Time to re-examine inspection regimes?
What do Eleanor, Fionn, David, Georgina and Hector have in common? They were all names of storms in the UK since the beginning of this year and were no doubt the cause of much damage, both to person and property.
In the Court of Appeal judgment now handed down in Witley Parish Council v Cavanagh [2018] EWCA Civ 2232 the court has considered the issue of liability for damage when a tree falls in stormy winds. It is a judgment that will resonate for councils and landowners as to the approach of the court when considering the adequacy of an adopted tree inspection regime.
The facts
The claimant was seriously injured when a large mature lime tree fell across the road onto the single-decker bus he was driving. The tree falling also caused extensive damage to the upper part of a house on the opposite side of the road which was only saved from more severe damage by the claimant’s bus.
The tree was on land owned by Witley Parish Council (‘Witley’) which accepted that it owed a duty of care to act as a reasonable and prudent landowner including acting to avoid apparent danger and with a duty to undertake regular inspections. Witley operated a system of inspecting the trees on its land every three years and considered that to be reasonable. In his claim against Witley the claimant alleged that there should have been more frequent inspections.
By the time of the trial all parties were in agreement that the tree had fallen due to extensive decay in the root system extending into the base of the trunk, with high winds being a contributory factor or trigger.
The first instance decision
Adopting the approach that such a tree in an extremely high risk position should have been inspected more frequently than every three years, especially having regard to the Forestry Commission Practice Guide (2000) (‘the FC Guide’), the judge found that there needed to be a nuanced approach taking account of the type, age and size of trees together with their location.
Whilst the claimant was unsuccessful in his claim against Mr Shepherd (the second defendant – a tree surgeon instructed by Witley to inspect and report on the tree) on the basis that his negligence had not caused the accident there was judgment in his favour as to the claim against Witley whose policy of inspection of the lime tree was inadequate.
The judge concluded this lime tree should have been inspected at least every two years and ideally every 18 months when trees were in and out of leaf. Witley appealed.
The appeal decision
Rejecting the appeal, the Court of Appeal took the opportunity to reiterate the relevant legal principles as to a landowner’s duty in respect of trees. By reference to the judgment in Stagecoach South Western Trains v Hind [2014] they are (in summary):
- to act as a reasonable and prudent landowner;
- to act where there is a danger apparent to him/her (although that should not amount to an unreasonable burden or force the landowner to act as the insurer of nature);
- to carry out inspections on a regular basis;
- in certain circumstances (including where there is some form of trigger) to arrange for fuller inspections by an arboriculturist;
- the resources available to the householder may have relevance as to the way that the duty is discharged.
For advice about your trees, a ground-based tree survey or aerial inspection, internal examination of a tree’s condition, or for a free written quote for work you’re already considering, contact Andrew on 01256 883061, 07771 883061, by email at Andrew@primarytreesurgeons.co.uk or via Twitter @PrimaryTreeSurg