Who is liable for storm damage to property?
A topical branch of the law
Jersey is recovering from the effects of Storm Angus, which left chaos in its wake. Boats were knocked off their trailers at South Pier, roads were blocked with fallen trees and power lines came down in St Saviour as the storm, for which the highest storm warnings since 1999 were issued, raged. With many homeowners now faced with the clear-up operation, who do they approach to cover the costs of repairs?
There is a famous thought experiment which asks, ‘If a tree falls in the forest, and there’s nobody around to hear, does it make a sound?’ This seemingly simple question has divided philosophers for hundreds of years. Of course, as homeowners and lawyers, we care not whether a falling tree makes a ‘sound’; instead we are interested with who is responsible for the consequences and any remedial works.
What if damage is caused by something from your neighbour’s property being blown onto your property?
The most obvious example of damage is where a neighbour’s tree falls onto your house, garden or outbuildings in a storm, thereby causing damage to your property. The assumption may be that the damage is the tree owner’s responsibility and therefore a claim should be made against him or his insurers.
In fact this is a common misconception. Your neighbour will not be liable for the damage caused to your property as no-one is held responsible for damage, such as storm damage, caused by so called ‘Acts of God’. Generally you should look to your own insurance company to cover the costs of removing the tree and repairing the damage. Similarly, if a tile blew from the roof of your property and caused damage to, for example, your neighbour’s car, he would have to claim against his own motor insurance.
A practical aside – check your home insurance policy carefully as items such as your fences and driveway may not be covered. If your insurer refuses to pay for these items you can be landed with fairly substantial repair costs. Damage to vehicles will, subject to the wording of your policy, only be covered if the cover is comprehensive.
An exception to the rule – knowledge and foreseeability
Logically, the general position makes sense; one can only be liable in negligence following a breach of duty and, in the case of an ‘Act of God’, no duty has been broken. However, property owners owe a duty of care to neighbours to take reasonable steps to make sure that their trees are healthy and not liable to be blown over.
Most property owners are not experts in the care of plants and trees. Suppose the tree shows no outward signs of disease or decay. A violent windstorm uproots it, sending it crashing onto the neighbour’s gazebo. Not being an arborist, the owner could not reasonably have foreseen this and accordingly is not liable for the damage.
However, it would be reasonable to expect a property owner to notice multiple dead branches or limbs starting to crack and fall off. These would be signs of trouble with the tree. If these signs have been apparent for some time, and the owner does nothing about it, then he is breaching his duty of care and would be liable if the tree subsequently falls over and causes damage.
This may not be easy to prove, nor should it be. The point is simply that the person whose property is damaged during a natural event, and his or her insurer, need not always conclude that it is their tough luck to have suffered damage from a neighbour’s tree. The question is whether there was some aspect of the condition of the tree about which the owner knew, or should have known, and because of which the tree, or its limbs, caused the damage in question.
Keeping problems at bay
Most cases involve trees blowing over without warning due to storms or acts of nature, so most homeowners do not worry about their insurers meeting a claim or the attendant premium increase. In some cases, a neighbour may still try to sue the tree owner to recover any excess not covered under the neighbour’s policy. The best way to manage this risk is to prevent it in the first place. Homeowners should check their trees regularly and have them inspected by an expert at the first sign of disease.
With the onset of winter, now is the time to check that you have adequate insurance in place and ensure that you and your neighbours have dealt with any problematic trees.
If your property or your neighbours has been damaged as a result of a storm and you want to seek advice on liability, please call Viberts’ dispute resolution team on: +44 1534 632255