Sixty years ago, the House of Lords looked at the risks raised by falling trees in Caminer v Northern & London Investment Trust Ltd [1951]. The case involved a tree falling on Mr Caminer’s car, causing injury and damage. The House of Lords decided that, in the absence of any evidence that the defendant had failed to take reasonable care, it was not liable.
However, in the more recent case of Chapman v London Borough of Barking and Dagenham [1998] - involving a similar incident - the Court of Appeal upheld the original decision in favour of the plaintiff. It was accepted by both sides that the defendant had a duty to inspect roadside trees regularly. However, no regular inspection programme had been in place for a decade before the accident. The council argued that the limb of the tree that had fallen was sound or, if it was diseased, that this fact would not have been discovered on inspection. On the evidence, the defendant’s arguments were rejected. The Court of Appeal agreed with the original judge that, given the location and condition of the tree, an inspection should have been carried out before the accident happened.
Who should inspect?
In the Poll v Viscount Asquith of Morley [2006] case, the High Court said that there were three possible levels of inspectors:
- Level 1 - a generalist individual with no specialised tree knowledge.
- Level 2 - a "competent" individual with sufficient training and expertise and/or qualifications to identify tree hazards, assess the level of risk and make appropriate management recommendations.
- Level 3 - an expert individual with the highest skills and knowledge.
The court decided that the inspection should have been carried out by a Level 2 inspector.
HSE involvement
In 2002, the Health and Safety Executive (HSE) successfully prosecuted Birmingham City Council, which was fined £150,000 after three people were killed by a falling tree. The judge said that the condition of the tree (90 percent of its roots had rotted away) and the danger that it presented would have been obvious to anyone carrying out a close inspection.
In 2007, the HSE/Local Authority Enforcement Liaison Committee published guidance on how to manage the risks from falling trees. Among other things, it said:
- Local authorities and owner/occupiers should carry out an overall assessment of the risks from trees. At the very least, they should zone trees according to risk, based on the position of the trees and the degree of public access.
- For trees in a frequently visited zone, there should be a system for periodic - and proactive - assessments. This should involve a quick visual check for obvious signs that a tree is possibly unstable.
- Once a tree has been identified as having a structural fault that carries a serious risk to others, action should be planned and taken to manage that risk.
The HSE emphasises that the risk of being struck or killed by a falling tree is extremely low - only five or six people in the UK are killed each year. However, the dangers have been highlighted again in two recent decisions.
The Mullinger case
In Mullinger v National Trust [27 July 2011], the claim stemmed from an incident in June 2007 at Felbrigg Hall in Norfolk, which is owned by the National Trust. On the relevant day, it began to rain and a group of primary school children sheltered under a beech tree that was probably between 160 to 180 years old. Without warning, a large branch (weighing about 1.5 to 2 tons) fell on the group of children. Tragically, Daniel Mullinger died and others suffered fractures and serious injuries.
A claim was brought - both in negligence and under Section 2 of the Occupiers’ Liability Act 1957 - on the basis that the National Trust had failed to take reasonable care to see that visitors would be reasonably safe.
The National Trust guidelines said that trees in or near public places should be inspected in order to assess whether they represented a risk to life or property. If risks were identified, then remedial action had to be taken. The thrust of the case against the defendant was that its tree inspectors, for whom it was vicariously liable, had failed to exercise reasonable care.
Mr Justice Mackay accepted that the inspectors had been given adequate training and instruction in how to approach their task, and had also used the level of care to be expected of reasonably competent people doing their job. Consequently, the National Trust was not negligent or in breach of its duty. The Judge said:
"In the event, their judgment was wrong and disastrous consequences followed, because of the cruellest coincidence of the failure occurring at the very moment this small group was standing under the branch when it did so. But risk assessment in any context is, by its very nature, liable to be proved wrong by events, especially when as here the process of judging the integrity of a tree is an art not a science, as all agree."
It is of some interest that Mackay J held that the test for negligence was the well known test formulated in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, which is applied in cases of professional negligence - " ...that is to say the standard of an ordinary skilled person professing to have the skill in question. He is not acting negligently if he acts in accordance with a practice accepted as proper by a responsible body of opinion in the particular field."
The Micklewright case
In Micklewright v Surrey County Council - which was decided by the Court of Appeal the day after the Mullinger judgment - Joanne Micklewright brought a claim on behalf of her deceased partner. He had been fatally injured in August 2007 by a branch (weighing nearly a ton) that broke away from the trunk of an ancient oak tree some 25 feet above where he was standing. The case was brought against the council as occupiers and as highway authority.
The council was responsible for a network of roads – totalling roughly 3,600 miles in length – that was bordered by approximately two million trees. At the date of the accident, the council had no system of inspection in place, although they were in the course of developing one. There were also no written records in respect of the tree at the centre of the case.
The Court of Appeal ruled, however, that just because an occupier does not inspect its trees, it does not follow that it will automatically be liable if someone is injured. A claimant must show that if the occupier had complied with its duty, the defect or danger in the tree would probably have been noticed. In this case, the claimant had not been able to demonstrate that a reasonable inspector would have been put on notice of possible problems with this particular tree. Consequently, the claim failed.
Practical implications
Local authorities and landowners need to have in place an inspection and maintenance scheme for their tree stock. This should be a reasonable system, taking into account the size of the part of the tree most likely to fail and the distance it could fall, the probability of failure, the consequences of failure depending on its location, the use of the area and the degree of public access. A visual check should be carried out – followed by planned action if necessary – and the whole process should be documented.
Provided appropriate systems are in place, HSE prosecutions and civil claims can be successfully defended. Kennedys currently has two ongoing cases involving fatalities. In each instance, the HSE has been satisfied with our clients’ system of inspection and no prosecution has followed.