TEMPERATURES colder than Russia's have left a trail of devastation across Scotland, from smashed cars, to broken bones and wrecked homes.
But worse could yet be on the way. Insurance companies have been besieged with calls from motorists, homeowners and travellers brought to the brink of despair by the severe weather. And claims, particularly for burst pipes, are expected to surge when the big thaw finally arrives. A spokeswoman for Britain's biggest insurer, Aviva, said claims were running a third higher than this time last year, but so far most related to car accidents.
"Household claims take longer to materialise, and start arriving in large numbers once the big thaw sets in," she said.
Insurer Morethan reported claims had soared more than 50 per cent following a sharp rise in car shunts and single motor accidents. Burst pipe calls were also up.
Other families will be worrying about how difficulties getting to work because of cancelled transport or dangerous conditions will affect pay packets. Cancelled flights and trains may also mean ruined holidays.
Looking around the Scottish capital and other cities, there are signs many pavements have gone ungritted. Thoughts of who to sue may be in the minds of anyone who has suffered a fall because of icy paths. The law on this issue is not always as clear. Here we explain your rights.
WILL I GET PAID?
Hundreds, possibly thousands, of employees may have been forced to take "snow days" off work because travel was impossible. In other cases, the closure of schools or nurseries will have forced parents to stay at home.
While many may have been able to work effectively remotely, doing their job away from the workplace is an impossibility for others. So if you failed to turn up, will you still be paid?
According to legal firm Pannone, there is no case law on this. A contract of employment might provide for paid time off in the event of adverse weather, but this is extremely rare. Strictly speaking, you are probably not entitled to be paid, although many employers may do so as a goodwill gesture.
A Pannone spokesman said: "Generally, an employer only has the duty to pay an employee who is willing and able to work. If they fail to turn up, the employer is under no legal obligation to pay them. Companies withhold pay, force employees to use their holidays or agree to pay them on the condition that they make up the lost time by working unpaid overtime at a later date."
By the same token, though, firms are not allowed to lay off staff because the snow prevents them carrying out their business. The spokesman added: "Unless an employer has a contractual power to lay off, any staff turning up for work should be paid, even in the event that the business is forced to close due to adverse weather or insufficient staff."
Similarly, parents forced to stay at home because of school closures are entitled to take dependant care leave, but this will be unpaid. Staff are allowed to take a reasonable amount of unpaid time off work to look after a dependant or deal with family emergencies, but staff must tell their employer, as soon as practicable, the reason for their absence and how long they expect to be off work.
Finally, if you can get into work, expect to be asked to cover for absent colleagues. The Pannone spokesman said: "It will come down to individual employment contracts, but in our experience most contracts include terms requiring staff to work additional hours where this is necessary.
"In some workplaces, such as the NHS, staff are contractually required to carry on working, even if the next shift does not arrive."
WHY YOU NEED TO CLEAR YOUR PATH
If someone with a legitimate purpose, such as the postman delivering mail, slips on ice on your property and injures himself, then you are liable under the Occupiers Liability (Scotland) Act 1960. This legislation places a responsibility on homeowners to make sure access to their property is not hazardous, whatever the circumstances, to anyone who wishes legitimately to visit it.
However, claims must be reasonable, which means that if you have attempted to make the path safe, by clearing it, then the complaint will fail (for more details see the ruling in the McCondichie v Mains Medical Centre case below).
Any claims should in any case be covered by third-party protection under your home insurance policy, but this may not always be the case if you have failed to take due care of your property and access.
WHEN DISASTER STRIKES AT HOME
In a normal year, burst pipe claims dwarf many other household crises, and concerns are mounting for an avalanche of claims once the big thaw in Scotland sets in.
Householders may this weekend be inspecting all kinds of damage caused by the sub-zero temperatures and snowfalls, but burst pipe claims for Scotland are lagging those normally expected at this time of the year, according to Esure's Adrian Webb.
Burst pipe claims have already come flooding in from Belfast, though, because that was where the thaw began, according to Aviva. These claims are expensive and can be devastating. The cost of burst pipes typically reaches around 700 million in any given year, compared with 400m for burglary. This year's figure could be much higher.
