Courts that even though the water
15
came from a natural water course, it was not caused by flood which
meant a large and temporary movement of water. On appeal, it was
further held that the word flood was used in the policy in the sense of
having an element of violence and suddenness, whilst it was the essence
of a flood that there was some abnormal situation and that seepage of
water was not violent or abnormal.
The Court of Appeal gave a very short judgment which concluded that a
flood could arise from an accumulation of water which was not in absolute
terms large but it was necessary to consider the size of the premises. The
accumulation did not have to be rapid to be abnormal but there was no
basis for confining a flood to ingress of water originating from a natural
phenomenon. It had to be looked at from the point of view of a
householder and, as far as the insured was concerned, the fact that a
blocked outlet caused the ingress did not prevent that ingress from being
a flood.
Such claims were all too familiar in the Autumn of 2000, when for example
on the 15th September heavy rainfall in Southsea and this, coupled with
the local pumping station being out of action for maintenance, resulted in
flooding to a large number of properties, while just over a month later,
Lewes and large areas of the country were similarly affected to a depth of
well over 150mm. Some of the losses involved water overflowing from
water courses, but others related to water escaping from drainage pipes
that could not cope with the volume of water involved.
The fact that the Rohan Investments case involved roof drainage means
that if rainwater collects within the building and could be termed a
flood, then the claim for damage falls under the flood peril and the same
arises where a road gulley cannot cope with the volume of rain, resulting
in a manhole cover being blown off, or a drain backsurging and water
entering the premises.
16
Basements can cause problems when they become flooded for they
should be tanked (ie provided with some impervious membrane to
prevent dampness getting in). The writer can recall one claim, where on
stripping back the soggy, brown wallpaper it revealed that it had not been
affixed to a plastered wall but merely stiff London Clay. Many cellars
were either designed for the storage of things that did not need to be kept
dry or were in fact designed to flood and have since been altered to be
used as bedrooms or for storage purposes.
It should be noted that policies now exclude losses directly arising from
an increase in the level of the water table
In Bybrook Barn Garden Centre v Kent County Council (The Times 5th
January 2001) which went to the Court of Appeal, the claimants garden
centre was flooded in such circumstances. The Defendants were
successors of the Authority which built the culvert. It was not a nuisance
when constructed and was not expected to become a nuisance. However,
as the area developed, the culver became inadequate in times of heavy
rain. It was held that the Defendants as Highway Authority were liable.
They did not have a strict liability to abate the nuisance but they had a
duty to take reasonable action. To widen the culvert would have cost
money, but would have been a relatively simple solution and they should
have done it.
17
18
FROST
The only aspect of frost damage that is covered under a material damage
policy is damage caused by the escape of water from pipes or other water
apparatus as a result of bursting due to freezing, while cover is often
provided under household policies in respect of the repairs necessary to
the plumbing as a result of frost causing the burst.
Temperatures of less than -5C which persist for more than 24 hours freeze
unprotected water pipes and temperatures of -10C those that are lagged.
It is therefore essential that pipes are lagged and that in extreme
conditions heat is allowed to enter the roof space, either by means of a
heater placed directly below the open hatch, or by means of a suitable
heater placed in the loft itself (indeed some modern houses have one built
in for this purpose). In the case of heaters within the loft space, the risk
of fire needs to be carefully considered so such heaters must be kept
away from any items stored in the loft.
The majority of claims for escape of water due to frost arise when the
insured is away at a time when freezing conditions exist and, to save
money, the decision is taken to either turn off the central heating or to
maintain it at a very low temperature, which is insufficient for the system
to function effectively if the temperature falls dramatically outside.
What then can be done to reduce the risks involved? There are three main
rules:-
1 Maintain the central heating at a temperature of 21C and run it for at
four hours each morning and evening as well as for a couple of hours
in the middle of the night.
2 Flush the toilet and run a tap each day for a brief period.
19
3 Open the loft hatch to allow heat to get into the roof space, making
sure that in doing so condensation does not arise in the roof space.
In May 2011, I received a claim for damage to a solar panel which had
been damaged during the very cold weather in December 2010. Reference
to the weather conditions revealed that at Yeovil, where this incident
occurred, the minimum temperature was below zero for a number of nights
with the lowest minimum being minus 9.3C .
There are two types of solar panel, the photovoltaic cell and the solar
panel collector. The former are designed to withstand heat, cold, rain and
hail for many years and I have not dealt with any weather related claims
for them, but the latter consist either of plastic flat plates or vacuum tube
collectors which are filled with a mixture of water and propylene glycol
which is used as heat change fluid to protect against frost. However, in
the weather conditions experienced in December 2010, the plastic pipes
split resulting in an escape of water, meaning that the hot water heating
system failed.
