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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69268
Experience:  Over 5 years in practice
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My father had a diseased tree fall onto his house from neighbours

Customer Question

My father had a diseased tree fall onto his house from neighbours land. My father was not insured and Aviva the neighbour's insurance company have refused to pay. They state the onus is on us to prove that their client was negligent! I am thinking of pursuing him through the small claims court as a last result, can you help or make any suggestions or avenues I can try? Thank you Jane
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

What is the cost to rectify the damage please?
Customer: replied 2 years ago.

This claim has been on going for 3 years, The cost of damage is hard to calculate as the tree fell on the garage and we have not entered as it may all tumble and without knowing the damage cost is covered we have left it. We would estimate a cost of around 10 to 15k

Expert:  Jo C. replied 2 years ago.

You have to prove that the owner has been negligent. The insurance company is correct in that respect.

You issue legal proceedings against the neighbour and the neighbour may pass them on to his insurer which may choose to deal with it or not. They may choose to defend it, or settle.

If they refuse to deal with it, you must sue the neighbour.

You will need to prove as I said earlier, that the neighbour has been negligent.

Just because a tree blew down does not necessarily mean that the neighbour has been negligent. You would have to prove that the tree was diseased, that the neighbour failed to maintain the tree and that as a result of the failure to maintain, it blew down.

You would also have to prove not only that the disease caused the tree to blow down, but also that the disease would be visible on a reasonable inspection.

If a perfectly healthy tree blows down because the winds are so severe as to uproot perfectly healthy trees, there is no claim against the tree owner in negligence.

I can see no reason however why this should have been going on for three years.

You need a report from a tree surgeon which confirms the condition of the tree and confirms that this was reasonably foreseeable and that it could have been avoided. Armed with that, you can issue legal proceedings against the owner and it is for the owner to decide whether he wants to deal with it himself or his insurance company. If the insurance company will not deal with it for him, he deals with it himself.

If the amount claimed is over £10,000, it will not be Small Claims Court and your father will have to pay the legal costs if he loses, but by the same token, he would recover his legal costs if he wins.

Can I clarify anything for you?

Customer: replied 2 years ago.

Thank you for your response. can you clarify how I proceed in taking the neighbour to court and the maximum we could apply for. I know I need to get a wiggle on. Is there any other advice you could provide me with? Thank you

Expert:  Jo C. replied 2 years ago.
Check your house insurance to see if you have legal expenses cover that would pay for the legal costs.

If the incident has already gone past its third birthday, you are too late to issue proceedings in negligence under the Limitation Act as the time limit for bringing such claims is three years.

Presuming it is still within time, you need to put together a schedule of loss along with experts evidence and issue proceedings in the County Court.

Don't issue proceedings without thinking about this extremely carefully because if you lose, you will have to pay the defendant's costs for defending the claim.

It would be worth speaking to a few solicitors to see if you can get one who will deal with this on a no win no fee basis.

Use form N1 from the county court. Form EX50 contains all fees.

Please remember to leave feedback for my answer.
Jo C., Barrister
Category: Law
Satisfied Customers: 69268
Experience: Over 5 years in practice
Jo C. and other Law Specialists are ready to help you
Customer: replied 2 years ago.

I think it is over 3 years this last Feb, so that's not good news. I know that if my father had had house insurance we would not be in this position but taking on an Aviva would not be easy. Can you suggest any alternatives please?

Expert:  Jo C. replied 2 years ago.
I'm out at court at the moment but I can look at this when I get home if thats OK?
Customer: replied 2 years ago.

Hello, your response has not come through.

Expert:  Jo C. replied 2 years ago.
Sorry not sure why that is I will check and get back to you

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