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Old 19th Jan 2007, 20:27   #1 (permalink)
 
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Falling Tree - liability for damage

BB's car had a close encounter with high winds and a tree the other day. Luckily the car was parked up at work and I wasn't anywhere near it.

The tree was in an adjoining public car park operated and owned by the local council. A car in that car park took most of the force but myself and 2 colleagues have been left with our cars scratched and dented and facing insurance excess bills of 500+ as well as, in my case, loss of my no-claims bonus..

Can the council ne held liable for this? My insurer says its an act of god but does any legal eagle here have any ideas? Presumably we would have to prove negligence by the council?
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Old 19th Jan 2007, 20:42   #2 (permalink)
 
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There is indeed now case law about this sort of thing.

A couple of years ago a family went for a walk on National Trust parkland on a day of gale force wind.

a tree came down and the son of the family was unfortunately killed.

An HSE prosecution followed and the National Trust were found guilty of negligence because they could not produce inspection records of their forest areas, despite it being plain commonsense to stay away from mature woodlands in such conditions. Needless to say that parkland is closed until midnight tomorrow at the moment

The net result is corporate and public bodies recently setting up producable inspection records for all their woodlands so that if anything like this happens they can say - "Here's our inspection report - we found no trees that were not healthy or could be a danger, in all but worst case scenarios - we have, we believe discharged our responsibilites as property occupiers - you must look to your own insurers"

Your insurance company is probably anticipating that and I would not disagree with them.
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Old 19th Jan 2007, 20:55   #3 (permalink)
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To prove liability you have to prove negligence. If reports of the tree(s) being dangerous had been made and they hadn't reacted with an inspection (by a qualified authority), then you could have a case, otherwise I'm afraid you'll be p1$$ing in the wind . . .
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Old 19th Jan 2007, 20:57   #4 (permalink)
 
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Here's the human story.

http://www.manchestereveningnews.co....gedy_tree.html

His mum & dad leave a note and a few toys on the stump each new year.

The tree's have been there hundreds of years, but I'm not sure how this could have been forseen. Can't help but noticing the local authorities are a bit more keen to chop down the elder trees these days.
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Old 19th Jan 2007, 21:17   #5 (permalink)

...the thin end thereof
 
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If there was a potential claim, it would be against the Council and it would be for negligence. Not enough facts here but on the face of it it looks unlikely.

To succeed in proving negligence, you must show three things:

1. Duty of care on the part of the defendant (the council). No problem there, they owe a duty to ensure the safety of the public and their property as they are responsible for all council owned property.

2. Breach of duty. The key question here is "Did the council fall below the standard of care to be expected by the reasonable Local Authority?" This is where you will have problems. Unless the council were or should have been aware the tree was in a dangerous state, it will be very hard to prove breach. There must be a reasonable forseeabillity of the harm. If you can't prove that (on the balance of probabilities) the council could reasonably have forseen that this tree would fall in a violent storm and cause damage to persons or property, you are going to have problems. The council can show they could not have forseen this if they carry out inspections of the trees on a regular basis. As TBirdFrank says, it's almost certain that they do carry out these inspections and have the paperwork to prove it. That alone is likely to discharge their liability.

3. Causation - Did the breach cause the loss or harm suffered? If there is no breach, there can't be causation. In the unlikely event in this case that you could prove a breach, you would have to show that the 'chain of causation' was not broken so that the defendant could be held liable for causing the harm through their breach. You'd probably be able to show that pretty easily in a case about a tree falling from a Council car park onto a car, since cars tend to be a common sight in car parks.

So in short - the insurers are probably right. Act of god - no claim unless you can show the council knew or should have known that the tree was dangerous in advance. Obviously the law is not going to hold the occupier liable for damage caused by every tree that falls in a storm.

