Car hit by tree and loss of use

[maestro451]

A tree surgeon cut a branch of a tree that hit my car as I was travelling under it.

 

Im claiming back all my uninsured losses back direct from the tree suregons Public liability insurance

 

I asked about loss of use in this thread and put in a claim for £500 (3 weeks loss of use 1/2 price of a simular hire car)

 

http://www.consumeractiongroup.co.uk/forum/insurance-assurance-companies/257764-car-hit-tree-need.html

 

Today ive got a reply from loss adjusters saying loss of use is not recoverable?

 

This sounds like a load of nonsense to me.

[unclebulgaria67]

They are correct, as you can only claim back actual reasonable costs incurred.

[maestro451]

But loss of use is a well known loss? if my car is off the road for 3 weeks due to their negligence and I couldnt have a hire or courtesy car then Im sure im entitled to damages.

 

from the aa website

 

Loss of use of vehicle (hire charges etc)

If your car is damaged and off the road you can charge 'reasonable' hire charges, public transport costs or general damages. Contact the other driver's insurers (by telephone and writing) to see if they have any proposals relating to providing another vehicle. If they do not, you may have to pay at first and then claim your expenses later

[Endymion]

Yes you can claim for a loss of use but it isn't as simple as you think.

 

Your claim, in essence, is a claim for the loss of use of your car while it was in the garage undergoing the repairs which needed to be done as a result of the accident. I suspect you will have no evidence to show that you would have suffered financial loss as a result of being unable to use your car during this period, but inconvenience is another form of loss for which, in principle, damages are recoverable.

 

Your problem will be is to show that you were incovenienced and how this has led to your loss. Simply putting in a claim for 50% of what the hire car charges will not suffice.

 

The AA advice is misleading. Yes you can claim hire care charges, but you haven't utilised a hire car. You can claim public transport costs, but you haven't done this.

 

The only relevant bit of the AA advice, and I say relevant loosely, is the advice regarding general damages. It is quite difficult to claim such a head of damage as the Court will see that a) you didn't need a hire car, and b) you didn't need to use public transport so in fact you have mitigated your own losses, as you should do, and as such, you have not incurred a loss.

 

You will need to give them details as to how you have been incovenienced i.e. did you have to walk and did it take longer, did your friends or family have to take time out to take you places etc, however, even then you will still have a hard job persuading a Court and Defendant to pay you anything as it does look like such damages claimed are not recoverable.

[maestro451]

Hi

 

The vehicle is the dogs vehicle, he's a giant breed newfoundland, its the only car he can fit in, so although we still had cars we were unable to take the dog out on proper walks for 3 weeks and missed dog shows that we would have gone to.

 

He hates the traffic so we had 3 weeks of horrible road walks were we was a damm pain to be honest which meant he was also a nightmare indoors as he didnt get his proper walks.

 

Thats the reason he didnt get a courtesy car - he wouldnt fit and also a hire care was no good as they dont allow dogs.

 

ive also just found this

 

Lagden (Respondent) v. O'Connor (Appellant)

 

When one person's car is damaged by negligent driving on the part of another motorist and the damaged car is economically repairable, the owner of the damaged car loses the use of his vehicle while it is being repaired. In the ordinary course the damages payable by the negligent driver include, in addition to the cost of repairs, damages for loss of use of the damaged car. In the ordinary course the reasonable cost of providing the innocent motorist with a suitable replacement vehicle while his own car is off the road crystallises the amount of loss suffered by him under this head of loss. In practice it is a convenient yardstick by which to measure the damages payable to the innocent driver for temporary loss of use of his own car.

[sailor sam]

You can claim un-insured losses such as car hire/loss of use ect. You can argue (although you may have to go to court to do it) 'loss of enjoyment' but you should mitigate your losses. Personally I would write direct to the tree surgeon and advise him that you are claiming £500 to cover your loss of use using the calculation in your original post. Further advise him that you intend to claim this via the small claims court unless a payment is forthcomming after a period of 14 days. Conclude in advising him to pass this to his insurers should he wish them to settle this on his behalf. Send by recorded delivery.