Webb said: "So far in Scotland we have had fewer burst pipe claims than we might have expected at this time of the year. This could be because although temperatures have frozen, we have not yet seen the dramatically changing temperatures which can trigger burst pipes.
"The typical scenario for a bad burst pipe claim is an empty house, temperatures dropping sharply and then rising again quickly. If there is a burst when the family is away, then the damage can be very devastating. Ceilings come down and furniture is wrecked."
Aviva's household claims manager, David Eldridge, said the biggest problems so far related to burst pipes in the roof space, which sets water running through the entire house. "We have partly caused the problem ourselves, by insulating our homes so well," he said. "In the past, some heat would have escaped up to the roof space, preventing freezes and sudden thaws, but now roofs can be very cold places.
"Obviously it is important to have your pipes in the attic well lagged, but it can be equally important to get some heat up there. Although it seems to go against all advice, we suggest it is worthwhile considering keeping your loft hatch open. If you get a burst and it is quickly spotted and dealt with then the damage may not be too serious. But if you are out or away, and it is left for any time, the damage can be very serious."
If you suffer a burst pipe, then damage to the house should be covered by your buildings insurance, and to other furnishings by your contents policy. The first thing to do is to contact a plumber and get the pipe repaired.
However, this may not be covered by your policy. A number of insurers offer a "home service" arrangement, whereby they help you locate a reputable tradesman, in which case the work will be paid for. Otherwise you will have to foot the repair bill yourself.
Other damage, perhaps to the roof caused by "weight of snow", can constitute storm damage and so will also be covered under most household policies.
However, insurers can sometimes try to void or cut claims by arguing that the householder was partly liable for failing to maintain their property adequately. The Financial Ombudsman's office deals with many such cases each winter.
A spokesman for the Ombudsman's office explained that when deciding such disputes they apply the "but for" test. He said: "The 'but for' test involves posing the question 'but for occurrence X, would Y have resulted?' The answer should reveal the likely cause of the damage. However, much will depend on the evidence presented to us, such as loss adjusters' reports and expert evidence. Applying common sense normally resolves the matter."
CAN I SUE AFTER A FALL?
This depends on where the accident takes place. Unfortunately, these claims can easily slip into grey areas of the law.
If you have an accident at work, then your claim will probably be straightforward and met under workplace regulations.
Where you have slipped on the public footpath, it is not so clear and will depend on whether you can prove negligence.
Section 34 of the Roads (Scotland) Act 1984 says that a roads authority must take reasonable steps to prevent snow and ice endangering the safe passage of pedestrians or vehicles over public roads. This would include clearing and gritting the pavements and roads.
In discharging this duty, they are entitled to draw up a priority plan. If they can show this plan is reasonable and they have stuck to it, then it is questionable whether a claim will succeed.
So, for example, a local authority may have three categories of priority. If you have a fall because the third category has not been gritted while the first two have, according to timetable, your claim may fail because the authority will not be shown to be negligent.
On the other hand, if your accident happened in the top priority category, which should have been cleared or gritted, then you may succeed. You need to check the local authority's policy.
Similarly, you might have a claim against other property owners if you slip on their land, again provided you can establish they failed to take reasonable steps for your safety.
Fyfe Ireland associate solicitor Paul Donnachie said: "There was an interesting case in 2003 (McCondichie v Mains Medical Centre) where a lady patient at a medical practice slipped on ice in her medical practice's car park, while trying to attend an appointment. As the practice was a place of work she tried to sue under the workplace regulations. The court ruled that these did not apply to non-workers, only to workers.
"However, her claim also failed under the Occupiers Liability Act (see below] because the medical centre satisfied the court it had a reasonable system in place for the treatment of ice in the car park. The fact that the lady fell did not in the judge's opinion indicate that this had not been carried out thoroughly.
"The practice had spread grit and salt, and in doing so had reduced the risk, although it did not provide a guarantee no-one would slip. Her claim therefore failed the legal test that no reasonable steps had been taken."
According to the Association of Train Operating Companies (Atoc), if you arrive at your destination over an hour late you should get a full refund on the ticket, although this varies by operator. If you're half an hour delayed you may get half your fare back.
