Falling tree and liability

[BonfiresOfInsanity]

During the last storm, a very large tree fell over from council owned land into my DMs garden destroying her garden furniture, a storage shed, pots and ornaments and the fence. The council are saying that they will not pay out for replacing these items unless we can prove negligence. My DM doesn't want to claim on the insurance as it will cost her money. How can we prove they have been negligent or failed in their statutory duty? We have no access to their maintenance programmes or any other information to prove this. Any useful advice would be most welcome.

I think you’ll find that’s what insurance is for.

The council would have to have been lax in their tree inspection regime OR have been told that the tree was dangerous by a qualified arboriculturist (or such) I’d go through insurance if I were her.

Aren't falling trees in a storm considered an 'act of God' for insurances purposes?
I would imagine you'd need to establish if the tree was healthy or not which would establish if the council were negligent in not dealing with it ahead of the storm.

If the council has been negligent it won't cost your mother anything to claim on her insurance. The insurers will claim from the council. Personally I would contact the insurers and take their advice.

I second what prh said.

Well if the fallen tree is still there, does it have rot at the base and would that have been visible before it fell?
Take photographs.
Ask to see the tree report on that tree.
To be honest though if it has has a basic visual survey that was documented they are covered. And in reality if it hadn't they could fake the paperwork for all you know.
Certainly photos and asking for any reports should show them you are invested in this.
My bet is it would have been cleared away fairly sharpish.

We have had a similar issue - car written off, extensive damage to the house and fencing, the council paid absolutely nothing and we were apporiximately 3K out of pocket with the various excesses on the different policies that we had to pay.

You could ask for details from the council under the Freedom of Information Act for when they last had the tree inspected, and what the report said. Chances are they haven't had it done for decades. Also try and find out whether it had a TPO on it, if any work has been carried out on it, or whether anyone else has ever reported concerns about the condition of the tree to the council.

If there has been any building work or underground cabling, pipes etc near the tree within about the last 10 years, then that might have destabilised the roots, so you could maybe check that out as well.

They will try and worm their way out of any liability, so the onus is probably on you to prove negligence.

There’s not much point in your DM having insurance if she’s not going to claim on it. This is the sort of incident that insurance is for.

The insurance companies said there was no point trying to claim off the council as it would be very difficult to prove negligence. The council could provide a survey of the trees that was about 18 months old, but since that time the ground had been very waterlogged which we argued had made the trees unstable - it didn’t get us anywhere and just added to the stress.

They have liability insurance from which you should claim. Was the tree appropriately maintained?

The trees that fell on our land didn’t have a TPO as they were on council land (the ones in our garden do) - we had reported the trees and asked for them to be maintained on many occasions. The tree surgeon who came to remove the trees said they looked healthy enough and agreed with our insurers that we didn’t have a claim.

To be fair to our insurers they paid out without argument - our premiums have rocketed as a result though.

The council will need to have been negligent in order for your mum to make a successful claim against them. Like shush said, there will need to be evidence they were aware of a problem with the tree, and that they failed to deal with the problem within a reasonable timescale.
I think your mum’s best course of action is to contact her own insurer and allow them to pursue a claim against the council. They may decide it’s not financially viable if the claim is minimal and the likelihood of success is low.

I work with a local authority tree team fairly regularly.

Yes this is judged as an act of god just as it would be if one of your trees fell onto council land and damaged council property.

Our tree team have a 3 year cyclical tree inspection and maintenance programme that is fairly standard in the industry. In storms and high wind trees fall down. Often they are perfectly healthy so there would have been nothing to see in an inspection to cause alarm.

The only tree issue that we have fined someone for was a genuine act of neglegence of a contractor that dug a trench next to a 150yo tree cutting all the roots on one side. the tree had to be removed for safety reasons as a result as it was dying and at risk of tipping without the support.

Yes you can have TPOs on public trees. where i am almost all the trees over a certain age have them and you need permission to remove anything over 2 years old.

Thank you all so much for your responses, they have been very helpful.

I will speak to my DM about her insurance. She is elderly and is worried about the costs rocketing if she claims along with the large excesses. The tree is enormous and still there because they need a special team to get rid of it apparently. We do have plenty of photos including the roots (and the crater it left behind!).

I think there is a negligence in allowing the trees to become that tall when so close to property (the house is about 150 years old so I think it was there before the tree but who knows) and it is adjacent to a river which has certainly contributed to softening of the ground but I don't need the stress of fighting a losing battle and nor does my DM.

Ask the council for their last report of the trees condition. If they can't find it then it's possible they were not discharging their responsibility to ensure the safety of their land.

There was a case in Birmingham a few years ago where the council was found liable. They went on a massive programme of logging every trees condition after that - and felled quite a few

Bonfires, if they’re believed to be safe (ie in good condition and not near the very end of their life) there is no reason to fell or reduce very tall trees; TPOs won’t allow it as the very reason for them is often linked to their immense height and their beneficial impact on the local area.

Have a read of Rylands v Fletcher

Thank you for the further comments also.