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Legal Question wanted answering



N

Neil

Eastie
Aug 27, 2010
729
Langney
My son got a tree surgeon who was a friend of a neighbour to fell 2 large trees from my sons garden in February .
When they were felled into his garden the crash of the trunk hitting the ground caused a rotten branch from an adjoining tree to fall to the ground and hit a car driving down a road at the side of his property .
The tree sugeon left his name and number to the driver and that was that.
8 MONTHS later the tree surgeon gets in contact with my son and says the person who owns the car wants £3000 for the damage to his car.
Apparantly as the tree surgeon was doing it as a cash sale and not for his employer he isn't covered for insurance.
Where does my son stand on this as it seems a bit fishy to me.

1/ Is it down to the tree surgeon even though he was doing it himself?
2/ is 8 months too long after the incident and should the driver had contacted his car insurance and come back sooner regarding damage?
3/ As it was from another tree and not the felled tree is it classed as a act of god ?
 




N

NooBHA

Well-known member
Jan 13, 2015
8,584
Neil said:
My son got a tree surgeon who was a friend of a neighbour to fell 2 large trees from my sons garden in February .
When they were felled into his garden the crash of the trunk hitting the ground caused a rotten branch from an adjoining tree to fall to the ground and hit a car driving down a road at the side of his property .
The tree sugeon left his name and number to the driver and that was that.
8 MONTHS later the tree surgeon gets in contact with my son and says the person who owns the car wants £3000 for the damage to his car.
Apparantly as the tree surgeon was doing it as a cash sale and not for his employer he isn't covered for insurance.
Where does my son stand on this as it seems a bit fishy to me.

1/ Is it down to the tree surgeon even though he was doing it himself?
2/ is 8 months too long after the incident and should the driver had contacted his car insurance and come back sooner regarding damage?
3/ As it was from another tree and not the felled tree is it classed as a act of god ?
Click to expand...

That is not a cut and dried issue. - Pardon the punn

The liability falls with either your son or the tree surgeon. Whoever is event held responsible from those two could potentially and successfully sue the other in a knock on secondary litigation. It is definitely not too long after the incident although when defending the Action it is a very valid question to ask. If they claim they were seeking advice, you could ask them for some sort of proof that they were actually seeking advice during that time frame

My question in all of this is. Do you really have any proof that the damage was done at all and that the tree surgeon is not in some sort of scam with each other. It does sound a bit weird and fishy to me as well Are either the driver and or the tree surgeon from Liverpool by any chance ????

I would let them sue and respond to any legal letters with one line answer that ''I am of the opinion that the liability is that of the tree surgeon who felled the tree and that any litigation should be directed to him''

There are lots of scams out there now and loads of lawyers only too ready and willing to facilitate the scams
 




beorhthelm

beorhthelm

A. Virgo, Football Genius
Jul 21, 2003
35,300
i happen to read of a similar example only this weekend. if it was the tree being cut, the tree surgeon is liable, he should have turned down the work if he wasnt insured, he accepted the liability. if it was a indirect consequence... good luck with that one, reckon the adjusters and solicters fees will come to more the £3k.
 


drew

drew

Drew
Oct 3, 2006
23,048
Burgess Hill
Vegas Seagull said:
Incredible that trees big enough to kill were cut down with no regard to passers by being cordoned off.
Click to expand...

Think this is most pertinent.

As for the incident, the guy is described as a tree surgeon but he certainly didn't really plan it very well. Perils of doing something on the cheap. The damage was caused by someone employed by your son so he may well have cover under his property owners/occupiers liability cover under the household policy. Worth ringing the legal helpline for the policy to get some proper advice.
 




K

kjgood

Well-known member
Nov 11, 2008
997
Brynna South Wales (And I'm not Welsh either!)
The liability initially seems to be with the tree surgeon as your son would have the right to expect a professional standard of work that would include producing safe systems of work, risk assessments, protecting property etc.etc. and having the necessary public liability insurances in place. Obviously there were gaps in this process as a trunk wouldn't have hit the ground hard enough to cause a branch to have fallen onto the highway if a proper risk assessment process had been completed.

However saying that there is an onus on your son under the new CDM Regs to ensure that these assessments had taken place and any precautions required taken, including checking insurance details and the qualifications and training records of the person doing the work.

If the surgeon had given the impression that he was working for his company whilst doing the work, I would tell the surgeon that I was contacting the his company to discuss the claim and see what his reaction is. I'm guessing though the real scenario goes something like this........ Hello Mr X, If I quote for Company A to do the work it'll cost you £3,000, however as your a mate of my mate, I'll come round on Saturday and do it for you for £1,500 cash in hand. Let the buyer beware.
 




happypig

happypig

Staring at the rude boys
May 23, 2009
7,959
Eastbourne
I will offer you he same advice as I offer everyone else; see a solicitor
 








Eeyore

Eeyore

Colonel Hee-Haw of Queen's Park
NSC Patron
Apr 5, 2014
23,530
Did the Tree Surgeon advertise his services, and get employed in good faith ?

If so, it is his liability.
 






glasfryn

glasfryn

cleaning up cat sick
Nov 29, 2005
20,261
somewhere in Eastbourne
thought you needed a license or permission to fell a tree wherever it is?
 