If you have a season ticket and can't travel, Atoc says each train operator may offer refunds, though each will have different rules, so contact the relevant firm.
If holiday or travel plans are disrupted because of snowy conditions, or you miss your flight due to adverse weather, you should be able to claim compensation.
If an airline cancels your flight, or a tour operator your package holiday, then they should offer you an alternative or refund.
Under EU regulations, if your flight is delayed by more than five hours, you can choose not to travel and get a refund for that trip and for later flights on the same ticket. You should get food if stuck at the airport for more than two hours for a short-haul flight, and for up to four hours on medium or long haul. You may also get overnight accommodation if the airline knows in advance your delay will stretch through the night.
If you paid for the ticket using your credit card you may have a claim against the bank under the Consumer Credit Act.
Most holiday insurance policies also provide compensation for disrupted holidays. You can receive a payment for the disruption of your trip if it is delayed by so many hours, and if the delay lasts longer you then have the right to cancel.
However, if you made your holiday plans and bought the insurance where there were clear warnings of bad weather then the claim may fail.
COLD WEATHER PAYMENTS
IF YOU are on a low income, certain benefits or receive pension credit you could qualify for 25 when the average temperature where you live is recorded as, or forecast to be, 0C or below for seven consecutive days. Many parts of Scotland now qualify for three such top-ups.
To check out how much you could be due, type your postcode into http://pensions.direct.gov.uk/en/cold-weather-payment/home.asp and it will supply you with full details.
INSURERS have reported receiving a large number of calls, but do not expect a huge increase in accident claims.
A Direct Line spokeswoman said: "We have been inundated with calls to our Green Flag recovery service. We received double the normal cries for help on the first day back to work.
"However, when it comes to car accidents the numbers are much less dramatic. Certainly we are seeing a large number of shunts and minor bumps, but because the number of motorists on the road is so much lower than normal, the accident claims may not look too dramatic in the end."
Most common have been slides and shunts, either involving a single car skidding off the road or a few cars sliding into each other.
The good news is that the weather, or driving against police advice, won't nullify insurance, so claims will be met as normal. But claimants will still lose their "no claims bonus" and see premiums rise.
Severe weather does not mitigate responsibility for causing a crash. However, there are exceptions. If you leave the keys in the car while it is defrosting on the drive and it is stolen, your insurer will not pay up, as you did not take due care.
Similarly, if you have only third-party cover, and no other driver was involved or could be blamed, then you will have to meet car repairs yourself.
Those driving older cars may also regret venturing on to the roads. If the insurer decides it is too expensive to repair your vehicle, it will write it off and send you a cheque for the proceeds, which is unlikely to cover the cost of a replacement car. Also be wary of insurers who try to reduce the payout by arguing the accident was caused because the car was in a poor condition. Complain to the Financial Ombudsman if necessary. He will apply the same rules as with household claims (see above).
It may be possible to claim against the local authority if it should have gritted roads and failed to do so. The law applies equally to drivers as to pedestrians (see compensation for falling). Finally, motorists are being advised to watch out for potholes as the ice breaks up road surfaces. Those whose cars are damaged by potholes should claim against the local authority, not their insurance.
Mark Monteiro, insurance expert at uSwitch.com, said: "Motorists are experiencing an extremely bumpy start to 2010. The increasing appearance of potholes is pushing road damage to a third higher than levels normal at this time of year.
"Potholes are a major cause of axle and suspension failure, which account for a third of all mechanical issues on UK roads and cost motorists about 3 billion a year. The number of insurance claims for damage caused by potholes is likely to rocket. With the average repair cost amounting to 240 and some bills as high as 2,710, this could send premiums soaring.
"If a driver does run into problems, they should take a photo of the pothole, of the damage to the car, and the surrounding area to prove the absence of warning signs or cones. Next, report the damaged road surface to the local authority's highways department, and claim for compensation to cover the cost of repairs."
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Weather for Edinburgh
Saturday 18 May 2013
Temperature: 9 C to 13 C
Wind Speed: 18 mph
Wind direction: North east
Temperature: 9 C to 18 C
Wind Speed: 8 mph
Wind direction: North east