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My client has a motor vehicle accident whilst towing a trailer where he lost control and spun off the road. The insurer accepted the claim but disputes some of the damage advising it is general wear and tear (this involves scratching to the paint work) and inconsistent with the description of the accident.

My client is adamant the damage was caused in the accident. When he spun off the road some wire was caught on the truck and caused the damage - this was not noted in the description at the time as it was relatively minor to the major damage and how the accident occurred.

After the accident occurred the client actually took a photo of his vehicle in-situ on the side of the road and luckily you can see the wire wrapped on the vehicle. This was subsequently sent through to the insurer who still maintains that the damage is not consistent with being caused by the wire but wear and tear (this from an inhouse adjuster who has not seen the vehicle) and is relying on a previous adjuster's report who was unaware of the wire. They have accepted other damage to that side of the vehicle caused by the wire, which had to be cut away to enable the vehicle to be salvaged.

I have seen the damage, it is scratching to the paintwork and could easily have been caused by the wire, the panelbeater agrees it could well have been caused by this - i.e. he cannot discount it. My client did take very good care of his vehicle as is evidenced by its upkeep (it is only just two years old).

My question is thus - When making a claim under an insurance policy, the initial onus is on the insured to establish that he has suffered a loss, which is covered by the policy. I believe my client has shown it was more likely than not that the disputed damage occurred during the accident - with the insurer wanting to decline this damage, what onus is on them to disprove otherwise?

Reply...  Crossley Gates

The standard of proof is the same, more likely than not. From your account of the evidence above, it sounds to me that it is more likely than not the damage was caused by the accident.  If the insurer continues to disagree with your client, and your client wants to take the matter further, it will have to consider taking legal action.

March 2019

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