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Local authorities and roadside trees: insurers of nature?

In the recent case of Cavanagh v Witley Parish Council (1) and D Kevin Shepherd (t/a Shepherd Tree Surgeons & Forestry Contractors) (2) [2017] the High Court ruled a parish council to have been negligent in its approach to inspecting a roadside tree which had fallen onto a bus. Pending the appeal hearing in 2018, Gabriel Fay and Paul Davies consider the relevant legal duty, review the evidence and comment on the potential impact of the decision, particularly for highway authorities and those landowners with areas of land with tree stock abutting the highway.

The risk in context

Though obviously tragic for anyone involved, the risk of being struck and killed by a tree or branch falling in or adjacent to areas of high public use is extremely low, with a risk of around 1 in 10 million compared to the risk of death as a result of a road traffic accident of 1 in 16,800. However, when a tree abutting the highway does fail it can and does result in very expensive claims for personal injury with consequences for landowners who have restrictions on the indemnity level of their public liability insurance.

The relevant law: scope of the duty

The duty on those in control of land on which trees stand, in general terms, is a duty to take reasonable care to avoid acts or omissions which can be reasonably foreseen to be likely to injure your neighbour. The test was articulated by Lord Norman in Caminer v Northern and London Investment Trust Limited [1951]:

"…the test of the conduct to be expected from a reasonable and prudent landowner sounds simpler than it really is.  For it postulates some degree of knowledge on the part of landowners  which must necessarily fall short of the knowledge possessed by scientific arboriculturalists but which must surely be greater than the knowledge possessed by the ordinary urban observer of trees or even of the countryman not practically concerned with their care … if a landowner is aware of his ignorance about elms he should obtain the advice of someone better instructed, not a scientific expert in the ordinary case, but another landowner with greater experience, or a practical forester, for example".

As such, the law does not require a landowner to engage an expert unless and until reasonable inspection by the standards of that knowledge discloses or should disclose that the tree might be unsafe. So, there is a clear duty on a landowner to inspect its own trees, but it is not required to instruct an expert until it believes there may be a danger.

In Noble v Harrison [1926] the court made it clear that the owner of a tree is not to become "an insurer of nature" and in Brown v Harrison [1947] the court held that a landowner is only under a duty to act if the defect was evident to a layperson on reasonable inspection. The knowledge of the landowner should be "…commensurate with the land in question and the resources reasonably available to the owner of such land", Goldman v Hargrave [1967]. This is of particular relevance to local authorities who have both large tree stock and historically have been considered by the courts to be endowed with sufficient resources to fulfil their duties.

Duty to inspect

Broadly speaking the case law revolves around the adequacy of the inspection regime, or frequency of inspections and the adequacy of the inspection itself (competence). Many responsible landowners such as highway authorities, borough councils and indeed parish councils as well as private landowners of large areas of land open to the public have, over the years, as a result of legal guidance, implemented a 3 yearly inspection for trees abutting the highway with a default regime of 5 years. This article is concerned with the frequency of inspections in order to fulfil a landowner's duty as considered in Cavanagh v Witley.

Background and facts

The First Defendant was a parish council in Surrey ('the Council') responsible for some 11 square miles of land.

In January 2012, during a period of very high winds, a large mature lime tree fell across a busy road and onto a bus, causing the Claimant driver severe injury. The tree was probably  past one half of its lifespan, was over 20 metres high, leaning towards the road and on a cursory observation, in healthy condition. It was agreed between the parties that the cause of the tree falling was extensively decayed roots, with high winds being a contributing factor or trigger.

The Council operated a management system of three yearly tree inspections, the tree having been inspected in 2006 and 2009 by a competent tree inspector, the Second Defendant tree surgeon, who prepared a report.  The Council's next inspection was due to be carried out in late 2012, soon after the date of the accident.

The arguments

The Claimant alleged that the decay in the tree would have been discoverable upon inspection by a competent arboriculturalist. He also claimed that the Council was negligent in inspecting only every three years, and said there should have been routine inspection every 18 months to 2 years. The Council argued that a three year inspection cycle was perfectly reasonable.

The findings

Judgment was given for the Claimant against the Council.

Sir Alistair MacDuff held:

  • The tree surgeon had inspected the tree. He had not detected the decay but the judge accepted the Council's expert evidence about the date the decay would have been visible, concluding that it would not have been visible until later than 2009 in any event
  • The negligence of the tree surgeon did not therefore cause the accident
  • The location and type of tree and the consequences if it were to fall, were relevant here. The tree was in a high risk location, being beside a road, and following Forestry Commission Guidance (see below) it should have been inspected more frequently than every 3 years, at least every 2 years and ideally every 18 months when trees were in and out of leaf
  • Had the Council taken this approach, the decay would have been discovered well before the accident and the accident prevented.

Expert evidence

Expert arboriculturalists were called by each party and a joint statement of areas of agreement and disagreement were prepared.

Weather conditions

The Judge considered the evidence and noted that the weather at the time of the incident was extremely windy, but not of sufficient severity to cause a healthy tree to fall over.

Relevant literature

In reviewing the evidence, the judge started with the experts' joint statement noting that they were in agreement as to the literature available to land owners providing guidance as to safe practice: 

  • The Department of Transport 2005 Well Maintained Highways – Code of Practice;
  • HSE Sector Information Minute (SIM) 2007 Management of the Risk from Falling Trees;
  • Forestry Commission Practice Guide 2000: Hazards from Trees; and
  • Department of the Environment Circular Roads 52/75 Inspection of Highway Trees.

