UK: Things Fall Apart

Last Updated: 7 April 2011
Article by Nick Bathurst

Micklewright v Surrey County Council (2010), County Court

A recent case confirms that causation is still a critical issue in tree-related claims against local authorities and that breach of duty alone will not suffice in establishing liability.

Background

This decision arises from circumstances appropriately described by the judge as "tragic". It concerns a claim brought by the executrix of the estate of Christopher Imison, who died after a tree branch fell on him. The incident occurred on a summer's day in 2007 when the claimant, the deceased and their son decided to travel to a local park for a bicycle ride. As the deceased parked the car and unloaded the bicycles from the rear, a branch, later found to weigh over 900kg, fell from a nearby oak tree and struck him. The deceased was taken to hospital by air ambulance but he died a week later. A claim was brought against the defendant which, as Highway Authority, had responsibility for the oak tree in question.

The claimant's case

Damages were agreed in the sum of £500,000, leaving only the issues of liability outstanding. The claimant's main allegations were that the defendant was in breach of its common law duty and its statutory duty under the Occupiers' Liability Act 1957. The claimant contended that the defendant did not have a proper system of inspection in place at the time of the incident and that a suitable check carried out by a person with a working knowledge of trees as defined by the HSE would have identified the defect that caused the branch to fall and led to its removal.

The defendant's case

The local authority accepted that, for the purposes of this claim, it had responsibility for the oak tree, and argued that it had a proper system of inspection.

The evidence

A joint statement by the experts for both parties placed the age of the oak tree at between 200 and 300 years old. It was described as being of normal vigour and of high amenity value and was one of over two million trees along Surrey's road network. The local authority had appointed a Mr Banks in 2004 to improve its inspection system for all of these trees. Mr Banks did so by introducing a cyclical system whereby two inspectors would travel slowly along the designated roads by car, with one driving and one observing. Any defects would be noted and the location marked using GPS equipment. However, there was a backlog.

The claimant's expert was critical of this method of inspection and stated that if the inspectors had travelled on foot and driven between locations they could have inspected a greater number of trees, and more effectively.

The judgment

The judge held that, by the time of the trial, the scheme of inspection could not be criticised and was no doubt effective. However, the problem lay in the fact that the scheme had not been in place long enough for the oak tree to have ever been subject to an appropriate inspection. Therefore, at the time of the accident, the defendant did not have an adequate system of inspection in place, as the required inspection regime had not been fully implemented. However, the judge then considered the crucial question, "would an adequate system have avoided the accident?" The judge held that it would not. Even if there had been a proper system of inspection in place, which the judge held should be a quick visual inspection by someone with a working knowledge of trees as defined by the HSE, the defect in the branch would not have been revealed as the real damage was internal and there was no evidence that there would have been significant external signs of this such as leaf discolouration or cracking. In other words, the risk was not reasonably foreseeable.

What we can learn

  • This is a welcome decision for local authorities. Despite the judge's (understandable) sympathy for the claimant, he still found that she had failed to discharge the burden of proof.
  • The local authority's duty is to take such care as in all the circumstances of the case is reasonable.
  • What is reasonable varies with the circumstances, therefore the local authority must make some assessment of the potential risk presented by any tree on its land, and inspect that tree at an interval appropriate to that, by a person with appropriate basic training.
  • The person carrying out the basic inspection should be alert to signs of decay/damage. That should then be followed up by a detailed inspection by an arboriculuralist if required, but here, there were no such signs.

Permission to appeal has been granted.

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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