UK: Falling Tree Branches: Tragic Accident Or Owners' Responsibility?

Last Updated: 12 January 2012
Article by Nick Bathurst

Two recent cases highlight the difficulty that a claimant may face when trying to bring a claim for damages caused by falling branches. Although the law is clear that a person responsible for land on which a tree is located owes a duty of care to individuals injured by falling branches, we examine where claims can be successfully defended.

Breach of Duty – Bowen v National Trust (High Court, 2011)

Background – a real life tragedy

One child was killed and three others seriously injured by a falling branch during a primary school trip, when their class sheltered under a 180-year-old beech tree in heavy rain at Felbrigg Hall and Gardens in Suffolk. The tree was a little way from the path, and the group had wandered over to it for shelter when it started to rain. The tree had been inspected twice by trained National Trust tree inspectors, and tell-tale signs of damage to the branch noted but not considered significant. In addition, the inspectors operated under a National Trust instruction which set out three risk zones (high, medium, low) depending on the proximity of the tree to areas of frequent public use like a path. As the tree in question was located in a medium risk zone, ie away from the path, the inspectors did not consider further investigations or remedial works necessary.

The claimants' case

The parents of the children brought a claim against the National Trust alleging breach of the common duty of care in section 2 Occupiers' Liability Act and breach of duty in tort at common law. The claimants argued that the inspectors had failed to take reasonable care when making their inspections. The claimants also alleged that the National Trust's instruction was inadequate as it might mislead the inspectors into assessing risk too biased by the basis of location.

The defendant's case

The Trust argued that had the tree been located in a high risk zone then the inspectors would have undertaken a detailed inspection due to the signs of potential damage; however, in this instance, the tree was in a medium risk zone and thus further inspection was not deemed necessary. The National Trust argued that even though there was a possibility of a branch falling in a medium risk zone, this was not enough to warrant a detailed inspection, tagging and remedial works.

The decision

The judge held that a landowner is not under an obligation to ensure the total safety of its visitors, merely to take reasonable care to provide reasonable safety. Although the tree inspectors had made a judgment which was subsequently proven wrong, the judge held that they had used all the care to be expected of reasonably competent persons doing their job. The judge also added that "risk assessment in any context is by its very nature liable to be proved wrong by events, especially when ... judging the integrity of a tree is an art not a science". Irrespective of the disastrous consequences of the tree inspectors' decision, it could not be said that they were negligent or in breach of their duty. As such, no legal liability attached to the National Trust.

Causation – Micklewright v Surrey County Council (Court of Appeal, 2011)

Background – another personal tragedy

The first instance decision was reported in our spring edition of this newsletter. To recap, the claimant's husband was killed by a falling oak tree branch as he unloaded their car at the side of the road. In the immediate aftermath of the incident, the Council's employees attended the scene, chopped up and disposed of the majority of the branches. The following day, the Council's inspector visited the scene to take photographs of what was left but did not see any signs of decay.

A claim was brought against the Council which, as the Highway Authority, owned and had responsibility for the oak tree in question.

The first instance decision

Stated that the Council did not have an adequate system of inspection in place for its highway trees. In addition, there were several evidential issues including the fact that the Council's employees had disposed of most of the evidence on the day of the incident. The judge accepted that this presented a problem for the claimant and in such circumstances the Court should adopt a "benevolent" approach to the claimant's evidence.

Despite these issues the claim against the Council failed on the grounds that the defect in the tree would not have been detected even if there had been a reasonable system of inspection in place. A reasonable inspection, the judge held, would have been "a quick visual inspection carried out by a person with a working knowledge of trees as defined by the HSE".

The appeal

The claimant appealed on the basis that a benevolent approach had not been taken by the trial judge to the claimant's evidence. The Court of Appeal refused to interfere with the trial judge's decision and maintained that the lower court had heard the available evidence and the experts and that the judge had directed himself to the law correctly.

The Court of Appeal agreed with the trial judge that consideration had to be given to (i) what sort of inspection would have been required (ii) had such inspection been carried out, would it have revealed anything warranting a more expert inspection, and (iii) would that inspection have resulted in the removal of the branch. The Court of Appeal agreed with the trial judge that the material defect would not have been revealed upon reasonable inspection, as described above.

What can we learn?

  • We believe both of these cases represent common sense decisions for owners of land containing trees and of course to local authorities.
  • The occupier of land is not under a duty to ensure the safety of visitors.
  • The duty which exists to inspect trees is to take such care as is reasonable in the circumstances. If a reasonable inspection is not conducted, occupiers and local authorities will still only be legally liable if causation can be proved.
  • It is vital to ensure that clear written instructions on tree inspections are produced, setting out: which members of staff are competent to assess trees, minimum standards of inspection, when risk assessments are required, the records to be kept and the appropriate remedial action to be taken if necessary. The court saw all these factors as being in the National Trust's favour in Bowen.
  • Although these cases are incredibly sad, the correct application of the law is still necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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