The Judge dismissed most of the literature as largely unhelpful. The DoT Code helped as a starting point for assessing the frequency of inspection required in any particular situation. The HSE SIM was of little or no value in this case as it did not claim to set the levels of a duty of care required by the prudent land owner within its civil jurisdiction, only those it must meet to avoid criminal prosecution. The DofE circular was relevant for identifying tree conditions to be looked for and competence levels required when carrying out inspections.  

However, the Forestry Commission Guide was the document he relied upon for his main findings.  The relevant parts of this general guide to be applied in determining the extent of a tree owner's duty were set out in para 63 of his judgment:

  • reasonable steps should be taken to identify trees which represent a significant risk to people or property and to deal with them accordingly;
  • the need for a particular tree or group of trees to be inspected depends upon the usage of the area within their potential falling distance.  Inspection is unquestionably necessary where people or high value items of property are within their falling distance.  Clearly however there are remote areas where tree failures are very unlikely to cause injury or damage;
  • the key consideration is foreseeability - if it can be reasonably foreseen that anyone (guest or trespasser) could be at risk, the occupier has a duty of care to minimise that risk;
  • consideration should be given to the type, age and size of trees. Trees, particularly older trees can become diseased and unstable within a relatively short time. An inspection frequency of one year or more is generally advisable where such trees occur on high usage sites;
  • a zone, representing a need for inspection to be carried out more frequently may be appropriate for the strip along the public road.  The need for such zone applies especially if the road is busy and if the trees are large or old enough to represent a significant potential hazard.

Inspection frequency

The Judge highlighted the agreement in the joint statement between the Claimant's and the Council's experts that an inspection frequency of three to four years was reasonable for this type of location.  The Judge noted this had always been the opinion of the Council's expert, but the Claimant's expert, Dr. O'Callaghan, had initially expressed a different opinion in his original report and it was worth setting that out in full:

"The location of the 25 to 30 metre high lime tree adjacent to a bus stop and two benches where people and vehicles are frequently present places the lime tree in a high risk zone and on that basis it should have been inspected more frequently than every three years.  Annual inspections would have been ideal but on an 18 month inspection interval would have been acceptable as on this basis the tree would have been inspected alternately in leaf and out of leaf.  A competent tree inspector would have advised Witley Parish Council accordingly.  An inspection of a single tree on an 18 month interval is not in my opinion disproportionate, as it takes no more than four hours to undertake the inspection and prepare a brief report on the condition of the lime tree".

The crux of the judgment

"In my Judgment, this lime tree alongside a relatively busy public road was in a high risk position.  It required regular inspection.  It may not in itself have been a high risk tree (in so far as no tree is to be deemed high risk unless and until inspection shows it to be in difficulties).  But it presented a higher risk than a smaller tree; than a younger tree; than a tree leaning away from the road.  And there was another feature.  If it failed it would undoubtedly cause severe damage, even if it fell when there was no vehicular or pedestrian traffic.  The house opposite the tree was in a direct line and was in fact damaged.  It was saved from more severe damage by Mr Cavanagh's bus.  If the bus had not broken the fall of the tree, anyone in the upper storey would have been liable to suffer serious injury".

"I have reached the firm conclusion that this tree, in this position, should have been inspected more frequently than every three years… Like all trees, it could be struck with disease at any time.  Latent root rot might be developing but not showing.  A three year period of neglect could be crucial – as indeed it turned out to be.  I wholly concur with Dr O'Callaghan's statement that "more detailed assessments of the tree were required as the Forestry Commission advises". 

It is interesting to compare and contrast the judgement in Middleton v Surrey County Council[2015] where HHJ Reaside stated "…taking into account the guidance from the Highways Code of Practice which suggests inspections every 5 years, I find that a properly carried out 3 yearly inspection system is adequate provided that the operatives are allowed time and opportunity to carry out a closer inspection".

Where are we now?

The findings of the court in this case have the potential for significant ramifications for those land owners who have responsibility for a substantial number of trees, particularly those abutting highways or where the public may have access.  Countrywide, there are motorways and main A roads, many of which are abutted by trees. There are also railway lines, playing fields and parks in various towns and cities throughout the country where trees are present and the public have access to them. This is typical of many authorities nationwide and to impose a duty on local authorities to inspect their roadside trees in "high risk" areas on a bi-annual, or even more frequent basis, is potentially beyond the resources of many landowners.

Permission to appeal has been granted and the case will be heard in the Court of Appeal in 2018 where further guidance can be expected. Should any advice be required in the meantime please contact Gabriel Fay.

Contact

Contact Gabriel Fay, Chartered Legal Executive on D +44 20 7645 4540 or gabriel.fay@dwf.law
Gabriel has particular expertise in claims involving personal injury and property damage as a result of tree failure/collapse and subsidence and is instructed by a number of large insurers, local authorities and land owners. Before training as a lawyer he was an arborist giving him an added insight into cases of this nature.

Paul Davies

D 0117 980 7993 or paul.davies@dwf.law

Paul acted on behalf of Witley Parish Council and its insurers.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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