When is your neighbour not responsible for Storm damage

[ggumpshots]

We had a severe storm last night and flying debris, from our neighbour, damaged our car. Our shared fence was damaged as well .Is he responsible for the damage?
The details.
Part 1
His trampoline was tied down and secured at a number of points, which he had done previously in a number of typhoons. This time the wind gusts were severe, 176km/hr, and some legs, which were tied down, separated from the trampoline.

The trampoline flipped over some trees 4m in height and snapped 10m of fence, which was secured in a 1.3m high, concrete wall.
What is he responsible/not responsible for?
Part 2
What, in a general sense, are owners of property responsible for, in cases of acts of god or severe weather conditions?
Are these 2, distinguishable events?

If my house falls on a car in an earthquake I presume I am not responsible for acts of god? ….or am I?


There are people’s common sense answers and the legal answer based on precedent
I am only interested in the legal answer in Australia at the the moment.

I guess those based in Darwin or Cairns will have gone through this.
Thanks

 

[Ricardo29]

Neighbour not responsible. No case to answer. See your insurer.

 

[ggumpshots]

What insurer????????????????????????????????????????????????????????????

 

[Ricardo29]

yours...if your property is damaged by storm, impact, debris, acts of god...whatever....its your claim.

 

[Twitch]

yours...if your property is damaged by storm, impact, debris, acts of god...whatever....its your claim.

Yup. I had a neighbours tree cause damage to my prop during a storm and my insurance company said it's my problem. The only way it would have been the neighbours problem was if I had warned them twice in writing to have their tree pruned.

 

[ggumpshots]

yours...if your property is damaged by storm, impact, debris, acts of god...whatever....its your claim.

I have no insurer

 

[TheCamel]

I have no insurer

uh oh.

ya know.. i've seen many threads in other places about people driving their cars involved in accidents, and they are like "i've got no insurance"

if you can't afford at least third party property and fire for your car, then you shouldn't be driving it..

insurance is kinda important.

 

[Twitch]

I have no insurer

On house or car? Damage to your car would be covered on your car insurance, the fence on your house insurance.

 

[Ricardo29]

lender requirement too i wouldve thought..particularly for IP/home, and generally for vehicles as well.

 

[ggumpshots]

It amazing how a thread can be side tracked.
If I had wanted advise about what should have been done/should be done /could be done then I wouldnt have written in my first posting
I am only interested in the legal answer in Australia at the the moment.
I cant see the benefits of adding irrelevnt information.

Of course you can start your own thread about what people should do if some event happens but ADDING TO THIS THREAD ISNT HELPFUL.

 

[geoffw]

gg

Time to talk to a lawyer. If you want answers about legal liability, I don't thing we're the right people to talk to.

It's a pity that, AFAIK, we don't have a qualified practicing lawyer on the forum.

The fact that you didn't have insurance was omitted from the first post, and is extremely relevant.

 

[ggumpshots]

Yup. I had a neighbours tree cause damage to my prop during a storm and my insurance company said it's my problem. The only way it would have been the neighbours problem was if I had warned them twice in writing to have their tree pruned.

So you had to pay for the damage. Is thay your point?
Why is warning them once insufficient.
Whyis warning them more than twice not necessary.
That seem odd


BTW I have neither house not car insurance....my choice

 

[ggumpshots]

gg

Time to talk to a lawyer. If you want answers about legal liability, I don't thing we're the right people to talk to.

It's a pity that, AFAIK, we don't have a qualified practicing lawyer on the forum.

The fact that you didn't have insurance was omitted from the first post, and is extremely relevant.

Hi Geoff.
No its not relevent .
Whats relevent is where the responsibility lies.
if responsibity lies with my neighbor, the there is no insurance claim by me.

If reposibiyt lies with me then my insurance company, if I had one, would be relevent
I assumed that lots of people have had problems with storm damage so I thought people some would be able to give information.

So geoff if your subway street sign hits someone in a storm in belconnen way ..........dammn big storm,.............is your insurance company going to pay up if you are not reponsible . ...can you see my point.

 

[Ricardo29]

ggump...

your situation is NOT an act of god. the general consensus is that such things are large unseen catastrophies. yours is not. but this doesnt really matter, is not relevant to your situation..just highlighting what a general act of god is.

your situation: it is simply a storm, resulting in impact damage to property. which insurance covers. insurance takes into account law in its underwriting - the very reason this is covered as standard perils in any insurance cover is because it is an 'accident'. accident meaning, no one is at fault.

but...as u insist on the law:

the law in this case is clear. there is NO negligence on the part of your neighbour, and as such, he is not responsible. in fact, it could clearly be argued that he has attempted to minimise or reduce risk (by tieing down trampoline). he is not required by law to even do this, or to remove the trampoline.

 

[Kristine..]

Hi ggumpshots

Rylands v Fletcher (1868) is a famous 19th century example of judicial legislation which dealt with the liability of an occupier who brings onto his land something which though harmless while it remains there, will naturally do mischief if it escapes.

The defendant caused a water reservoir to be build on land which he occupied and to be partially filled. Although there was no personal negligence or fault on the part of the defendant, water from the reservoir flooded a mine worked by the plaintiff.

The question was whether the defendant should be held liable for the damage suffered by the plaintiff even though he had taken all reasonable and prudent precautions. The House of Lords held that the obligation imposed on the person who for his own purposes brings onto land and keeps there anything likely to do mischief if it escapes is not discharged by conduct amounting to reasonable care. The House found that in these circumstances the occupier keeps what he has brought onto his land at his peril and is therefore prima facie answerable for all the damage which is a natural consequence of its escape.