Last edited by Wedge; 19th Jan 2007 at 21:39.
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Old 19th Jan 2007, 21:30   #6 (permalink)

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Council probably inspect all trees on something like a three year cycle (they do round here, I get an incredibly detailed list of all the work that needs doing to each tree in my ward). Possibly hard to prove that they didn't do it properly.
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Old 19th Jan 2007, 21:46   #7 (permalink)
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KAAAA---CHING !! $$$$$$$$



One must not forget the ....erm.....$10-20k? you will be out of pocket for the good advice of a Wedge
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Old 20th Jan 2007, 13:41   #8 (permalink)
 
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Thanks for the replies and Wedge's detailed advice which confirms my own thinking.

I did see the council trim/thin the tree a few years ago which seems to show they were keeping an eye on it. I also suspect they could also argue that they could not reasonably foresee winds of 90 mph..

thanks again
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Old 20th Jan 2007, 19:50   #9 (permalink)
 
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I would write a letter to them anyway because they might just pay out. What have you got to lose?

Besides it might not have been the tree that was the cause of the problem. Maybe it could be down to the lack of drainage which made the ground so soft the tree couldn't stay upright... You need to be inventive
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Old 21st Jan 2007, 11:01   #10 (permalink)
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Wedge,

You certainly sound authoritative about this but it doesn't sound RIGHT. In the sense that if my tree, or a bit of my house fell on somebody or their property I would expect my insurance to cover it.

I can not believe that if, for example, some extraneous effect (ice forming on the road, perhaps) allowed my car to run downhill and hit someone, they would not be able to claim as I had not been negligent.

UFO
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Old 21st Jan 2007, 12:15   #11 (permalink)
zfw
 
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" My insurer says its an act of god "

What happens if you're an atheist and do not believe in God?????????

Is God then liable,or does the Insurance company have to prove that God exists.

zfw
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Old 21st Jan 2007, 12:26   #12 (permalink)

...the thin end thereof
 
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Is God then liable,or does the Insurance company have to prove that God exists.

Despite numerous attempts by claimants to call him as a witness, he's not yet appeared in Court to give evidence. Somewhat surprising as he has been held liable for more accidental damage than anyone else in the world.

UFO

Fair questions:

In the sense that if my tree, or a bit of my house fell on somebody or their property I would expect my insurance to cover it.

Unless you are at fault, ie negligent, your insurance will not cover you for damage to third parties. Certainly for motor insurance. I don't know if house contents insurance is wider, but it would be discretionary if it is.

I can not believe that if, for example, some extraneous effect (ice forming on the road, perhaps) allowed my car to run downhill and hit someone, they would not be able to claim as I had not been negligent.

Unless you had 'fallen below the standard of the reasonable driver' - eg failed to secure the handbrake properly, you would not be negligent. There has to be an element of culpability on the part of the defendant - if there were not it would be possible to sue almost anybody for any damage to their person or property. Your insurers cover you at a legal minimum for damage you cause to third parties by your negligence. If your neighbour's tree, or a tree in the street falls on your car you are only covered for the damage if you have comprehensive insurance unless the occupier has been negligent.

BB obviously has fully comp cover but still unfortunately has to pay the excess and will lose his NCD because there is (probably) no third party at fault in this case.

Last edited by Wedge; 21st Jan 2007 at 12:39.
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Old 21st Jan 2007, 12:36   #13 (permalink)
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If recent events be deemed 'Acts of God', does that prove the existence of said Deity? One cannot deny the evidence of the events as a reality.
On the other hand, if God existed, would he not have an Office wherein one could lodge claims against Him for the damage caused.
Oh! just realised that there ARE such Offices placed at strategic locations (throughout the Western World at least), called Churches . . .
Wonder if they'll pay for damage to BB's car? Might be worth a try . . .
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Old 21st Jan 2007, 12:41   #14 (permalink)
zfw
 
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So BB

All claims should be sent to ..................