Given that the solar collector was part of the water apparatus for the
house it was linked to a water cylinder located in the roof space the
loss fell for consideration by the insurers concerned.
Frost and snow create slippery road conditions and the duty of the
Highway Authority to clear it was considered in Goodes v East Sussex CC,
20
2000 (The Times, 16th June 2000). In this case, the Highway Authority had
a good warning system and dispatched gritters on the morning in
question, but they had not arrived by the time the accident involving the
plaintiff occurred. It was held that the Duty owed under the Highways
Act, 1980 and earlier statutes had not included clearance of snow and ice
and therefore the case was dismissed. This would be worth bearing in
mind in the event of an impact damage claim arising in such
circumstances and the question of recovery needing to be addressed.
21
SUBSIDENCE, HEAVE, LANDSLIP AND HEAT
Cracking does not necessarily arise from subsidence, but can be brought
about as a result of thermal movement, although in such cases the cracks
are generally straight and of even width. One of the areas frequently
affected by such cracking is the ceiling where cracks can occur at wall
and ceiling junctions. Such damage is outside the scope of cover provided
under the terms of the Accidental damage to Buildings peril.
If the weather conditions are dry and perhaps hot in areas where the soil
is clay-based, during most, or all of this period, there will be a surge in the
number of subsidence claims presented to insurers.
22
There were cracks more than one inch in width and we had to make
urgent arrangements for the rear of the house to be shored up. The
problem had been caused by the dry weather that summer, coupled with
the leeching effect of a large tree growing in the garden about 20 feet
from the rear elevation.
Heave is the reverse of subsidence and can arise as a result of an
increase in the water table on a clay subsoil. It can also be experienced
on sub-soils consisting of fissured chalk, which can expand in frost
conditions.
Heat can result in the temperature in the roof space rising to a figure of
more than 100F, which can result in plastic water supply pipes springing
apart at the joints causing water to cascade down through the house.
Summer heat can cause other problems, some of them more unexpected.
On 3rd August 1990, the temperature reached 36C and I dealt with one
claim where the insured came home from work in the early afternoon and
opened the sliding patio door to the lounge, which faced south. She
received a shock when the double glazed door fell from its track and
landed on the patio, smashing the glass. The door was of UPVC
construction and the day in question was the hottest of the century. I
noticed that the door track had distorted and it was clear that this had
been caused by the heat so that when the door was pulled it had simply
fallen out of its track. All insurers could do, under the terms of the policy,
was to pay for the re-glazing of the doors.
Another claim that I dealt with was on 14th August 2003 for a fallen lath
and plaster ceiling on a staircase, which had a large fixed glass light and
it was clear that the heat generated by the sun, in a period when the
highest temperature in Britain occurred (on 10th August, when 37.9C was
recorded at Brogdale, Kent about 5 miles away from this particular claim)
had built up on the enclosed staircase and caused the lath and plaster to
dry out and crumble. This had to be excluded under the terms of the
accidental damage to buildings peril.
23
MISCELLANEOUS
There are a number of weather related defects which are not covered
under insurance policies such as:
Rain, which can penetrate porous materials with expansion and
contraction breaking the surface
Wind, if not of such severity as to constitute storm can nevertheless
loosen materials such as cement fillets
Frost causes moisture within saturated materials to freeze and expand
Sunlight assist the drying-out process, but rapid drying may cause too
rapid a shrinkage at the material surface. This may affect the structure,
the colour of the finish of the material
Other non-porous materials may be affected by sunlight in different ways.
A material may soften, melt or expand, processes which must be guarded
against or allowed for. Examples include double glazed windows, plastic
guttering or fascias.
Ivy, mosses and lichens can cause deterioration of material surface and
jointing.
24
Atmospheric pollution can create acid rain causing deterioration of
components of both stone and metal.
These problems can bring about damage which only tends to manifest
itself following periods of heavy rainfall and high winds. For example, loss
of rendering (moisture penetration/frost), leaking flat roofs (sunlight/
moisture/chemical reaction/biological effects), failure of lead
flashings(thermal movement/creep/biological effects/atmospheric
pollution), slippage of roof tiles/slates(chemical/biological/atmospheric
pollution) and leaning chimneys (chemical reaction).
These are matters that fall outside the scope of cover, but the
Ombudsman has stated that normally it would expect an insurer to make
some payment if the damaged item which has previously shown no sign of
being defective fails in conditions that constitute a claim within one of the
insured perils.
