Our safe wasn't so safe

Your legal questions answered

By Jonathan Goldberg, August 30, 2012

Maya from Radlett writes:
My husband and I are in the process of renovating a large detached house set in beautiful gardens, but with the drawback (as it now turns out) that we are isolated from our nearest neighbours. We have lived here for five months. We just returned from our summer holidays abroad to find the house had been burgled. They entered by forcing our upstairs bedroom window. It seems they were then disturbed by the alarm going off. They left by the same window, without apparently going into any other room in the house.

We had built a small combination safe into a wall within the main closet, which we had not yet got round to concealing further, as we intended to do. It is not a particularly expensive safe but it is by a well-known manufacturer, and we were assured by the security company who supplied it that it would do the job. They gave us advertising literature which convinced us this model would be adequate for our needs. We had definitely set our own combination which we have been using regularly since, but by some fluke, the burglars managed to open it by using the original factory default setting of four zeros. They stole a sizable amount of cash and my best jewellery.

Our insurers have not yet pronounced finally but they are suggesting they may not be liable because of our negligence. They are implying we did not set our own combination and that we should have concealed the safe better. Can you please advise how best to proceed?

Maya, I sympathise with you. You might be interested to know that the notorious phone hacking scandal which led to the Leveson inquiry and the downfall of the News of the World, involved nothing more sophisticated than reporters hacking into voice messages by inserting the factory default code. It is an incredible fact that most people never bother to change it.

A number of legal issues arise here. Let us begin with the safe itself. You say that you did change the code and that you have successfully used your new code since. If so, logic suggests there must be a fault in the unit which has caused it to continue to recognise also the factory default code. I advise you to obtain an expert forensic report immediately to clarify this position. If favourable, you have a strong case in breach of contract for the value of your losses against the security company which supplied it.

Whether you can also sue the manufacturers if the supplier is not worth powder and shot is a far more complex legal issue. I do not think it was negligent of you not to conceal the safe better, but I hope that the expert will not conclude you failed to set your code correctly. If so, you may be unable to recover due to your own negligence, unless it were possible to argue, for example, that the instructions accompanying the safe were incomprehensible or misleading.

The next issue concerns your contents insurance and here it may well pay you to hire loss assessors to act for you. They normally charge a percentage of what they recover, but the insurers tend to listen to them more than to the policyholder acting alone.

We live in an age where insurers are much quicker to seize on any reason to avoid paying out, than was once the norm. It does not necessarily follow that the insurers will be entitled to avoid your claim, even if you or your husband did in truth fail to set the code correctly. This will depend on the exact policy terms. Some policies exclude losses due to the policyholder’s failure to protect his property carefully. Others do not. If you have a policy of the latter type, you need not bother about going against the supplier or manufacturer of the safe, since your insurers will be primarily liable. Obviously you cannot ever seek double recovery for your losses.

Last but not least, Maya, your local police station offers a free service whereby a crime prevention officer will advise you how best to protect your house. Most burglaries are opportunistic. Effective security which is prominently displayed will usually persuade a would-be burglar to look elsewhere for an easier target.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.GoldbergQC.com

Last updated: 2:40pm, January 4 2013