XTR2Turbo Posted July 15, 2012 Share Posted July 15, 2012 Norman I use the phrase 'Act of God' but in law what we are actually saying is can negligence be proved. To make a successful insurance claim against you have to prove that the party you are claiming against is negligent. Unfortunately this can be very difficult. There is case law that can help in certain situations but the advice I had was that proving negligence with respect to a tyre delaminating would be very very difficult unless obvious factors like all the other tyres on the lorry being bold which was not the case. Likewise in Steve's case I think very difficult to prove the lorry company negligent and so claim off their insurance successfully. You would need to see something obvious that the company should reasonably have realise would make it likey the window was not safe. E.g. damage to the supporting structure e.g. due to corrosion or a big crack in the glass already. 'A duty of care is one of the three elements that must be proved to prove negligence. Negligence is a tort - a civil wrong. In many cases, negligence has to be proved in order to obtain damages for personal injury or property damage. Examples of negligence cases include road accidents, where an injured person can only claim damages if they can prove that the other person was negligent. Another example is medical negligence - where a patient has been injured during medical treatment, the patient must prove the doctor was negligent. If negligence cannot be proved, the injured party cannot obtain damages.' Steve If you want advice try Steve Greensmith at http://www.europaconsultants.co.uk/ He will give you free advice. David Quote Link to comment Share on other sites More sharing options...
Norman Verona Posted July 15, 2012 Share Posted July 15, 2012 When I ran a dealer group we had 2 or 3 claims a year on faulty vehicles. Our solicitors always said the same thing. We were negligent as we had a duty of care to ensure the vehicle in question was in fully working order. If the vehicle wasn't in full working order we had been negligent in our duty of care. As Steve has had no answer he doesn't know if they are claiming "act of god" or that they were not negligent. I fail to see how a coach window can fall out and it's put down to "act of god" or it fell out for no reason. It's either a bad design or a lack of inspection to ascertain that the window was secure in its fixing. After the recent heavy rain road surfaces will be breaking up and pot holes will appear. So I drive my car along a road and the suspension is badly damaged by a pothole. I claim off the LA who defend it by claiming act-of-god. I think it would not stand up in court. They have a legal duty of care to maintain the roads, they failed to carry out this duty of care. The cause was an "act-of-god" but they are negligent due to failing in their responsibility to maintain the road. Don't misunderstand me, the coach operator didn't willfully leave the window in a state that it would detach itself from the body. However they did fail to ensure it didn't. Knowing Steve he won't bother and will repair the van at his expense. Marshal will probably have to claim on his insurance will will mean increased premiums. Quote Link to comment Share on other sites More sharing options...
XTR2Turbo Posted July 15, 2012 Share Posted July 15, 2012 Norman I think road repairs are not a good comparison. It is clear if roads are broken that council has not maintained them however I understand even here they also try to get out of it by saying they were not aware so it then depends upon how long the hole has been there and whether reported etc ... I agree that a window should not fall out but there is no maintenenace to be done as such on a window so if it had been in the coach for 5 years and no visible warnings or issues, has the coach operator been negligent? What could they have done differently? Perhaps if a brand new coach the manufacturer would be negligent.. As you say no harm writing to them and asking for answers to basic questions to perhaps show negligence and if they don't answer going to the smal claims court but most likley they will just pass to their insurer. I always thought that ownership brought with is responsibilities and if you own something and it harms someone else through no fault of their own then you would think you would be liable but, as I found out with from my own experience, that is not how our legal or insurance system works. The negligent model does probably make most sense but unfortunately it makes it very difficult to pursue small claims. It's also one of the reasons we are developing such a ridiculous health and safety society to protect companies. You can't move now without a Risk assessment and method statement. I filled up at my local shell garage this morning. There was a chap emptying bins and he was wearing a hi viz, safety googles and a hard hat goodness me !!!! Quote Link to comment Share on other sites More sharing options...
Norman Verona Posted July 15, 2012 Share Posted July 15, 2012 XTR2, I think the negligence comes from failing to inspect the window fixings (as well as they would be expected to inspect door and window catches). Take the argument from the opposite way. I cannot see a judge agreeing that the window just fell out and there was nothing that could have been done to stop this happening. Therefore if there was something that could have been done to prevent it, they must have been negligent in failing to do this. Quote Link to comment Share on other sites More sharing options...
lippydave Posted July 16, 2012 Share Posted July 16, 2012 If they argue that it's an "Act of God", ask them for conclusive evidence that God exists... It could run on for a while.... :laugh: Quote Link to comment Share on other sites More sharing options...
Recommended Posts
Join the conversation
You can post now and register later. If you have an account, sign in now to post with your account.