Storm Cristophe recently led to parts of Cheshire, Lancashire, Greater Manchester the North East and East Lothian experiencing one of the wettest three-day periods on record and receiving the whole of January’s long-term average rainfall in just this short time frame.[1] Meanwhile, other parts of the UK suffered high winds, significant snowfalls and blizzards. For some homeowners, with retaining walls in their gardens or on their property boundaries, this weather will have been accompanied by a collapse of a wall. Not all of the resulting damage and loss will be covered by their buildings’ insurance.
Some insurers may already be seeking to decline a claim relating to the collapse of a retaining wall, on grounds of what it says is a policy exclusion, or perhaps “gradual deterioration” or the failure of an incident to satisfy a ‘cause’ of damage, such as storm, flood or land slip.
Retaining wall claims can be fraught with difficulty and often require expert negotiation. Aspray’s loss assessors are often appointed to handle such incidents because some property owners understand the complexity of such claims and need our help. Please read on to discover the reasons why.
What is a retaining wall?
A retaining wall is a structure that holds back retained earth and withstands a load beyond the wall, which could be imposed by buildings or other objects. What is beyond the wall could be another property and garden, a housing development, a highway, an area of land or forest, or something else. Generally, the repair and maintenance of a wall is the responsibility whoever owns the land that it retains.
Country estates could have significant lengths of retaining wall around their grounds, but many other homeowners will also have a retaining wall in their garden or between their home and another property, particularly if their home is on a hill or slope.
The wall should have been constructed so as to withstand any pressure exerted from the other side. More modern retaining walls are engineered, use advanced materials and have weep holes, which allow any build-up of water to drain through, but older walls typically lack these. A dry-stone wall, for instance, was built with traditional skills, not modern technology. Many traditional walls would also have incorporated lime mortar into their construction, which can wash away.
Storms, bad weather, retaining walls and insurance
As many retaining walls are older structures, it is common for them to fail during severe bad weather and this is where negotiating an insurance claim can be tricky for non-experts.
When faced with a claim for the failure of a retaining wall, an insurer will look at the policy wording and see whether or not it is covered for damage for an ‘event’ such as flood, storm, escape of water (from a water installation) or landslip.
However, even if the policy typically covers such ‘events’, they will then assess what they adjudge to be the ‘proximate’ cause of the wall’s failure.[2] In layman’s terms, this means the dominant or effective cause of the damage, in their opinion, not a subordinate cause.
Whilst a property policyholder can be insured against a ‘peril’, like storm, it could be argued – by the insurer and their typical local representative, the loss adjuster – that the peril in question did not cause the loss (damage) but merely facilitated it. That is to say that other factors with regard to the wall were the actual reasons for its failure and the peril (e.g. storm, wind, snow, rain), merely provided the ‘occasion’ for its failure.
This can lead to an insurer stating that lack of maintenance and the ‘gradual deterioration over time’ of the wall was the proximate cause of the failure, not the ‘event’. In such cases, the property claim can be declined.
It could be counter-argued, on the other hand, that damage by the peril caused a chain of events that naturally led to the resulting damage. A loss assessor, like Aspray, might be able to prove this, on your behalf.
This is all complex, particularly as many retaining walls, as we said earlier, do not have the benefits of modern know-how to relieve or withstand pressures. Many will have gradually decaying mortar joints, whilst the land around them may now be subjected to very different pressures than was originally the case. Brickwork can trap moisture, or water can freeze within the wall.
Additionally, it is worth noting that, even if an insurer makes a claim of ‘gradual deterioration’ or ‘lack of maintenance’ on one part of the insurance policy, that policy may include accidental damage and, on occasions, a retaining wall insurance claim could be valid under that policy term.
Case Law, Storm and Flood Definitions
Insurers will often quote certain case law when declining a retaining wall property insurance claim, with this including Oddy v Phoenix Insurance Co Ltd (1966). Here, the collapse of a 12-foot retaining wall on to a bungalow was deemed to have not occurred because of storm but because of inadequate construction and water build-up over time. Whilst not all claims can be justifiably declined on this basis, this case did produce a definition of storm that is quoted within many claims settlements today.
The judge stated: “Storm means storm and to me it denotes some sort of violent wind, usually accompanied by rain, hail or snow. Storm does not mean persistent bad weather, nor does it mean heavy rain or persistent rain by itself.”
