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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 10649
Experience:  30 years as a practising solicitor.
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This is a personal public liability claim. My car was written

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This is a personal public liability claim. My car was written off by a felled tree in higher than normal winds in a public carpark. The car had third party insurance and the insurance company is unwilling or unable to pursue the claim on my behalf. I have composed a letter of claim to the public liablitity insurance of the organisation who is responsible for the maintainance of the tree which wrote off my car. But before I pursue the claim in the magistrates court I want to know if I have an above average chance of winning. My current understanding is the organisation will defend with act of God. My claim will be based on proving negligence. I need to know whether the facts I can demonstrate are sufficient grounds to prove negligence.If there is an attachment facility I would like to attach my letter of claim also.
Submitted: 1 year ago.
Category: Law
Expert:  JGM replied 1 year ago.
What negligence are you alleging on the part of the council?
Customer: replied 1 year ago.
that the tree was not properly maintained.
Customer: replied 1 year ago.
please find attached my claim letter
Expert:  JGM replied 1 year ago.
If you can establish that the tree wasn't properly maintained and that as a result of that the tree fell in the wind and your car was damaged as a result then you have reasonable prospects of success subject to your taking into account the extent of the duty of care owned by the council. There was a case in 2014 called Stagecoach South Western Trains Limited v Hind which says that a landowner's duty in respect of a tree on her land, which fell onto a railway line, had extended no further than the carrying out of periodic informal or preliminary observations or inspections, in the absence of any trigger or warning sign. You can read the case here: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2014/1891.html&query=Stagecoach+and+South+and+Western+and+Trains+and+Ltd+and+v+and+Hind&method=boolean
Customer: replied 1 year ago.
Is there a threshold for wind speed when using act of God as a defence?
Is the evidence that I wrote in my letter of claim sufficient to prove negligence?
What is the extent of duty of care required by Tara Buddhist centre in relation to protecting other peoples property on their land?
Would Tara Centre be required to give evidence that they maintained the trees properly?
Expert:  JGM replied 1 year ago.
There is no threshold. Each case is decided on its own facts. You are saying that the hollow and therefore unstable nature of the trees should have been apparent because the tree was dead and it should have been obvious to a groundsman. That would accord with the decision in the Stagecoach case. The Centre would not have to give any evidence at all but to effectively defend the action they would have to say what maintenance and checks they had in place.
Customer: replied 1 year ago.
Are you able to expand on " to effectively defend they would have have to say what maintenance and checks they had in place"
What maintenance and checks are necessary to prove they performed their duty of care?
Are they required simply to state that the grounds were monitored by a groundsman?
Expert:  JGM replied 1 year ago.
You should read the case I sent you. Should they have been able to tell from periodic and informal checks that there was something wrong with the trees? That is a question of fact which would have to be established by evidence. If they have a groundsman and if he carried out inspections and if there was nothing obvious to suggest the tree was unstable then you will lose. If on the the other hand he saw or ought to have seen something which suggested there was a problem then you will win. You should submit your letter and see what the reply is. That may tell you whether there is sufficient evidence. The groundsman may never have looked at the tree for example.
Customer: replied 1 year ago.
So my case rests on the evidence submitted by the groundsman and the quality of the photographs I took of the tree trunk after it had fallen?
Expert:  JGM replied 1 year ago.
It may do, but we don't know what that evidence is. If your photos show that the defendant ought to have known about the condition of the trees then you have a good case.
Customer: replied 1 year ago.
Would you please give me your opinion on the quality of these photos as evidence to support my case.
Customer: replied 1 year ago.
Would you please confirm that initially the claim letter should be passed onto Tara's public liability insurance via the administrative director of the centre.
Please confirm the purpose of this action is to initiate an out of court settlement and as you said to gauge the strength of my case.
In your opinion is the settlement figure I ask for reasonable?
In your opinion would it be reasonable to claim compensation for my inconvenience?
Expert:  JGM replied 1 year ago.
The photos presumably show rotted trees. The photos should be accompanied by a description in writing of each. The letter of claim goes to the other party with a request that they pass it to their insurers. The amount of compensation is for your actual losses, ie, reasonable replacement value. You can claim inconvenience, yes, repairing loss of vehicle, administrative costs and time spent on th claim.
Customer: replied 1 year ago.
Have you looked at the photos? And what is your opinion?
Expert:  JGM replied 1 year ago.
I looked at the photos. They are of limited use without further evidence, from an expert, as to the state of the trees. A court can't determine liability without evidence and your pictures won't assist a judge, or an insurance company, without some further explanation.
Customer: replied 1 year ago.
I thought the standard we are working to is what a reasonable man would do and not an expert.
Expert:  JGM replied 1 year ago.
An expert would be asked to comment on whether and how the fragile state of the trees would be known to a groundsman carrying out his normal duties as your photos don't show this one way or another.
Customer: replied 1 year ago.
I am getting slightly conflicting information. The link you sent refers to a standard of proof that a reasonable man would be expected to act on in order to fulfil their duty of care to the public. My pictures show a clear breach in the bark of the trunk of the tree which directly caused the damage for which I am claiming. I further contend that the size of the wound in the trunk of the tree shown in the pictures is large enough to be noticeable from the ground.This evidence is obvious in the pictures and I would contend is therefore obvious to the average reasonable man. From this evidence I submit that the a reasonable man who is excercising a duty of care to the public should have acted, whether it be to lop off the trunk below the wound or take expert advice from a tree surgeon or some other qualified individual. If no action can be shown to have been taken in light of the evidence as seen in these photographs prior to the wind fall, then I submit that the damage to the tree and therefore the unstable nature of the tree was ignored; therefore the party responsible for the maintenance and informal checks of these trees was negligent. What fault do you see in my argument?
Expert:  JGM replied 1 year ago.
The flaw in your argument is that your pictures aren't great and don't, using the principal of judicial knowledge, show what you think they show. A sheriff or other judge will require expert evidence to interpret the pictures. A sheriff or other judge is not an expert in trees and evidence would have to be heard as your pictures aren't sufficient.
Customer: replied 1 year ago.
Would I have to prove that the tree trunks in the photographs belonged to the tree stump on site? or is it sufficient to have an expert verify they are the same tree type?
Expert:  JGM replied 1 year ago.
The photos have to be of the site and the person who took the photos will have to give evidence of having done so.
Expert:  JGM replied 1 year ago.
Let me know if I can help you further with this. Can you also remember to leave a positive feedback on the system so that the site credits me for my time. Thanks for using JustAnswer.
JGM, Solicitor
Category: Law
Satisfied Customers: 10649
Experience: 30 years as a practising solicitor.
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