Thieves, You And Insurance For Your Kit

We’ve heard about some really bad cases of theft recently, with a filmmaker having his kit stolen on a train from Sheffield to London St Pancras.

This is the second “theft from train” incident that we had heard of in the same week. So it’s of great importance that you have the right cover in place to ensure the safety of your kit, hired in or owned.

We were recently asked the following question by a member of a media trade association:

“…how would/will an insurance company (assuming there is cover) view kit left on a luggage area on a train? Especially if that area is a few seats away from the owner. Is it unattended?”

To answer this question, two things need to be considered – firstly, what is the accepted legal definition of the term “unattended” and, secondly, does the policy wording covering the incident carry its own definition of “unattended” that alters this in any way?

The Legal Definition

Back in the 1960’s a sales rep left his car in a lay-by on an A road. His car was driven off and his samples were stolen.   The insurance company did not pay the claim, and so the case of Starfire Diamond Rings Ltd v Angel (1962), was taken to the Court of Appeal, where Lord Denning held that for a vehicle to be “attended”:

“there must be someone able to keep it under observation, that is, in a position to observe any attempt to interfere with it, and who is so placed as to have a reasonable prospect of preventing any unauthorised interference with it”.

It was also emphasised that the facts in each case would determine whether a vehicle has been “left unattended”.

If we transpose the word “vehicle” for “property” (as in possessions) and then break his statement down into its component parts, firstly, there is no mention that the property must be “constantly in view”, only that the person “attending” must be able to keep the property under observation.

Secondly, this person must be close enough to make a theft unlikely, even if they are not physically able to prevent it. Here, the location of the incident (the facts in the case) may affect things; after all, what is considered reasonable at your own home may not be so in public places, or where these types of thefts are common.

Insurers may argue that the fact that a theft has occurred means that the policyholder was not in a position to intervene, but the law sees this differently. Remember, it is whether the person was in a position to intervene, not whether they were successful in preventing a theft.

Much of this is an interpretation based on the facts of the case.  Your car being stolen whilst you turn round to close your garage door is much more likely to succeed as a claim than it being stolen because you returned inside your house to pick up some things.

The Policy Wording Definition

It is also worth remembering that the Policy Wording itself may define the precise meaning of a word.  Usually, this is to clarify the meaning in relation to the cover being offered, but do check to see.

General definitions of words that apply to the whole of your policy may appear under “Policy Definitions” at the beginning of your Policy Wording.

More specific words that relate to certain sections of your policy (e.g. just to the Property Damage section, or just to the Public Liability Section) will be listed under that section, sometimes under a heading such as “Definitions which apply to this section”.

Helpfully, where there is a definition of a word available in the policy, insurers will usually format this as bold or in italics, and capitalise the first letter.  An example of this is the word You which will be defined under the “Policy Definitions” part of the policy, setting out who You is (or are!)

Reasonable Care

If it can be shown that the aforementioned colleague was still in attendance of his possessions, then there is still the question on whether he fulfilled his obligation to take “Reasonable Care”.

In order to show that he has not taken Reasonable Care, the insurance company would need to show that his actions were “reckless” in some way.  By this, we mean that he recognised the risk, but deliberately “courted” it (he took no measures at all, or took those that he knew were inadequate to prevent the loss).

For example, if he recognised that the items were likely to be stolen from the luggage rack, but decided to leave them there unsupervised in any event, then this could be deemed reckless.  If he witnessed the loss occurring but didn’t alert anyone or give chase, the same could be said (although personal safety would play a part in this decision).

There may well be mitigating circumstances and, again, the facts of the loss, the environment, and the location, would determine whether the actions of the policyholder demonstrated “Reasonable Care” has been exercised, or not.

Whilst you may not always be able to pre-determine the risks posed to you in every situation, a good rule of thumb is to always act as though you are uninsured, and as you believe a reasonable person would in the circumstances you find yourself.

This will give you not only the best chance of a successful claim, but also of preventing the loss occurring in the first place, which should be the first priority.