PI Brief Update

Time to re-examine tree inspection regimes - Simon Jones & Susan Rands, BLM

11/01/19. In Witley Parish Council v Cavanagh [2018] EWCA Civ 2232, 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 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 and to undertake regular inspections.

The lime tree was set in the pavement of a busy public road, was adjacent to a bus stop and shelter, was close to property, leant towards the road, was over 20 metres high and was old and heavy.

It was not disputed 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.

Witley inspected the trees on its land every three years and considered this to be reasonable even though there were previous recommendations for inspections to be carried out every two years. The claimant alleged that the inspections should have been carried out more frequently.

At first, instance the judge stated that the type of tree, its location and the consequences if it were to fall were of specific relevance. He concluded that the tree was in a high risk position and if it failed could cause serious injury and/or damage to nearby property.

The judge referred to the Forestry Commission Practice Guide (2000) (“the FC Guide”) in respect of a landowner’s duty regarding trees. Of consideration, is whether the tree was within falling distance of an area where there were people or high value property, whether there was a risk of serious injury and/or damage and whether this risk was reasonably foreseeable.

It was held that the lime tree, being in an extremely high risk position, should have been inspected at least every two years and ideally every 18 months when trees were in and out of leaf. Witley treated all of its trees with the same care but the judge found that there needed to be a nuanced approach taking account of the size, age, type and location of each tree.

It was concluded that if Witley had inspected the tree more frequently (every 2 years or 18 months), the decay would have been discovered well in advance of the accident and the tree would have been felled or otherwise made safe. As a result, Witley was found liable for the claimant’s accident.

Witley appealed the decision in respect of the judge’s finding of fact and evaluation of the evidence. The Court of Appeal concluded that he had been entitled to reach his findings on the evidence and to rely on the FC Guide. As a result, the appeal was unsuccessful.

The Court of Appeal took the opportunity to reiterate the relevant legal principles in respect of a landowner’s duty in respect of trees. In these cases, there is a duty to actas a reasonable and prudent landowner and to act where there is an apparent danger. Although this should not amount to an unreasonable burden or force the landowner to act as the insurer of nature.

Also, there is a duty on a landowner to carry out inspections on a regular basis and in certain circumstances (including where there is some form of trigger), to arrange for fuller inspections to be undertaken by an arboriculturalist. In addition, the resources available to the householder may have relevance as to the way that this duty is discharged.

As a result of this judgment, councils and property owners with responsibility for a substantial number of trees, should fully re-examine their tree inspection regimes (in particular for roadside trees) taking into account the size, type and location of each and every tree and the risk to both people and property in the event of a failure. Any regime that simply involves treating tree stock as a whole, essentially a “one size fits all” inspection policy with no regard to specific risk is likely to be considered insufficient.

Landowners should review the FC guide and consider whether their policies and procedures are consistent with it – at the very least in relation to the type of tree that we are concerned with here.

In respect of the adequacy of an inspection regime, the fact that a tree appears healthy is largely irrelevant as greater consideration will be given to whether it is in a high risk location. Also, in cases of this nature, the courts will consider whether the risk of injury and/or damage was foreseeable, the likelihood of it occurring, the severity of the injury and/or damage that could result and what reasonably could have been done to minimise the risk.

Co-authored by casualty partner Simon Jones and commercial litigation associate Susan Rands.

Image ©iStockphoto.com/stocknshares