An estate agent is warning others of the dangers – literally – when viewings do not go quite to plan.
In the troubling case, an elderly man on a viewing in May 2014 tripped despite clear warnings to take care.
He made nothing of the incident at the time and the firm itself heard nothing more – for almost three years.
However, 35 months after the original viewing, it was then contacted by a firm of personal injury ‘ambulance chasing’ solicitors.
The claim was not contested by the agent’s Professional Indemnity insurers and has been settled in court at a cost of some £7,000.
The firm in question is now angry that its insurers caved in so easily and is concerned that agents could be seen as a ‘soft touch’ for personal injury claim solicitors.
The firm is also warning that for personal injury claims, the statutory period of limitation is three years – and that it is apparently a common tactic for claims to be lodged just before the time elapses, hoping that the staff involved may have moved on.
The firm’s managing director said: “This was a second viewing of a property which was empty and where the electricity had been switched off.
“The prospective purchaser unexpectedly brought along his parents. I had a very experienced member of staff showing them around, who did all the right things. She correctly alerted them to the poorly lit stairwell, but despite that, the father slipped and suffered bruising to the base of his spine.
“He brushed off the incident, but if you read the medical report presented many months later, you would have believed it to have been life-threatening.”
When the firm of personal injury solicitors lodged its claim almost three years later, the matter was referred to the agent’s insurers.
“We expected them to contest the claim as we were adamant the correct practice had been followed.
“However, our insurers chose to accept the claim, much to my annoyance, and this now seems to be common practice by insurers for personal injury claims, with the obvious consequence that this will ultimately drive up our premiums.
“Subsequently a verdict against my name as director was given in a distant court in some other part of the country and the claimant and the claims solicitor shared the award.”
The actual award was for just over £3,500 but about the same again was paid out to cover various medical reports.
The agency’s managing director said he now understands that his staff became a “person in control” while conducting inspections at empty properties, and are liable as occupiers to third parties when viewings are conducted without the owner present.
He said that the incident has thrown up several other issues, including whether agents should conduct risk assessments of every single property before any viewings.
He also called for an industry-wide modus operandi of best practice.
He said: “One cannot get indemnity cover against personal injury claims so a code needs to be devised by our industry regulators lest the insurance companies raise our PI premiums excessively to meet this challenge.
“I’m sure we’ve all received cold calls asking if we have had an accident recently, and it seems that as estate agents, we are at risk of disproportionate liability.”
Comments (24)
As originator of this piece I am pleased at the constructive comments it has prompted. I did raise this with the NAEA some months back, with no constructive/substantive response as yet. Woodentop is correct, It was covered under my Public Liability cover not PI cover.
The consensus appears to be
1. Prior to the event, the agent should identify obvious potential risk areas and discuss with client about how access may have to be restricted. The owner should be asked to advise of any hazards or potential hazards and records kept as part of a risk assessment, now required to demonstrate a responsible procedure. One gets the sense that the “book will be thrown” at an agent who does not do this.
2.Advise all viewers to take particular care as a matter of course when inspecting any property where there may be hidden or less obvious risks (e.g. uneven steps, ice, moss, etc)
3. Immediately after an event, accurate records are essential, Including details of any warnings given, with a prompt report to one’s insurers.
4. Presently, I know of no indemnity or waiver that can enable agents to avoid such responsibility in these cases, but would welcome further input from insurers or our legal friends to establish “best practice”.
I’m off to shovel snow !!
I did raise an eyebrow when it claimed PI. I wonder how many have PLI, if they didn’t before, hopefully they will now. It is articles like this that can help everyone. I am not aware of any indemnity or waiver that protects you from negligence. Any such cover, if it does exist may pay out to injured party but would lead to the breach by the agent, having to pay back the insurers? (Just like car insurance).
Health & Safety Regulations are bedtime reading … give you nightmares and you wouldn’t ever step outside your front door. However, common sense is what it is all about … regrettably many haven’t any or recognise their potential liabilities and that is what injury lawyers are looking for.
As we have found to our cost if you get your PI insurance involved they will pretty much settle without an argument if the amount is below 5K, because at the end of the day they will claw the cost back anyhow on increased premiums.
Can’t we get some sort of waiver or cover by the NAEA for viewings? Maybe they can sort themselves out and do something beneficial to their members
He said that the incident has thrown up several other issues, including whether agents should conduct risk assessments of every single property before any viewings.
This has always been the case, and where was his Public Liability insurance? (Not to be confused with Professional Indemnity). We have had two cases in 20 years, both a try on by injury specialist solicitors both originating from visits to A&E., The first was when someone tripped on a roadside kerb (not defective) and hit our door and cut an ear and claimed if it wasn’t for our door, the injury wouldn’t have been sustained. That went no where. The other was a viewing when the viewer was specifically told not to go into the cellar but insisted and slipped on the no fault steps. 2 1/2 years later it was thrown out as spurious claim. We understand the evidence of how they came to make the claim raised eyebrows as being pushed by the injury lawyers and manipulative evidence. I can remember once seeing injury lawyers purposely tampering with a manhole cover to make it raise higher than the recognised 50p to get a photograph in the town centre. It was loose but didn’t tilt unless you actually pulled it up! No idea who was involved or what happened but clearly looked like evidence was being fixed.
