- May 8, 2018
- 10,626
The last time I had a role with FOS engagement the FOS charged the company £450 just to open the file regardless of the outcome this may focus their mindsReading the policy, here are a few thoughts, (based on my rather limited LLB qualification in Law and even less years practice working for solicitors!), I’m afraid it looks to me anyway, that your decision not to travel because the roads weren’t gritted might be argued by the ticket insurers as coming under several excluding criteria:
1/. Firstly, it is very ‘open‘ worded policy and has a catchall phrase that states you are not covered for:
So you are correct, it’s quite a narrowly and carefully worded policy with an infinite number of possible exclusions so you do need to argue specifically the Adverse Weather clause as applicable or actually challenge it’s contractual ‘fairness’ IMHO !!
- “Any reason not listed in “What am I covered for?”
2/. There was no ‘travel alerts’ at the time so therefore there was no Adverse Weather
However, this is a logical fallacy for a start and the wording on the definitions is vague to me - they have no definition for ’severe weather’ that matches up with anything that could be defined as a ‘severe travel alert’ from the National Highways (who advise the Met Office on severe weather impacts on travel )
Thus definition of ‘Adverse Weather’ is ambiguous and unclear and should be interpreted in your favour:
https://www.which.co.uk/consumer-ri...urance-policy-can-i-challenge-it-ap6x81z7kdzc
“Often it's the interpretation of a clause which is crucial.
It's up to the insurer to make sure that their policies are clear. If they fail to do so, they run the risk of the clause being interpreted in the policyholder's favour. Under the FCA Handbook of Rules and Guidance, insurance companies must communicate information to you which is clear, fair and not misleading. If an exclusion clause contained in your policy is ambiguous, then that ambiguity must be interpreted against the insurance company, and in your favour.”
I’m not aware that Severe travel Alerts’ get issued in UK - what even are they? This sounds like fluff to me. It is the Met Office that issues ‘Severe Weather Alerts’ (eg Amber) and it is The National Highways that informs the Met Office on road travel advice - taken from the Met Office advice on ‘Severe Weather’ : “Here we provide advice from the experts at National Highways, RAC, and the Institute of Advanced Motorists. https://www.metoffice.gov.uk/weathe...sonal-advice/travel/driving-in-severe-weather)
Driving in snow and ice
- Only travel if really necessary. Snow ploughs are unable to get through if the road or motorway is full of stationary traffic, so do not make journeys unless completely necessary to give National Highways and local authorities the space they need to help you on your journey
- Avoid steep hills and exposed roads hills and exposed areas are likely to present more challenging driving conditions in snow and ice
This is from the National Highways website’s advice on travelling in ‘severe weather’ and what ‘severe weather’ might include:
“During severe winter weather, when there may be snow and ice around, please follow this advic
- Stick to the main roads where you can and only travel if necessary.”
Travelling in snow and ice - National Highways
Find out how to make your journeys as smooth and safe as possible when the temperatures drop.nationalhighways.co.uk
You could argue that travelling to a venue for entertainment is not ‘necessary’ travel under the National Highways own guidelines on what to do in severe weather.
3/. The reason you did not travel (or continue to) presumably was directly due to the fear of having an accident (correct me if I’m wrong) - you were not ‘prevented’ from travelling but ‘chose’ (sensibly!) not to.
There is a difference. An Amber warning is only an advisory - it does not ‘disallow’ travel. There is actually a clause stating that ‘fear of catching Covid’ is not a satisfyingly criteria, which lends weight to the idea that ‘fear of anything’ would not qualify for a legitimate reason not to attend an event.
Btw - Only about 41% of roads are gritted in any given Council area, so people can and do use un-gritted roads in bad/icy/snowy weather - So, unless the roads were actually blocked/closed/completely impassable or you were intending to travel by public transport that was cancelled/severely delayed, it would seem you would have an uphill battle to have a straight forward claim under the wording of the policy - ’just’ being icy or with snow would seem to be excluded although if you had had an accident en route, no doubt your tickets would be refunded under the ‘prior accident’ clause in the policy but your claim for damage and injury would obviously be against the Council). Under the Highways Act 1980 (England and Wales) Section 41(1A) states –
"a highway authority is under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice."
It may be that you could claim against the Council for the loss of the tickets if you could argue that the roads were in a dangerous state but it’s a stretch!
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To summarise: Personally I would still continue to argue with the ticket insurers on the following points that:
1. The Adverse Weather’ clause is an unfair contract term in the policy due to its ambiguous nature (see the law on Unfair Contract terms in insurance policies above)
2. It requires an unacceptable and unreasonable risk to travel before being able to claim under it (and to do so would be counter to the National Highways advice in the event of severe weather, eg snow and ice to ‘only travel if necessary’.
3. ’Adverse Weather is backed up by the contemporaneous Amber Warning of Severe Weather from the Met Office who get their travel advice from the National Highways.
4. Driving at night in snow and ice is even more hazardous in those conditions as temperatures fall dramatically creating black ice etc. Were you taking kids? I would add if so that even greater precautions are required.
5. I would summarise that it would be an unfair term of the Policy contract to interpret the ‘Adverse weather’ clause as only being activated under the policy if the insured has first to risk being either stranded en route and suffering hypothermia (lay it on thick!), or risk a reasonably foreseeable accident that more likely than not, could cause personal injury or even death trying to get to the venue to use his tickets!
Good luck - and for what it is worth, I think you were utterly sensible not to risk travel in those conditions- your personal
safety (and other road user’s!) is paramount and much more important than driving in a car at night on icy roads (with kids?) to attend an event.
Finally, if the insurer sticks to their interpretation, I would inform them that you wish to refer the matter to the Financial Ombudsman Service (FOS).