Whilst this may leave you wondering whether you have any hope of making a successful property claim, it is worth noting that the Financial Ombudsman, on its website, quotes this definition but says, “But in some cases, we may find there’s storm without there being high winds.” It also says that, at times, rain, hail or snowfall can “by itself constitute storm.”[3]
As the Ombudsman points out, insurers will often take a stance on what they believe a storm definition to be. Therefore, even if they do not point to ‘gradual deterioration’ as a reason to decline a claim, they could suggest wind speed was insufficient to have caused damage or that a storm was not present within the insured’s localised area.
The fact that the Ombudsman says it would look at weather reports from various weather stations and would even consider bad weather, over a period of time, as being a cause of damage, reflects how refusals to pay retaining wall claims may not be valid and the reasons for declining claims not as black and white as insurers would have policyholders believe, at times.
Similarly, although insurers typically define ‘flood’ as being an ‘eruption of water’, rather than build-up over time, and do not view it as being an accumulation of groundwater or general weathering, the Ombudsman believes they should not just look at this definition but seek to deliver a “fair outcome.” This is what Aspray seeks to achieve for its clients, in all property negotiations on their behalf. It is not about what insurers term ‘betterment.’
Gradual Deterioration
In the cases for which Aspray fights for policyholders who have suffered damage to a retaining wall, or damage to their property because a wall has collapsed, we also find that the ‘gradual deterioration’ (or gradually operating causes) grounds for declining a claim can also be argued to be unjust.
By using the services of structural experts, we can sometimes prove, if it is the case, that poor maintenance was not at fault. We can also point to the Financial Ombudsman’s own view, that insurers should not find fault in a retaining wall purely because it lacks modern features – like weep holes – and penalise a policyholder solely because their wall is of older construction.
Landslip
Landslip is another possible reason for a valid claim to be made on a property insurance policy, with regard to the collapse of a retaining wall. The failure of the wall is not landslip but it could be brought about by loadings from surrounding buildings, excavations and other situations.
Many insurance policies will, however, require there to be damage to the main property and not just the retaining wall, to make an accidental damage claim valid under a landslip clause. In that instance, repairs might be covered. Not having access to the property (denial of access) is not enough, however. Each landslip case needs to be adjudged according to its own circumstances and the individual insurance policy wording.
Factors that will see such a landslip claim being dismissed include faulty workmanship or defective materials, movement, settlement or shrinkage of the buildings or damage brought about by any of these, damage created by such movements or demolition or structural repairs at the home, which could have caused a landslip.
General Tips with Regard to Retaining Walls
- Make sure you assess the full cost of any future reinstatement of a retaining wall and that your policy would cover such a cost
- Be aware of any policy exclusions that could catch you out, particularly if you have significant retaining walls or are vulnerable to any future collapse of a wall
- Keep a keen eye on wall maintenance and keep trees and tree roots away from your wall, to prevent these causing damage
- Retain all receipts and records of any work carried out on a retaining wall
- If you detect any changes in a wall, bring in an expert who can offer a view of its strength and structure
- Be especially vigilant about a retaining wall if any work is taking place above or around it, or if you live in an area where the geology is predominantly clay and where ‘lean’ could occur
- Make sure you know who is responsible for the maintenance of a retaining wall, if it is on a boundary. Check your deeds and flag up any concerns to whoever is responsible, if necessary.
Conclusion
Property insurance claims around retaining walls are not easy to handle alone. There are various policy terms, definitions, and pieces of insurance case law that can be referenced as a reason to decline such claims. This does not necessarily mean that any decision to decline a claim is a valid one. There are many grey areas and claims pitfalls.
What we can say is that Aspray is always here to assist those who feel they have a valid claim or who are confused or unable to tackle such a claim without assistance. If that is you, please call us on 0800 077 6705.
[1] https://www.metoffice.gov.uk/binaries/content/assets/metofficegovuk/pdf/weather/learn-about/uk-past-events/interesting/2021/2021_01_storm_christoph.pdf
[2] https://www.cila.co.uk/cila/download-link/sig-downloads/subsidence/files-18/307-retaining-walls-cila-subsidence-sig-nov17/file
[3] https://www.financial-ombudsman.org.uk/businesses/complaints-deal/insurance/home-buildings-insurance/storm-damage