Would it have been possible for the repairs that were needed following
the initial storm to have been completed prior to the second storm taking
place?
25
EARTHQUAKE
The 1931 earthquake which was centred off the Dogger Bank in the
North Sea did cause damage on land and in 1884 one occurred in
Colchester, resulting in damage to about 1,200 buildings.
26
DEALING WITH THE DAMAGE
Much depends upon what has happened, but the first step is to
undertake a close inspection of the building, both internally and
externally, remembering that whatever has caused the damage
might be repeated a few days later.
Have roof tiles/slates been dislodged or has water got into the
building? Take photographs to illustrate the damage and then get
tarpaulins fitted to the roof to prevent further bad weather
penetrating the structure. If water has got in, has it reached the
level of the power circuits if so, turn off the power and contact an
electrician to check that the circuits are safe and, if not, to get
them dried, made safe and repaired. The policyholder should also
deal with the gas and water supplies in the same way.
Having surveyed the damage, the policy holder should contact their
insurance company and explain to them what has happened and
what the nature and extent of the damage is, as well as reaching a
decision as to whether the house is inhabitable. The insurance
company should guide the policyholder from this point onwards.
27
very thirsty in terms of electricity usage and meter readings should
be taken at the outset as the cost of the power used can be claimed
under the policy.
28
Whilst the drying rate of a material will vary according to its
porosity and density, it is also determined by the ability of moisture
to evaporate into the surrounding air. Drying rates are greatly
improved by lowering relative humidity, adding heat and increasing
air movement.
29
In summer, particularly during the day, drying is best achieved by
introducing as much warm, fresh air as possible using fans to blow
air across damp surfaces to speed up evaporation rates. This
method is simple and cost effective. Heating or dehumidification
should not be used during this time.
30
Vinyl floor tiles Replace
31
finish
32
Timber skirtings Replace
ALTERNATIVE ACCOMMODATION
33
The policy wording must be checked for some policies cover
alternative accommodation while others cover additional living
expenses, while cover will also be subject to a monetary limit.
34
uninhabitable. Some policies do provide such cover and the policy
wording needs to be checked in each case.
35
THE BEAUFORT SCALE FOR LAND USE
36
TORRO HAIL SCALE
37
EUROPEAN MACROSEISMIC SCALE (SHORT FORM)
II Scarcely felt Felt only by very few individual people at rest in houses
III Weak Felt indoors by a few people. People at rest feel a swaying or
light trembling
IV Largely observed Felt indoors by many people, outdoors by very few, a few
people are awakened. Windows, doors and dishes rattle
VI Slightly damaging Many people are frightened and run outdoors. Some objects
fall. Many houses suffer slight non-structural damage like
hairline cracks and fall of small pieces of plaster
VII Damaging Most people are frightened and run outdoors. Furniture is
shifted and objects fall from shelves in large numbers. Many
well-built ordinary buildings suffer moderate damage; small
cracks in walls, fall of plaster, parts of chimneys fall down;
older buildings may show large cracks in walls and failure of
fill-in walls
VIII Heavily damaging Many people find it difficult to stand. Many houses have
large cracks in walls. A few well-built ordinary buildings
show serious failure of walls, while weak older structures
may collapse
38
X Very destructive Many ordinary well-built buildings collapse
BIBLIOGRAPHY
The Wrong Kind of Snow, by Antony Woodward & Robert Penn, published
by Hodder & Stoughton, 2007
Storm Force by Michael Fish, Ian McCaskill & Paul Hudson published by
Great Northern Books 2007
The Surrey Weather Book and The Sussex Weather Book both by Mark
Davison and Ian Currie and published by Frosted Earth
39
The website of the Tornado and Storm Research Organisation
www.torro.org.uk
40
ABOUT THE AUTHOR
Malcolm Johnson has had a keen interest in the weather since childhood,
and was heightened by a holiday in 1956 which took him to Lynmouth,
scene of a severe flood in 1953, the dry summer of 1959 and the smog and
snow of 1962/63.
Upon leaving school, he worked for Eagle Star from 1967 until 1972, the
insurance department of Trafalgar House Investments from 1973 until
1980, where he spent much of his time knee deep in mud on construction
sites dealing with claims and in 1980 he became a loss adjuster initially
with Malcolm Sheppard & Co Ltd. He left Malcolm Sheppard in 1985 and
joined Preston, Hawes and Walker in 1985, rejoining Sheppards in 1987.
He remained with that firm and its successor companies, (Fishers, Miller
and Miller Pycraft, before joining The Claims People Group in 2003 and
then Stuart Neal & Co Ltd in 2006, where he is currently employed.
41