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  EWCA Civ 2232 the court has considered the issue of liability for damage when a tree falls in stormy winds. It’s 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 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
Of relevance was the location and type of the tree and consequences if it were to fall. It was set in the pavement of a busy public road; adjacent to a bus stop and shelter; close to property; leant towards the road; was over 20 metres high, old and heavy. As a result the judge determined that it was in a high risk position and that if it failed it would cause severe damage.
The principles to be applied in determining the extent of a tree owner’s duty (by reference to the Forestry Commission Practice Guide (2000) (“the FC Guide”) were outlined to be;
- Where the tree is within an area where people, or high value property, are within falling distance – there is a duty to inspect;
- Where it can reasonably be foreseen that there is a risk of serious injury / damage – there is a duty to minimise that risk.
Such a tree in an extremely high risk position should have been inspected more frequently than every three years especially having regard to the FC Guide. Witley treated all of its trees with the same care; 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. This would provide for the application of a more rigorous system of inspection to those trees that merited special attention.
Adopting that approach 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. Had Witley adopted that regime, the decay would have been discovered well in advance of the accident and the tree would have been felled or otherwise made safe.
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. 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  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 arboriculturalist;
- The resources available to the householder may have relevance as to the way that the duty is discharged.
Given that Witley was refused permission to appeal on the basis that the judge had failed to apply these principles correctly, the appeal was directed only with the judge’s findings of fact and evaluation of the evidence. The focus of the appeal was accordingly the way in which the judge had approached the arboricultural expert evidence; that was rejected on appeal LJ Flaux concluding that the findings that had been made were those the judge was entitled to make in considering the evidence before him.
Further, criticism of the extent to which the judge relied on the FC Guide (as opposed to HSE guidance) was rejected. Indeed the appeal court added to the reliance on that as evidence, making particular reference to the FC Guide so far as it relates the zoning of trees in certain locations as needing more frequent inspections including the strip along the public road. Similarly argument that the leaning of the tree was not a relevant factor was dismissed; this was seen as a matter where the judge was able to exercise his own common sense.
What this means for you
Councils and property owners with responsibility for a substantial number of trees should be fully re-examining 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.
Both the judgments at first instance and on appeal heavily relied on the FC Guide for their reasoning. Whilst it is just one of a host of literature available to landowners providing guidance as to safe practice for those concerned with tree inspection regimes, it’s clear that it carried significant weight and it would be worthwhile for landowners to review that guidance 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.
It’s worth bearing in mind that when looking at the adequacy of an inspection regime the fact that a tree appears healthy is largely irrelevant – of greater consideration is whether it is in a high risk location. It probably also did Witley no favours that they had failed to follow previous recommendations providing for inspection every two years when adopting the three year cycle. Good record keeping of the reports for each tree and taking account of advices given is essential.
Similarly Insurers for their part may, in the light of the outcome of this claim, seek greater detail as to the inspection regime being adopted when providing cover to landowners; generally but also with a special focus on roadside trees.
Co-authored by casualty partner Simon Jones and commercial litigation associate Susan Rands.