 

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[Endymion]

 

Lagden (Respondent) v. O'Connor (Appellant)

 

When one person's car is damaged by negligent driving on the part of another motorist and the damaged car is economically repairable, the owner of the damaged car loses the use of his vehicle while it is being repaired. In the ordinary course the damages payable by the negligent driver include, in addition to the cost of repairs, damages for loss of use of the damaged car. In the ordinary course the reasonable cost of providing the innocent motorist with a suitable replacement vehicle while his own car is off the road crystallises the amount of loss suffered by him under this head of loss. In practice it is a convenient yardstick by which to measure the damages payable to the innocent driver for temporary loss of use of his own car.

 

Lagden v O'Connor along with Dimond v Lovell are cases regarding impecuniosity and hire car charges i.e. the Claimants hired a car from a company on a CCA because they couldn't afford to hire one themselves and so unfortunately doesn't help you much as again, you haven't hired a car. The cases are simply based on whether the hire car charges are recoverable or not.

 

The law is sound in that you can claim for a loss of use - that is not in question I don't think. The problem is you have to be able to prove you have sustained a loss, which is the difficult bit.

 

Do you have any evidence that the hire car companies would not allow dogs and of the missed dog shows? If so, you may well stand a reasonable chance of recovering some money, although I doubt you will get any offers from the insurance company without resorting to litigation.

 

Have a look at your insurance policy to see if you have legal expenses insurance and if you do get them to instruct a solicitor to make the claim for you as you will then have funding for a barrister if it went to trial.

[maestro451]

surely aswell though its just a plain financial loss, I paid £12k for a brand new car in november and due to the fault of the tree surgeon I was without my new car for 3 weeks, I cant believe that im not entitled to something for that.

 

The car was bought for the dog, we use it every single day, I find this very frustrating.

 

I dont have any evidence, the dog is still young (he was 10 stone at 7 months old) and I couldnt use a hire car as he still has a little chew of things every now and again.

 

I find it unfair that they chopped a large branch onto my bonnett that could have killed me if it had come through the windscreen and now aswell as days of work etc ill have to go to court.

 

I think I will go to small claims if I have to and see what they say

[maestro451]

more research has led me to this case, apparenlty this is the main case for loss of use

 

E) DAMAGES

 

Where the claimant has been deprived of the goods, he is entitled to their value by way of damages.

 

A claimant may recover general damages for loss of use of goods (as distinct from special damages for loss of profits from the goods) although he would not have been using them during the period within which he has been deprived of their use (The Mediana [1900] AC 113, 117-8 per Earl of Halsbury LC).

[maestro451]

it seems that it doesnt matter even if I wasnt going to use the vehicle according to mediana 1900,

 

House of Lords - Lagden (Respondent) v. O'Connor (Appellant)

 

And in The Mediana [1900] AC 113, 117, Lord Halsbury LC said:

 

 

"What right has a wrongdoer to consider what use you are going to make of your vessel? … Here, as I say, the broad principle seems to me to be quite independent of the particular use the plaintiffs were going to make of the thing that was taken."

 

In both these cases the issue was as to the damages to be paid to the plaintiffs for their loss of use of a ship while the damage caused by the defendants' negligence was being repaired. In the Susquehanna [1926] AC 655, 661, another ship collision case, Viscount Dunedin made clear that:

 

 

"There is no difference in this matter between the position in Admiralty law and that of the common law …. "

 

So, in car accident cases as in ship accident cases, the negligent driver must compensate the owner of the other car for his loss of use of the car while it is undergoing repair. If there is no more to the loss of use claim than that, the claim will be for general damages and a fair approach to quantum would be to award a sum based upon the spot rate hire charge for a comparable vehicle.

[unclebulgaria67]

Ok, go for it. Threaten to take this forward by way of litigation and see what happens. They might make an offer of an ex gratia payment, without paying you the value you are looking for.

[sailor sam]

Has the OP investigated fully via the various hire car co's whether they have a suitable vehicle for the OP's needs? There are co's who allow dogs to be carried in certain typs of vehicles. What about a Fiat Doblo which are popular for carrying wheel chair passengers for example?

 

__________________

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 scales at the bottom of my profile window on the left if you found my advice useful.

[maestro451]

We asked a couple who said no dogs and to be honest even if they did we couldnt have accepted because as a youngster he still chews things (in the house and car) so use of a hire car wouldnt have been suitable i.e he would probably have damaged it.