I would suggest in order to cover your branch, ensure you get every viewer to sign a disclaimer before entering a vacant property, included within is a statement along the lines of “the agent at the time of the viewing has highlighted all potential risks to me and accept full liability for my actions” etc etc………scan it, on file, job done. Also ensure any “risks” are taped off, especially outside.
Take care with disclaimers how they are worded and what you are doing. You may highlight a risk that your disclaimer does not protect you. In general a disclaimer is not valid if the issue is dangerous. Courts often follow common sense if correctly risk assessed, it is the lawyers and insurers doing a deal, the cheap option for them both that is an issue.
Interesting comment, I know very little about PI but documenting everything makes sense. One question re your comment ‘In the terms of business a clause could be added to state the viewer and seller are responsible for any injury suffered ….’ Surely TOBs are between us and the vendor so how would this cover a viewer? And would the seller then be liable?
I seem to recall the “fall down the well case” some time back answered this one. The agent is responsible. You should be using Public Liability Insurance.
Personal injury claims or property damage claims are usually excluded under PI policies, other than where there has been a breach in duty or where a third party has suffered as a result of professional negligence.
These types of claims are common and insurers often take a commercial view to settle rather than incur costs by defending in court.
in my experience the only way an agent can properly protect themselves is by documenting everything clearly should an incident ever arise.
In the terms of business a clause could be added to state the viewer and seller are responsible for any injury suffered during viewings and the agent cannot accept responsibility or liability for any personal injury or property damage.
We see plenty of these claims and especially with block management.
We did a feature last year which touched on this very topic of ambulance chasers taking advantage of PI policies at the agents expense. The feature is on our website but please email me on property.professionals@lonsdaleib.com if you want me to fwd the link.
Did you know you should record such incidents in your accident book .. the one you have in your office!!
I think the spiders in the basement have eaten it
Dont record it..just take a leaf out of PB or trumps book..
To the best of my knowledge i cant remember having that conversation.
SO did it happen?
To the best of my knowledge i cant remeber having that conbversation..
You lying git!!
To the best of knowledge i am a lying git but i you cant remember that i cant remember my fake memory.
ok,,dont do it again
yours sincerely
ASA- UK
What is the scenario if someone falls down the stairs? We sell lots of Victorian terraces with steep stairs running across the property. I always warn people to be careful….but what if someone fell?
Risk assess! If they are infirm … refuse unless you strap them to a safety harness with someone certified competent to use the equipment and has insurance!
Not saying it’s true in this particular case, but there is suspicion of some people having multiple claims accross differing industries.
It is only a matter of time before some unscrupulous companies start helping to ‘manufacture’ claims against what are perceived as ‘weak defendents’.
How do we as an industry protect ourselves against this?
Can PIE do an article with an expert on this. Let’s open up what I believe will be a very interesting discussion.
Aewsome idea Agentv. If this is fake news and the agent punched the viewer over we need to know the facts to stop us panicking like fish in a barrel waiting for the next headline . If it is true pie could start a network for agents advisory articles.
How life has changed, Almost 20 years ago, i had someone fall through a floor at a property, he just climbed out and we cracked on with the rest of the viewing. Now that i accept would have been a real issue today, but arent people allowed to take responsibility for their own actions. If i fall over because my shoe laces arent tied, i cant sue the company who made the shoes….or can i?
I think it shoudl be the owners fault… surely every agent would be blamed by tenants on behalf of the landlord with this logic.
ArthurHouse your case is terrible and sounds as though there are many responsible parties who need to be held accountable for your trauma stress and potentially life changing injuries. At #itseveryoneelsesfault.com we will sue the shoe manufacturer, lace maker and of course your parents for being neglectful for failing to teach you important life skills. If someone called you a name after falling over there will significant damages, broken back £34.78 broken arm £25.98 and bruised ego for slanderous name calling £12,000,000………
The story highlights why we should be shovelling snow from Accompanied Viewing/Empty properties pathways/stairs over the next few days/week.
If you shovel snow to uncover ice and someone slips. Bingo. You’ll likely get done for tampering with the walk through area.
Agents might be best to get legal advice (poss from a preditor claims company) to add wording for the property owner to be responsible for safe viewing conditions of agency staff and applicants viewing.
Agents should just be marketeers. Not scape goats for EVERYTHING
Agents can be too easy to target for everything.
If you undertake viewings for the vendor, the agent is always responsible. The agents is responsible for its actions or negilence of taking action. If it is unsafe … it is unsafe, no disclaimer will protect you. You can put up warning notices to mitigate claims but it is still the action you take that matters.
Should we be getting people to sign disclaimers outside the house? Also if someone slips over when the vendor is with them,,is this still the agents fault for introducing them to the property?.
or does every business have to operate on a ‘i just hope it doesnt happen to me’ logic and pay up if get unlucky?
I cant see how the solictitors lost that one.
The law scares me these days,,they seem to have lost all common sense.