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Ben Jones
Ben Jones, UK Lawyer
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My daughter's car had a tree branch fall on it whilst parked

Resolved Question:

My daughter's car had a tree branch fall on it whilst parked in a pub car park. £1050 worth of damage. The pub manager said they would pay for the damage. Their insurance loss adjuster has refused the claim, saying we have to prove negligence. Please advise on what we should do next
Submitted: 11 months ago.
Category: Law
Expert:  Ben Jones replied 11 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Was there actually negligence on the pub's part?

Customer: replied 11 months ago.
A 20 foot branch fell on the car, whilst she was inside the pub. Tried to find a notice of liability in the car park yesterday this was hidden by an overgrown bush. Please advise on how you would prove negligence
Expert:  Ben Jones replied 11 months ago.

Well, a tree is organic matter, subject to breakage, being weakened by weather, age, etc. So to prove negligence you must be able to show that the pub should have know that this particular tree or branch posed a risk and that they had failed to take reasonable steps to deal with it and to prevent it from casing any injury or damage. For example, if there had been a storm a few weeks ago and the branch was obviously damaged and was loosely hanging over the car park and this was obvious to anyone who would have seen it. In that case the pub would have known that this caused a potential risk and should have taken steps to deal with it. If they unreasonably failed to do so and subsequently the branch broke off and fell damaging cars underneath, that could be negligence. However, if there was nothing obvious to suggest that this branch posed a risk and it fell naturally, then there would be no negligence on their part and no liability, even if it happened on their premises. I completely understand that you feel someone should be held responsible for this and the obvious party is the pub, but the law does not always work like this - you must be able to show that they had acted negligently and that they had failed to take the reasonable steps expected of someone in their position to deal with the risk. Only then would you be able to hold them liable and pursue them further.

This is your basic legal position. I have more detailed advice for you in terms of the steps yu can follow should you decide to take the matter further still, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

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Expert:  Ben Jones replied 11 months ago.

Thank you. As mentioned to be successful with a claim you must be able to show the pub was negligent as described above. If you still wish to take this further, then whenever a dispute arises over compensation owed by one party to another, the party at fault can be pursued through the civil courts. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:

1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the party at fault to voluntarily settle this matter.

2. Letter before action – if informal reminders have been sent but these have been ignored, the party at fault must be sent a formal letter asking them to resolve this amicably within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to pursue the compensation due. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the other side and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.

Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.