(Business Law of Australia, Vermeesch & Lindgren, 1974)

The Law of Torts cautions us to be mindful of our neighbour. In your case, you are physically the neighbour of the trampoline owning occupier.

Your neighbour knew, or should have known, that should the trampoline escape the property it would naturally cause damage. Your neighbour took reasonable care to ensure that the trampoline was secured when stormy weather was expected.

However, the fact that the trampoline escaped during a storm could or should have been foreseen, and despite your neighbour attempting to restrain the trampoline he was not successful and you have suffered damage as a result of his bringing the trampoline onto the property in the first place.

In my humble opinion I would rely on the precedent of this established case and determine that the neighbour is liable for the damage suffered by you.

Dear readers I would remind you that insurance acts as an indemnifier where a third party may or would ultimately be held responsible for the act which caused damage.

Insurance companies are there as a common pool or fund on which an injured party may rely. However, where the perpetrator of the action is known or later discovered, the insurer will then seek to recover damages from them.

So it is irrelevant whether or not ggumpshots had insured his property. The damage was caused by something escaping from another property and the occupier of that property is responsible for the damage.


Cheers

Kristine

 

[Ricardo29]

no chance.

he has a very limited duty of care to a neighbour.
he has taken reasonable care, 'common sense' care, and done what a layman would consider adequate. it in fact has proven to be completely adequate in past situations. he is not required to do absolutely everything in his powers to remove all risk, he only needs to recognise it, and do something considered adequate. which he has "numerous times in other typhoons" as ggump says.

""where the perpetrator of the action is known or later discovered"" then yes insurer can subrogate.
tramp man isnt the perpetrator...the storm is. he is not clearly 'at fault'.

tort reform in last 2 years wouldnt allow this, despite your 1868 case history.

 

[ggumpshots]

ggump...

your situation is NOT an act of god. the general consensus is that such things are large unseen catastrophies. yours is not. but this doesnt really matter, is not relevant to your situation..just highlighting what a general act of god is.

your situation: it is simply a storm, resulting in impact damage to property. which insurance covers. insurance takes into account law in its underwriting - the very reason this is covered as standard perils in any insurance cover is because it is an 'accident'. accident meaning, no one is at fault.

but...as u insist on the law:

the law in this case is clear. there is NO negligence on the part of your neighbour, and as such, he is not responsible. in fact, it could clearly be argued that he has attempted to minimise or reduce risk (by tieing down trampoline). he is not required by law to even do this, or to remove the trampoline.

Some intersrting posts Ricardo
but an act of god is
A natural event, not preventable by any human agency, such as flood, storms, or lightning. Forces of nature that noone has control over, and therefore no one cannot be held accountable. So on that account alone he would not be accounatable.

There is no insurance by either party so forget that aspect.

So lets replace the trampoline with some Nitro glycerin stored in a steel box tied down.
From your logic if the box landed on my property and destroyed my building , there would be no liability !!!!! I dont think so.
Nitro is inherently dangerous if it escapes, ie explodes.
You assert there is no negligence and thus there is no liability,
if a Trampoline escapes then it is inherently dangerous and knowing a storm was coming should have done everything he could , not some things to prevent escape. That wouild seem negligent. The more dangerous an object the more care should be taken.He doesnt have to use every option in the world but more than what was done.
The gusts were 175km/hr, by the way.

This is probably an easy question for an experienced lawyer.

 

[lizzie]

i believe that the neighbour is not responsible.

we had a case similar - but obviously not the same - where the neighbour of one of my ip's hit the power box on the side of my ip with his car while driving up the shared driveway.

i immediately thought his car insurance would cover the damage because it was his car that cause it ... but i was wrong. after talking at length to the insurance company, because the damage was to my house the damage was covered under my insurance. the neighbour was not even obligated to pay the excess, but he did out of consideration.

pick an insurance company at random and ring them to ask your query as a "hypothetical" question. you'll get your answer - but i think you will find that your neighbour is not responsible. he took satisfactory precautions, and it is not his fault you choose not to have insurance.

i hope you, at least, have 3rd party for your home and car so that if anyone else is damaged/hurt either by your vehicle or on your property, you don't get sued for everything you have.

 

[Ricardo29]

ggump...

each case is different. you cannot pick the circumstances out of one, and transpose it onto another, to get a suitable outcome.

trampoline - no. common domestic item which can reasonably be expected to be allowed to live in a neighbours backyard, not expected to fly over 10m high walls, has taken appropriate action in the past...various other reasons.

glycerin - the duty of care is MUCH higher due inherent risks involved, and as such, would likely be in trouble. there are guidleines on how and where to store, there are commercial situations to properly keep such 'things' etc. this should all have been done. risks are higher, not expected to store in backyards or be held in domestic situations..etc etc etc etc.

im not reciting chapter and verse for you, its a waste of time. tort law and negligence is the law of common sense...you know the answers.

 

[Pushka]

The neighbour isnt responsible. The example of Nitro - well, I imagine most Insurance companies exclude the storage of explosive objects to their policy. As I understand it you are only responsible for damage caused to others whilst they are on your property.

Similar scenario - your house catches fire, you are covered by your insurance. If then, the neighbours house catches fire after yours, no way are you responsible.

For those who dont have house insurance, I had a house fire last month. Fire brigade was called and approx $6000 damage done, confined to a bedroom. A powerboard fuse was the cause - a simple failure. Could happen to anyone. The Insurance company paid for everything. We were a few minutes away from losing everything (maybe $600,000 damage - home and contents). How can you not be Insured?