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Falling trees: calm before the storm

As insurers face their biggest UK storm related losses for a number of years this may impact upon local authorities in the event that insurers seek to recover their losses arising from damage caused by falling trees that were the responsibility of the local authorities. St. Jude's storm hit southern England on 27 and 28 October 2013 causing substantial damage and disruption. The cost to UK insurers is now forecast to be as much as £900 million. Further damaging storms hit more widespread parts of the country throughout December 2013 and into January and February 2014.

Local authorities are responsible for many thousands of trees located on the highway, in parks and in other open spaces. Clearly there is a substantial burden on local authorities to inspect and maintain the trees for which they are responsible.

A landowner's duty to take reasonable care in respect of trees was considered, but not doubted, by the House of Lords in Caminer v Northern and London Investment Trust Ltd [1950]. Several cases have considered the extent of the duty, and the issue of breach of duty turns principally upon whether a reasonable system of inspection should have revealed that the tree was diseased and liable to fall. In Caminer external examination of the tree could not have revealed its diseased condition and the House of Lords did not consider that there was any duty on a landowner to bore into the trunk of the tree to ascertain its condition in the absence of any other signs of disease. In the later case of Chapman v London Borough of Barking and Dagenham [1998], however, the Court of Appeal refused to interfere with the judge's finding that signs of decay found after the tree had been felled showed active bacteria which indicated that there had been an open wound on the tree. This wound, according to the judge, could have been observed on inspection from the ground.

The system of inspection was considered by the High Court in Bowen v The National Trust [2011]. The defendant's instruction to its tree inspectors combined the risk that a branch or tree might fall with the location of the tree. The judge rejected a submission that the defendant's system concentrated too much on the location of the tree, but he also rejected an argument that evidence of the bare possibility of a failure of a tree branch in a medium-risk location was enough to trigger appropriate remedial action. This would set the duty too high, requiring the mere identification of potential defects in trees without consideration of their significance. In this case the tree inspectors formed a judgement which, in the event, proved to be wrong, but this did not amount to a breach of duty.

The qualifications required by a tree inspector have also been considered. In Poll v Raymond Viscount Asquith of Morley [2006] it was considered that a landowner responsible for a large number of trees should employment someone with sufficient training to be able to identify tree hazards, assess the level of risk and make appropriate recommendations. There was no need for him to employ a full qualified arboriculturalist. In fact local authorities are likely to employ inspectors with sufficient training. In Micklewright v Surrey County Council [2011] the judge held that an inspection system would be appropriate if carried out by a person with a working knowledge of trees as defined by the HSE.

Apart from breach of duty, another issue which must be considered is responsibility for the tree. Ordinarily this would fall upon the owner of the land. However, the position is not always straightforward. A recent case handled by this firm involved a motorcyclist colliding with a fallen tree. It transpired that the tree had been located directly on the hedge boundary which existed between the highway and the private owner's land. Neither party accepted responsibility for the tree and therefore no steps had been taken to inspect and/or maintain the tree. Joint engineering evidence was obtained which resulted in the exact centre of the tree being plotted less than one metre onto the private land. On this basis the local authority was able to avoid liability. However, the case did identify the very small margins that can be involved when identifying ownership of or responsibility for a tree.

If a claim is brought against a local authority for damage and/or injury caused by a fallen tree it is imperative that ownership of the tree is first established. Thereafter, in order to have reasonable prospects of maintaining a defence, detailed evidence (both in the form of witness statements and disclosure of relevant documents) will need to be obtained on behalf of the local authority addressing the system of inspection and maintenance in place for those trees in relation to which the local authority has a responsibility.

Contact

For further information please contact Mark Douglas, Director on 0191 233 9737 or John Morrell, Director on 020 7645 9538.

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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