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Interesting court case re liability


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Council refuses to pay gran after breaking her windscreen

 

http://dailym.ai/2qomwbu

 

A council lawnmower propelled a stone into a car owners back windscreen smashing it. The car owner issued a court claim and the council are defending it next week, saying their employee was not negligent.

 

You can understand why the council are defending the claim, as a lawnmower operator in this situation would not be negligent, if they were operating the lawnmower in accordance with its operating manual. It is not possible to check every little bit of grass to see whether there might be a stone.

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Agree with the council on this one as not negligent

 

In my own opinion force majeure

 

Perhaps it should have been a joint claim against council and lawnmower manufacturer. Given that lawnmower might be used by commercial users near third party property, perhaps there were insufficient shields fitted to stop stones being propelled, which might cause a third party to suffer a loss.

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A claim should be made against the council public liability insurance which is compulsory and is there exactly for accidents like this.

The worker was not negligent, fair enough, but the windscreen still got chipped.

It's an accident and pli should pay out.

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Ahhh the Daily Fail... I'm not surprised the Council are defending this, seeing as realistically, they're not liable.

 

In my experience representing Councils (mostly in pothole damage claims), the worry they have is 'the floodgate'. I have a pro-forma witness statement which can run to 100 odd pages including exhibits, which need to cover the legal and factual issues from the Council's obligations under the highways act, to the reporting of the claim, inspection timetables of the roads and the classification of the road for inspection purposes etc etc. A claim for a few hundred pounds can be costly to defend.

 

Re PL insurance, the Council insurance will (in all likelihood) tend to run a high deductible, so as to keep the premiums down. So the Council will deal with anything high volume and low to medium value internally, and then refer all high value or non-routine stuff to the insurer.

 

Regarding this lady's situation I'd be very surprised if the Council don't draw the Judge's attention to the report to the newspaper. If the Council's witness statement has been sent or seen by the newspaper, then there could be data protection implications. Small claims hearings in the County Court tend not to be public so there is also CPR31.22 to consider... The Judge could possibly come down on her quite hard for that.

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This is the crazy media nuts world we live in.

 

The case has already been and gone (the same day as the fail's story) - surprise surprise she lost it.

 

The local rags now go on about how the council wasted money to defend the claim !!!!

 

Now I get that everyone has a right in law to make a challenge, and where possible, I'll assist them, but don't go to the papers when a defence is made saying it's a waste of public money, when you are claiming for a slice of the public money !!

 

Now, considered a VW UP! has only been out since 2011 there is a really little chance of it being covered by anything else than Comp,which means an excess of around £75.00, so how this cost her that much I don't know, unless of course they decided that again they knew better and though not to involve their insurers.

 

rant rant rantity rant.

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Shortly to be discussed on the Jeremy Vine Show BBC Radio 2 in the next hour or so.

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Shortly to be discussed on the Jeremy Vine Show BBC Radio 2 in the next hour or so.

 

Will see if i can listen.

 

Many people won't understand how the lawnmower operator can't be liable.

 

I just wonder whether you would have more chance against the lawnmower manufacturer for their product design in not unsuring it stops stones being propelled when used in accordance with manufacturers instruction manual ? Or are they too remote ?

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Listened to the lady on Radio 2. They just thought issuing the claim might lead to the council paying. The lawnmower operator stated they did carry out visual check for stones and there does not seem to have been proof to the contrary.

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Still a Gesture of Goodwill would have saved everyone grief and expense...but common sense did not prevail

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you could argue that Rylands v Fletcher and common law tort of nuisance caused by the egress of material from the council land. Liability by negligence doesnt have to be proved, it is the loss of enjoyment ( ie car cant be used with bust windscreen) is enough.

Claimant didnt mention this so undoubtedly it wasnt considered.

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I don't think Rylands would work.

 

"the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape"

 

It's a stretch to argue that a stone on a piece of grass was brought and kept there by the Council for their own purposes...

 

I had a listen to the lady and her son in law on the radio though.

 

Firstly, from what they say, their case seemed to center on the apparent admission of liability by the Council employee, rather than the legal merits of the negligence claim (which really they should have looked into further after the denial of liability). Probably wasn't the best move to rely on an oral admission (if it even was that!) from an employee who clearly had no authority to bind the Council to an obligation to pay damages.

 

Secondly, I think not keeping the stone or at least taking a picture hurt their case. If it was a big stone, I think she could have won.

 

As it stands, what Jeremy Vine did not emphasise enough in my view is that both parties had opportunity to submit evidence, the matter went to trial, and the Judge deemed the Council weren't negligent. It's not as if they spent thousands of pounds fighting this case only to lose at trial.

 

If I was the Council's barrister I'd have made a request for costs under CPR27.14(g). Try and recoup some of that public money...

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