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JimLawyer
JimLawyer, Solicitor
Category: South Africa Law
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Experience:  Senior Associate Solicitor
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I am a landlord and have many properties. Sadly last night a

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Hi,
JA: Hello. How can I help?
Customer: I am a landlord and have many properties. Sadly last night a tenant was in the kitchen and a wall cupboard fell off the wall and caused her a great deal of injuries. Broken nose, possible fractured wrist and lots of bruising. She is home now after an ambulance was call for. I visited the house this afternoon with 2 professional kitchen fitters to try and find out why it fell off the wall. The conclusion was it was poorly fitted some 4 years ago and was an accident waiting to happen. The tenants family is now talking about an insurance claim. But For some unexplainable reason out of the 30 properties we have this one has slipped through the net and is not insured. So my question is do they have a claim on me? Thanks Kev
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: no
JA: Have you talked to a lawyer about this?
Customer: no
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no

Hello, this is Jim and I am a dual-qualified lawyer (UK and Republic of Ireland) and happy to help you this evening.

She has a potential claim and ideally there would be an insurer to claim against. I do not know if she took out any? If not then she has to prove her claim and cite a breach of the Occupier's Liability Act 1957 (in failing to repair and maintain the property) she has to prove the cupboard was in a dangerous condition and the accident was reasonably foreseeable.

She has a 51% burden of proof to overcome to establish negligence on your part - she would need an expert witness report to support her claim. You could also obtain your own report if you did not agree to hers (if indeed she actually makes a claim against you) - one possible defence would be that this accident was too remote to establish liability (i.e. not reasonably foreseeable) and that this was a pure accident. If she goes to a no win no fee lawyer, that lawyer will want to know if you have insurance - so that the insurer can meet a claim for not just compensation but also legal costs. If you tell them no insurance - they will reassess the claim as the prospects of recovering compensation and costs from you personally diminish. Her claim is probably worth less than £15,000 (for injuries excluding lost earnings) based on a broken nose, fractured wrist, etc. I do not know if the cupboard fell off or she pulled it - you would need to establish exactly what happened. If the latter then I would be defending the claim. But to answer your question regarding whether she has a claim, the answer is potentially yes - but she has to prove it not only from a liability standpoint but also her injuries have to be proven in medical evidence too. Finally, check her social media posts if you can - see if she has put anything on there (you would be surprised at the stuff claimants do post - which can harm their claim if they put anything on there which casts doubt over their credibility).

I hope this helps – if you can please rate the answer by clicking the 5 stars (the top of your screen & then click “submit”), I can answer follow up Q&A's at no extra charge and I will be credited for helping you today.

Many thanks,

Jim

JimLawyer and other South Africa Law Specialists are ready to help you
Customer: replied 2 days ago.
Hi Jim, thanks for this. She is a good tenant and I have known her from a distance for 20 years. She is also a town councillor. Her x-partner though is a personal injuries lawyer so she has good free advice. I don't believe she pulled it. I do beleiev the cupboards were fitted poorly but how would anyone know unless they did fall off. Do you think she or I have a claim on the builder that fitted them 4 years ago? One final question. they have already mentioned an insurance claim, so where do I go from here? Thanks Kev.
Customer: replied 2 days ago.
She didn't take any insurance out herself. So there is no insurance on either side.

Thanks, she has likely spoken to the ex partner anyway, sadly we live in a litigious society.

She has to prove the cupboards were in a poor state and dangerous - you may well receive a letter of claim from a lawyer to allege negligence and to ask for details of your insurers. You should respond to their letter - this then buys you 3 months to confirm your liability decision (by law). She could pursue the builder and indeed you should provide the builder's details to her so she can pursue them and not yourself.

If/when you receive a letter of claim, you should reply within 21 days. If you want to come back to this site I can guide you on responding to it. Just don't admit liability to her (if she contacts you) or in writing either. Keep the powder dry for now.

Customer: replied 2 days ago.
She already knows that the cupboards were poorly fitted. The experts I took with me showed her daughter the reasons why it fell off. So I hope this hasn't incriminated me. They both clearly stated the builder had done it wrong.
Customer: replied 2 days ago.
I haven't said it was my fault.

OK, one thing you can do is if they sue you, you can counter claim against the builder.

Ideally they sue the builder and bypass yourself. Another scenario is both of you are sued (two defendants) but the builder is likely to be liable here - they should have performed the work with reasonable care and skill.

I would make great play (in reply to the claimant) that the builder was at fault and the kitchen fitters confirmed this too - then provide her with the builder's details.

