Damage to garden by neighbour's falling tree - Insurer changing position on coverage

[Pezza54]

It does sound as if you are going to have to make a negligence claim against your neighbour for failing to attend to a precarious slanting tree
Obtain pictures of the tree from streetview in case it is updated without the tree showing.
Contact the tree surgeon you spoke to who said he was concerned about the state of the tree and ask if he is prepared to put his opinion in writing for a court claim

[Edinburgh24]

Thanks.

I already have the pictures stored.

The tree guy has done work for both of us so probably won’t be comfortable getting involved. The neighbour thought this guy had trimmed the tree that fell but he says he hasn’t. The neighbour thinks having the tree trimmed covers him for looking after the tree but having it trimmed is not the same as having as having an arborist examine it for safety.

The view of an insurance company would normally be that if wind does not reach 55mph then a tree that falls can be assumed to have something wrong with it, unless you have a report showing it was in good condition. Indeed Admiral said they might even argue that above that speed a healthy tree should not just fall.

On the basis of this from an insurance point of view the assumption would be that there was something wrong with the tree and the neighbour was negligent by not having it surveyed and dealt with if necessary. Of course a court may not be of the same opinion as an insurance company.

If I don’t hear from the neighbour’s insurer by the time we come back from our holiday I will start by contacting the legal cover people I have through my home insurance and seeing if they will take the case on.

[Edinburgh24]

Happy New Year Everyone,

Just landed back in the UK this morning after two weeks away, hoping to return to a letter from my neighbour's insurer.

I spoke to him on the 28th before we left. He said that his insurer's "Complex Claims" department had contacted him with a list of questions, so they are dealing with it. I hoped this meant I would hear from them by the time I got back.

As I had not heard from them, I tried calling them directly and asking what was going on. They said that they would not speak to me as the claim is still my neighbour's claim even though I have claimed against him and any correspondence will be with him. I can see this perspective, but it is somewhat unhelpful especially as he is now on holiday. I think they said in passing that they had asked him more questions so it may be that they have written to hm whilst he has been away, he told me he was going away on the 5th. I said that I would have to look to bringing legal action as they are taking too long.

I called Admiral's legal advice helpline. I think this is provided by a company called Arag. The person I spoke to there was somewhat unhelpful. They said that a tree falling was an act of God and I would have to prove negligence on their part. I said that most insurance companies seem to be of the view that if wind does not reach 55mph then a falling tree would be assumed to have a problem with it, but they were adamant that in any circumstance, no matter what the windspeed this would be considered an Act of God. Of course I have no idea what qualifications if any they have. From my understanding of similar claims of this nature the defence is usually that the tree has been inspected and deemed safe and the onus has not been on the claimant to prove negligence, negligence has been assumed when windows have been below a specified level. This may more guidance used by insurance companies than legal precedent.

Despite this they said that I could fill in a claim form to bring a claim against the neighbour and someone would look at it. They will pay to bring action if they believe it has 51% chance of succeeding.

At the moment, frustrated as I am, it seems that I should wait the few days it takes for my neighbour's to get home to see what their insurer has said to them.

[Edinburgh24]

I have finally received a response from my neighbour's insurers.

This is their response, copied directly from their letter, I have added the numbers.

1. The claim you are making seeks to hold our client (the defendant) legally liable for the damages caused to your property. As their home insurers, we will be handling this matter on their behalf.

2. Please be advised that there is no automatic right to compensation in situations like this. For your claim against our insured to be successful, you must first prove that the damage was caused by our insured’s negligence.

Our client cannot be held accountable for the damage to your property as the damage did not result from their negligent actions or omissions.

3. While we acknowledge that an incident occurred, it is important to note that this is not a matter of strict liability; therefore, liability does not automatically attach. In any event giving there were gale force gusts recorded for the area the most likely cause of damage is the weather rather negligent action or omission carried out by our customer.

I note that they do not point to any specific defences, such as the exact wind speed or that the tree had previously been inspected.

I would also note, that the Occupiers' Liability Act (Scotland) 1960 appears to incorporate a higher duty of care than negligence, instead an occupier of land has a duty of care, see the case mentioned below. I do not believe that the tree had been inspected.

Caminer v Northern and London Investment Trust Ltd 1951: Found that the tree owner is not
expected to guarantee that the tree is safe. The owner has to take only reasonable care such as
could be expected of “the reasonable and prudent landowner”

My thinking is that I should now have an arborist prepare a report into what may have caused the tree to fall. If they say it could not have been foreseen, fair enough, but if they say that there were circumstances that make it likely then I will go back to the insurer with this.

Or should I just go back to the insurer with the Occupiers Liability Act (Scotland) 1960 and ask if they can provide any evidence of the tree ever having been inspected? As if not it seems they have failed in their duty of care which is the standard enshrined in the law?

I don't think this is necessarily useful, but in the recent much higher winds, they had another tree fall in exactly the same way. It did not break, but was uprooted as it was on the edge of their raised garden. It fell into their next-door neighbour's driveway.

Any thoughts?

[Edinburgh24]

Hopefully someone can opine on this before I go to a lawyer.

I commissioned a report from an arborist on the likelihood of the tree falling based on the available pictures of the tree.

Here is an excerpt from the report -

The tree had a pronounced lean over the road and given the above would no doubt
have been assessed by any competent tree surveyor as being potentially dangerous and
mitigating actions recommended.

Reasonable recommendations in the above scenario would likely be to:

1. Significantly reduce the canopy to reduce wind loading

2. Employ decay detection techniques to further assess risk

3. Remove tree

The tree failing was predictable given its lean, the size of the tree / canopy form /
weight distribution, constrained root zone and large open wound close to the base of
the tree. Evidence of fungal fruiting bodies would provide further evidence of advanced
decay, we do not have this evidence.

I wrote back to the insurer stating -

1. I believed that client had failed in their Duty of Care based on the Occupiers' Liability(Scotland) Act 1960 considering the many reasons that might make you consider the tree represented a high risk.

2. Considering the tree surgeon's report did they have any evidence that the tree had been inspected by a competent person and if not I would assume that their client had failed in their duty of care.

I received their response today -

Our client has confirmed that the tree was regularly maintained by his gardener and that a few years ago, a tree surgeon examined it and pruned some overhanging branches. At that time, the tree was healthy, disease-free, and in good condition.

Additionally, our client was not made aware of any concerns about the tree by any third party.

For our client to be deemed negligent, there must have been foreseeability of this incident, and the incident must have been preventable. This principle is supported by the case of Caparo Industries plc v Dickman [1990] 2 AC 605, which established the three-part test for negligence: duty of care, breach of that duty, and resulting damage.

While it is unfortunate that our client's property has caused damage to yours, the damage occurred during nationwide storms. Our client cannot be held accountable for damage caused by the weather. This aligns with the principle established in Nichols v Marsland (1876) 2 Ex D 1, where it was held that a defendant is not liable for damage caused by an act of God, such as extreme weather conditions.

Based on the above, I have maintained my original decision to deny liability. I trust this clarifies our position on the matter.

Based on the report that I have, I think the incident meets the principles of Capro v Dickman.

I note that the did not actually provide any evidence of the tree being inspected or pruned, only a very vague reference to it being looked at "a few years ago".

They also reference "nationwide storms". This again seems suspicious as why would you not reference the specific conditions in the area.

The question I have to ask, is does my case seem strong enough to pursue legally?

I am tempted to file a claim using the Simple Procedure in Scotland. Although this is limited to £5000, my concern would be that the possibility of costs being awarded in a larger claim skews the risk reward somewhat.

Thanks for any advice