The Pope
c/o The Vatican
Rome

Might as well go to the top no point in dealing with the minions.

zfw
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Old 21st Jan 2007, 17:28   #15 (permalink)
 
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Sue God eh? Interesting idea but to which Church should I send the claim? C of E, Anglican, Methodist, Baptist??

Having hit my car with a tree he might take offence from my claim and next make sure the tree hits me!

Don't think I'll take the risk thanks...
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Old 21st Jan 2007, 21:10   #16 (permalink)
 
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It has already been tried, "The Man Who Sued God" starring Billie Connolly.

As far as I can remember, he failed to prove there was a conspiracy between the law and the church.
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Old 21st Jan 2007, 21:46   #17 (permalink)
 
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Last July we suffered a pretty serious fire caused by a horsebox which was stored on the farm bursting into flames all by itself.

It turns out that all parties who have suffered damage either have to bear their own loss, or can only claim on their own insurance, as unless we can prove negligence against the horseboxowner he has no liability to any third party who has suffered loss - so what's all that third party and fire business mentioned in the policy supposed to cover??? - I think I am best to describe this situation as "proceeding"
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Old 22nd Jan 2007, 01:23   #18 (permalink)

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Unfortunately the situation is the same, you have to prove the horsebox owner was negligent in order to recover from their insurers.

Alternatively there is a possibility here of suing the manufacturer of the horsebox, but you'd have to show the manufacturer was negligent in some way. Because it's a consumer product that may be at fault I think the Consumer Protection Act (CPA) comes into play but I can't remember the detail of the rules off the top of my head.

Re: the insurance policy: On a 'Third Party, Fire and Theft' policy, you are covered for your negligence against third parties for their losses. Third party cover is the legal minimum cover you must have. The 'Fire and Theft' bit allows you to recover from your insurers for fire damage or loss through theft from or of your car - which means you lose your NCD and must pay the excess, unfortunately.

In a case where an accident is the fault of another, you can recover from their insurers for your excess and won't lose your NCD - and that's what the 'third party' bit refers to. Obviously if you have comprehensive cover you are insured for the same plus accidental damage and damage which is your fault.
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Old 22nd Jan 2007, 09:48   #19 (permalink)
 
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It all depends on the condition of the tree and how much that condition contributed to its toppling.
If you have a tree which is showing signs of rot then you really do have a duty of care to do something about it if its collapse could reasonably be expected to be a hazard to third parties. If you simply let it fall onto someone or their property, then your insurer is unlikely to pay you if you are sued.
The first thing an insurance company claims investigator will do is inspect the cross section of the tree's trunk and boughs to look for any signs of pre-existing fungal rot. He s/he finds any, you can forget about having the company meet the cost of your claim.
The only way to properly protect yourself is to hire a qualified and accredited tree surgeon to make a survey of the mature trees. If he recommends lopping/topping, or even removing a tree, then it really is in your best interest to do so. Make sure that you get a written and dated report and that you keep the original. Repeat the survey every 5 to 10 years. The cost of doing this is a miniscule fraction of what you might be sued for if a high earner should drive into a tree which has toppled from your property onto a neighbour or public road.
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Old 22nd Jan 2007, 14:03   #20 (permalink)
 
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Re the self igniting horsebox - it was a Leyland Daf Road Runner 45 which had the battery box and fuel tank mounted directly adjacent to each other. That is how some models left Farington works so it was as built.

Box was bought after conversion - from what I am not aware - and owned for approx nine weeks before the fire. It spent much of that time coupled up to a battery charger to keep it going - (wiring fault?)

Three hours after being parked up on returning from a seventy mile run on the hottest night of the year - boom - instant inferno.

The fire brigade said that they suspect a battery explosion and certainly the end of the fuel tank was ruptured - right by the battery box - when the written off wreck was extracted from the ruins.

My tack is going to be that there was a latent fault that had manifested itself in the need to keep the thing on charge and that a prudent owner should have had the circuits and batteries tested to check out any faults

Failure to do that = negligence - worth a try don't you think?
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