My car hit by falling log from a tree surgeon! Who is a fault?

[sailor sam]

The only problem going throuigh your own insurance is that you run the risk of them not obtaining your excess back fom the TP. I think you should write formally to the TP enclosing a copy of an estimate of repair. Personally, I would go for a comlete repair on the lines of what it would be though your insurers... (I wouldn't consider having a 'cheap' job done, why should you?) Indicate that you regard him as being responsible for the damage to your car and will either pass the matter to your insurers or commence legal proceedeings yourself unless you receive payment in full 7 days from your letter. End by advising that he may wish to pass your letter on to his insurers should he wish them to deal with the matter on his behalf, and all future communication should be done in writing.

 

Keep us informed.

 

Please Note

 

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

I would always urge to seek professional advice for clarification prior to taking any action.

 

 

Please click my reputation button at the bottom of my profile window on the left if you found my advice useful

[Yorky2008]

Just a short reply as got to rush off but I think you will find the tree surgeon is breaking quite afe H&S rules, so I am surprised the HSE wasnt bothered!

 

The most notable is the 'Working At Height Regulations', if you google them you will find them. Basiclaly it say that they should protect any areas which may be accessed by unauthourised person and any potential areas where debris could fall should be segregated and protected. In addition they should also provide banksmen to allow people into the area. I

 

In fact here you go, Regs 10 & 11 :

 

Falling objects

10.—(1) Every employer shall, where necessary to prevent injury to any person, take suitable

and sufficient steps to prevent, so far as is reasonably practicable, the fall of any material or

object.

(2) Where it is not reasonably practicable to comply with the requirements of paragraph (1),

every employer shall take suitable and sufficient steps to prevent any person being struck by any

falling material or object which is liable to cause personal injury.

(3) Every employer shall ensure that no material or object is thrown or tipped from height in

circumstances where it is liable to cause injury to any person.

(4) Every employer shall ensure that materials and objects are stored in such a way as to prevent

risk to any person arising from the collapse, overturning or unintended movement of such

materials or objects.

Danger areas

11. Without prejudice to the preceding requirements of these Regulations, every employer shall

ensure that—

(a) where a workplace contains an area in which, owing to the nature of the work, there is a

risk of any person at work—

(i) falling a distance; or

(ii) being struck by a falling object,

which is liable to cause personal injury, the workplace is so far as is reasonably

practicable equipped with devices preventing unauthorised persons from entering such

area; and

(b) such area is clearly indicated.

.

[determindator]

Yes, the tree surgeon has a duty of care which as I see it he fails on this.Fault lies with him then.

[olliepup]

Thanks for the feed back and finding the regulations.

 

He has defo failed the last paragraph requiring devices to stop people entering the site.

 

I think the HSE officer was blinded by his spiel, he is full of legal jargon and how brilliant he is.

 

I wrote a long email to the HSE, higher up than she is, got a reply back saying she will answer my questions.

 

Basically i am aware he is good at ticking boxes for his risk assessment but a accident happened so what ever measures he brags about aren't being followed.

 

Also at what point is it my clients resposibility to inform me of danger and re arrange our appointment due to this tree work, it's certainly not a member of the publics place.

 

There is lots of other stuff i want clarifying that she just brushed off as i don't think she wanted to tackle him.

 

I should maybe write him a letter (the surgeon) stating these working at height restrictions, he will probably say he took reasonable care, but there was no banksman, of any device stopping me enter the site once it was clear.

 

It will be interesting to hear her reply.

 

Many hanks all.

[olliepup]

I've had a reply from HSE, she has stated in writing that the tree surgeon has accepted that although all paperwork is in place the implementation was not in place, the fact that all the paperwork was correct he showed he is aware of the dangers etc but he was not on site just his staff, so he has put in place a banksman for future works so the HSE are happy with what he is doing.

 

I suppose though having this email from the HSE will help my insurance claim to the point of there was no banksman in place, the implementation wasn't in place hence my accident.

 

You would think i should win this if i proceed with my excess and let insurance and legal cover get to work, i have all correspondance with this guy saved in a file so forward the lot onto the insurance.

[dragonkeeper]

 

Hi olliepup

 

You seem to be hung up on your £350 excess, this only comes into play when you make a claim or third party claims against you.

 

As you are claiming against some one elses insurance (ie non-fault) your own excess is safe because the other party insurance will have to foot the all costs (tree surgeons public liability ins) if the tree surgeon refutes the claim then you should have the option to claim against property owner. Then property owner's insurance will take action against tree surgeon.

 

If you think of it as if an other vehicle hit you, you would then claim of the other party.

 

Your insurance legal team will outline this better.

So put it all in the hands of your insurance and STOP worrying about our excess.

 

Hope this.helps.

 

 

 

 

dk

[olliepup]

Thanks Dragon,

 

From what i'ev been informed from my insurance they want the 350 to even deal with it, they will fix car etc then chase him for it.

 

I may just go for it anyay, as i dont want to let him get away with it!

 

Cheers Olliepup

[crem]

From what i'ev been informed from my insurance they want the 350 to even deal with it, they will fix car etc then chase him for it.

 

You won't ever have to pay your insurance company £350. what they will mean is that they will pay for your car tobe repaired at the agreed garage, but will not pay the first £350. You pay the garage that amount as your "excess" contribution.

 

When your insurance company successfully retrieve their money from the 3rd party, they will also have retrieved your £350 which they will refund to you.