Monday 16 September 2019

Storm damage to car was no act of God, judge rules

Judge's gavel
Judge's gavel

The storm which blew a branch of a tree down on to a parked car could not be dismissed as an act of God by the insurance firm which declined to cover the damage to the vehicle.

That was the preliminary verdict of Judge Gerard Haughton as he reviewed the case taken by car owner Linda Byrne from The Laurels in Marshalstown as she sued householder John Higginbotham of Whitemill, North Killeens in Wexford.

The judge decided that he would have to consider other legal issues before delivering his final verdict on the €2,200 claim after hearing both sides of the story aired in the courtroom at Ardcavan.

Ms Byrne told how she went to work as usual at the Convertec factory in Wexford town on a very windy day in February of last year.

She parked in one of the designated spots in the car park, close to the boundary with the Higginbotham family home.

Around lunch time, most of the workers shifted their vehicles after a branch fell down, causing minor damage to one of the cars there.

However, the plaintiff was unable to shift hers as it was blocked in, leaving it exposed to the accident which occurred shortly afterwards.

Defending solicitor Matthew Kearney produced a report from the 'Wexford People' newspaper on the day's storm.

It recounted how more than 300 trees were blown down around the county as Wexford was put on an orange weather alert.

Higginbotham had insurance cover with AXA but the company told Ms Byrne that what happened was an act of God and they were not liable.

The firm sent two assessors to the scene and they reported that there was nothing wrong with the trees, which have since been taken down.

Landscape horticulturalist Michael Fanning told the court that they were shallow rooted leylandii cypress.

John Higginbotham stated that he had lived at his current address since 1969. The fast growing leylandii were planted as a screen along the boundary between the two properties in the early 1980s.

'My grandchildren play in the garden,' he said. 'If I thought they were dangerous, I would have had them removed.'

He recalled that five other trees came down on the day in question around the neighbourhood, describing the conditions as a hurricane.

Mr Kearney and his opposite number Nigel Allen discussed the legal requirements placed on what they called an 'ordinary prudent landowner' to maintain trees.

The judge reserved his judgement until July 20 on their arguments. However, he felt that the wind which caused the damage are not so unusual as to be described as an act of God.

He recalled taking part in the 1980 Round Ireland yacht race when the fleet experienced force 10 and 11 storms.

He stressed that he had found John Higginbotham to be a decent man who had been doing his best to ensure that Linda Byrne was looked after.

Mr Kearney told the court that AXA would go along with whatever the judge decides next month.

Wexford People