[sailor sam]

We asked a couple who said no dogs and to be honest even if they did we couldnt have accepted because as a youngster he still chews things (in the house and car) so use of a hire car wouldnt have been suitable i.e he would probably have damaged it.

 

With respect, you have got to try and help yourself a little here. there's more than one way of skinning a cat (even though we are talking about a dog).

 

Your problem is obviously you have lost the use of your vehicle through no fault of your own. Your vehicle was specifically bought to transport your large dog around. Your options seem to be more complicated than necessary and perhaps need a little more thought. Ok, so you cannot hire a similar vehicle for the reasons you have given but to be honest, you cannot expect that to be the fault of the tree surgeon. Yes, he or his insurers should be liable for the loss of use of your vehicle and if necessary, you would have a favourable case in court. Their liability is to pay for a temporary replacement but the fact you cannot get a suitable car isn't their problem so you need to be prepared to find a compromise.

Could you not muzzle the dog while its in the vehicle for example? Or what about hiring a van? Have you asked the supplying dealer for advice? They may have a demonstrator available which they could let you use where by you could re-inburse them for.

 

__________________

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 scales at the bottom of my profile window on the left if you found my advice useful.

[maestro451]

With all due repect I have to disagree, the fact I couldnt find a suitable replacement is their problem as they are liable to pay damages.

 

A hire car would have been double the amount im asking so I feel im being more than reasonable, In the end I did the best I could for 3 weeks without the vehicle, it wasnt easy and I want compensation for the extra inconvenience.

 

I think the 3rd party should be gratefull that I didnt hire a vehicle given the cosys

[sailor sam]

With all due repect I have to disagree, the fact I couldnt find a suitable replacement is their problem as they are liable to pay damages.

 

A hire car would have been double the amount im asking so I feel im being more than reasonable, In the end I did the best I could for 3 weeks without the vehicle, it wasnt easy and I want compensation for the extra inconvenience.

 

I think the 3rd party should be gratefull that I didnt hire a vehicle given the cosys

 

As has already been pointed out in an earlier post, you are asking for compensation rather than a financial loss. You would need to demonstrate what the cost of hiring a similar vehicle would have been to have any chance of success. Plus you would need to convince a court (if it goes that far) that I would'nt be possible to hire a sutable vehicle for your dog. The TPs lawers would argue that you could of hired a van for example. The fact that actually hiring a similar vehicle would cost the TP (or his insurers) double isn't really your problem. You would possibly entitled to hire the said vehicle and present them with the bill as it was their policyholder who is liable for putting your own vehicle out of action. Should this go to court, your are more likely to succeed in recovering actual losses rather than compensation unless they involve loss of earnings ect.

 

If I were you I would consult a specialist solicitor before you proceed further on this.

 

__________________

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 scales at the bottom of my profile window on the left if you found my advice useful.

[maestro451]

thanks, im asking for general damages, if its a monetary loss (i.e hire car) its special damages I think.

 

I still think that whether or not I have a hire car is irrelevant

 

Luxury Pleasure Craft - Damages For Loss Of Reputation And Loss Of Enjoyment. - Free Online Library

 

It is well established, under the line of authority commencing with The Greta Holme [1897] AC 596, that injury to property which deprives a party of the use of a non-income earning chattel is compensable. The defence challenged whether this would extend to loss of use of a chattel purely for pleasure purposes, such as the Eagle. The Court referred to a colourful example from The Mediana [1900] AC 113:

 

'Supposing a person took away a chair out of my room and kept it for twelve months, could anybody say you had a right to diminish the damages by showing that I did not usually sit in that chair, or that there were plenty of other chairs in the room?'

[unclebulgaria67]

Maestro

 

If you think you have a legal basis for claiming for loss of use, just send them a letter, explaining this. Suggest that they refer this to their legal department.

 

Then wait for their response. My experience of dealing with claims many years ago, is that they won't take legal advice. If your letter is worded nicely and is not agressive, they won't bother to waste much time taking legal advice. They could well just agree to the claim on the basis, that you could have paid out for a hire car, so they might have suffered a further loss value anyway.

 

If they are argue the toss, you could have to take this to court.

[maestro451]

hi many thanks, ill definately fo that and ill let everyone know

 

Ill think ill leave this thread for now as I dont want to get into any sort of arguement, I thank everyone for their advice.