Customer: replied 2 days ago.
Thank you. I feel a lot clearer now. I will indeed come back if needed. I appreciate your clear replies. My best to you. Kevin Byrne

It's my pleasure and thank you for using this site for your question. I am available daily and also at weekends so if you need any further help please don't hesitate to ask.

Best wishes

Jim

Customer: replied 1 day ago.
Hi Jim,
this is what I've sent sent, I'' follow up with what I intend to send back. Please comment if you think I need to add or remove anything.

Dear Kevin,
As you know, my mother Melinda has suffered horrendous injuries after the kitchen wall cabinets fell on her without warning yesterday evening. I’ve spoken to her and due to the state she’s in, she’s left her responsibility to me and Alison. This is also regarding the accident and what needs to follow to create a smooth and positive outcome for both parties.
To recap, My mother was taken to St Richards by ambulance and has undergone a CT scan. I understand she has suffered a head injury, fractured nose, significant blood loss, fractured and/or dislocated fingers and major soft tissue injury to her neck, arms and face. A concussion and was out cold for a while. Not to mention being black, blue and swollen all over as well as psychological symptoms.
I am currently providing my mother with 24 hour monitoring and care as insisted upon by the hospital due to her head injury.
My mother’s businesses will be hugely affected and she will need help with her recovery.
The reason for this email is to reaffirm what Alison has told you today. The units are left more or less where they fell to the floor in the incident.
They will need to be cleared and visited ASAP. However we have just spoken and You have offered to do this which we both appreciate.
Id recommend for you to see them for yourself and that this may even require your insurer to visit. Or indeed any workmen you may have had install them prior to my mother renting the property from you? As this will all need to go through insurance.
I do not mean to be blunt but I should forewarn that a claim is likely to follow due to the state she has been left in.
There’s no Ill feelings and please don’t take this email as being personal. We just need to make sure we take the correct steps to insure her best recovery.
If you do come around, I will warn that she is unrecognisable with the swelling and bruising. And suffering from classic head injury symptoms - so fairly unresponsive whilst she wrests. This is not to alarm you but prewarn you of the state she’s in.
I have attached some photos. For the cats sake we have cleaned up most of the blood but you can see it was a hard job from the stains.
(photos)
Thank you and best regards,
Bella

My responce.
Hi Bella,
I’m really sorry this has happened to your mum, I’ve felt sick to my stomach all day yesterday and still do today.
As you’re aware I visited yesterday afternoon and brought a professional kitchen fitter with me, Steve Mercer, and asked him to give his opinion as to why the cupboards had fallen.
Mr Mercer came to the conclusion that the wall tiles must have been fitted first and then the wall cupboards to the top of the tiles. This he explained is not the standard way to do this work and can lead to brackets being positioned incorrectly.
I then thought a second opinion would be useful so asked Wayne Melia, a professional kitchen fitter to have a look immediately after Mr Mercer and he agreed with Mr Mercers conclusion but he also added a second possible scenario. He showed us that the wall wasn’t straight and as a result the extreme right fitting on the top of the right hand unit possibly wasn’t even being used to support the cupboard.
Both professionals had the same overall conclusion, the units weren’t fitted properly.
I have asked both to put their professional views in writing.
As a Landlord I do have a responsibility to make sure the property is kept well and if I was to see anything or if anything was reported to me that was potentially dangerous I would have to act on it to make sure it was safe. I hope you agree that this accident was completely unforeseeable and so a claim against me would be both unfair and unfruitful my opinion for your mum. However, you may wish to pursue this with the builder that completed the fitting in March 2015. At the time I’m pretty sure he was a member of Checkatrade so he would have had to have had public liability insurance.
If your mum decides to take this action, to add to the photos you have taken I have taken many myself along with video on my phone which I would of course offer to you.
As you know, I’ve known your mum for a long time, landlord or not I’d want to help her through her recovery time in any way I could. As already offered to help her in her business, I have a large van and storage room and some muscle via myself and my stepson Wayne. I also have a very good administer on my team called Rebecca. If we can help in any way were just a call away, don’t hesitate to ask.

Again, I’m really sorry this accident has happened to your mum and I wish her a speedy recovery.

My best
Kev.


Should I inform the original installer that this is going on? Should he be given a chance to have a look at the evidence himself?

Thanks
Kev

Hi there, that reply is fine and comes across well. I would send it on to them. I would also recommend you furnish the builder's details to them too - they will be keen to start a claim from the tone of their email to you so if you have the details handy then so much the better.