S

Shropshire Seagull

Well-known member
Nov 5, 2004
8,496
Telford
Take a step back - Insurance is purchased to cover for accidental damage [unintentional] - in most circumstances this equates to negligence.

So, the plaintiff [the geezer who's car got damaged] has to prove on the balance of probability [because negligence is a tort not a crime - usually] that there was negligence - I assume he has photos and expert witness?

Whenever any tradesman carries out work, his workmanship is at risk of negligence - and the smart ones take out third party liability insurance for if / when things go wrong. If the tradesman is not insured, he will be personally liable, if he is a sole trader rather than a limited company he is at risk of being sued for all his worldly goods [but only up to the amount of the plaintiff's loss].

I'm not a solicitor, but I fail to see how the property owner is responsible for someone else's [negligent] actions.
Step one for me is probability that another falling tree was indeed the cause of another tree branch falling ... can that be proved "beyond the balance of probability" - if not, there is no case of negligence and we're into "force majeure" [act of nature] which can only be compensated by insurance [and where the policy includes force majeure - this is typically building and contents cover for property [have a read of your policy].

Ditto Happy Pig's advice .... seek advice from a solicitor - maybe citizen's advice could offer a view?
 


drew

drew

Drew
Oct 3, 2006
23,048
Burgess Hill
Shropshire Seagull said:
Take a step back - Insurance is purchased to cover for accidental damage [unintentional] - in most circumstances this equates to negligence.

So, the plaintiff [the geezer who's car got damaged] has to prove on the balance of probability [because negligence is a tort not a crime - usually] that there was negligence - I assume he has photos and expert witness?

Whenever any tradesman carries out work, his workmanship is at risk of negligence - and the smart ones take out third party liability insurance for if / when things go wrong. If the tradesman is not insured, he will be personally liable, if he is a sole trader rather than a limited company he is at risk of being sued for all his worldly goods [but only up to the amount of the plaintiff's loss].

I'm not a solicitor, but I fail to see how the property owner is responsible for someone else's [negligent] actions.
Step one for me is probability that another falling tree was indeed the cause of another tree branch falling ... can that be proved "beyond the balance of probability" - if not, there is no case of negligence and we're into "force majeure" [act of nature] which can only be compensated by insurance [and where the policy includes force majeure - this is typically building and contents cover for property [have a read of your policy].

Ditto Happy Pig's advice .... seek advice from a solicitor - maybe citizen's advice could offer a view?
Click to expand...

The reason that I see the property owner as potentially liable is because he employed someone to do a job that it would seem he was not up to doing. If it is shown he didn't check whether he was qualified to do the job or that he undertook the correct assessments then he may be liable. A normal household policy will extend to cover your liability to third parties as a result of damage caused by you or domestic employees. The latter, according to Aviva, being defined as a person employed by you to carry out domestic duties in connection with your home and its land and not employed by you in any capacity in connection with any other business, trade or profession. If this was a cash in hand job then you could argue that he was a domestic employee. Presumably the OP's son knew it was not a formal contract with the tree surgeon's employer.

Can only presume that the car owner doesn't have Fully Comp insurance otherwise he'd claim of them and let them pursue a recovery.

The other issue is that of the time frame. The claim isn't time barred until 6 years are up however the ability to prove that all the damage is due to the fallen branch becomes harder with the delay.

Lesson to be learned is that in the event of an accident, take photos.

Would suggest the OPs son speaks to his insurers as if it is covered he wouldn't want to have it excluded for failure to notify them!
 


Super Steve Earle

Super Steve Earle

Well-known member
Feb 23, 2009
8,354
North of Brighton
NSC probably isn't the best place for legal advice. But a Cash in Hand job always carries risks because the service provider is probably trying to avoid paying tax and NI! Your son has colluded with him in this little tax avoidance scam to get a cheaper job. Unless the the tree feeler has his own little private business with books, insurance etc. I'd say your son has a problem or two here.
 






Leyton Gull

Leyton Gull

Banned
Sep 14, 2015
411
drew said:
The reason that I see the property owner as potentially liable is because he employed someone to do a job that it would seem he was not up to doing. If it is shown he didn't check whether he was qualified to do the job or that he undertook the correct assessments then he may be liable. A normal household policy will extend to cover your liability to third parties as a result of damage caused by you or domestic employees. The latter, according to Aviva, being defined as a person employed by you to carry out domestic duties in connection with your home and its land and not employed by you in any capacity in connection with any other business, trade or profession. If this was a cash in hand job then you could argue that he was a domestic employee. Presumably the OP's son knew it was not a formal contract with the tree surgeon's employer.

Can only presume that the car owner doesn't have Fully Comp insurance otherwise he'd claim of them and let them pursue a recovery.

The other issue is that of the time frame. The claim isn't time barred until 6 years are up however the ability to prove that all the damage is due to the fallen branch becomes harder with the delay.

Lesson to be learned is that in the event of an accident, take photos.

Would suggest the OPs son speaks to his insurers as if it is covered he wouldn't want to have it excluded for failure to notify them!
Click to expand...
INDEED! This is the most important thing he should do. For one, if the OP's son is held legally liable it is probably covered by the Public Liability/Occupiers Liability section of his Household Insurance Policy. Also, apart from it being a condition he notifies them, the OP's son's HH Insurers will want to/need to investigate the circumstances NOW. VERY IMPORTANT to tell them!
 


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