Solicitors

The recent downturn in the weather will have been a source of consternation to many home owners.

Some properties will have been substantially damaged by the high winds: some severely affected by the snow. Such problems are irritating in themselves, but these problems can also be compounded by the issue of occupier’s liability. In law property owners are legally bound by a duty of care owed to anyone who visits their property or its grounds.

The law states that occupiers are liable for prosecution if it can be demonstrated that they were negligent in their duty to protect others from harm, and that any maintenance undertaken must be reasonable and appropriate. But, how far does this duty extend, and what evidence do the courts take into account when determining whether an occupier has or hasn’t been negligent? Hopefully the following court judgements will make the issue a little clearer.

Bowen v National Trust

In Bowen v National Trust, the court found that the Trust’s risk assessment for cutting trees and prioritising remedial for damaged trees was reasonable, even though a falling branch had killed one child and injured three others. The children were sheltering from the rain, when the branch broke and fell to the ground. They had been walking along a designated trial in the 250,000 Trust-owned Estate. The trust had a system in place which identified damaged trees: the system identified the magnitude of risk (how far the branch would fall and what damage it might do), the probability of how far the branch was likely to fall, and the consequences, given the location and how often the area was visited. The tree had been inspected and was found to be damaged, but the Trust did not believe that it posed anything other than a medium risk. Had it been identified as high risk, it would have been repaired immediately.

The Judge dismissed the claims, holding that the Trust’s system of risk assessment was reasonable, and that the inspectors had exercised appropriate care and had received adequate training and instruction. Any further requirement on the Trust was held to be more than was reasonable. The Trust had ensured that the children were reasonably safe to use the woodland area and had, therefore, discharged its legal duty. The court held therefore that the Trust had not been negligent and had not breached its duty of care under the Occupier’s Liability Act, 1957.

Micklewright v Surrey County Council

The County Court held that the Council was not liable for negligence when a diseased tree branch overhanging a public parking space, broke and fell causing fatal injuries. The Claimant was the partner of the deceased who had died from the injuries suffered. A branch had fallen from a tree in Windsor Great Park and killed the deceased as he was unloading a push bike from the roof of his car which was parked in a marked parking bay in a road adjacent to the park.

The court heard that the tree was between 200 to 300 years old, and there had been concerns that the overhanging branch, which was estimated to be 15 metres long and weighed 900 kilograms, might be a danger. However, although it was agreed that the tree was in fact infected by a fungal disease, there was no evidence to suggest that it posed a serious or imminent danger to the public. Two shorter branches were trimmed, though neither was found to be infected.

Surrey County Council had a system for dealing with such problems, set up in 2004 by arboriculturalist, Graham Banks, to deal with some 2 million tress and 5,700 kilometres of road network. The system comprised:

• Maintenance of the trees within the Authority on a 3 year rolling inspection by 2 qualified inspectors.
• Routine highway inspection to report on any noticeable tree defect. The tree in question had been inspected in 2007, and no visible defect was noted.
• 43 highway officers were trained and despatched to identify potentially actionable problems with trees reported by the public.

All the parties agreed that an appropriate system for inspection was for a quick visual inspection of the trees and a written report every year or two by a qualified person with a working knowledge of trees as defined by the Health and Safety Executive. The Claimant’s expert maintained that there would have been a noticeable difference between a healthy branch and a diseased branch and that its position and size should have been enough to warrant a referral to a qualified inspector for further checks. The Defendant’s expert witness maintained that there would’ve been no structural defect visible, even to an inspector who climbed up to take a closer look. There was no evidence to suggest that the tree should have been inspected further. The Claimant alleged that the Council was liable in negligence under the Occupier’s Liability Act, 1957.

The judge held that neither common law nor statute requires an owner or occupier to make his/her land completely safe.

Their only duty is to take such care as in all the circumstances of the case is reasonable. The judge found that the Council’s system for tree inspection was in fact inadequate. Nothing had been done to address the problem prior to 2004. It was growing in a high risk area, and because the tree was “a massive tree, overhanging a public road and designated parking area, alongside a well-known and much frequented public park”, there ought to have been a record of it.

However, he also noted that even with an adequate inspection system, there were no guarantees that the problem would have been spotted and the accident prevented. Matters were compounded by the fact that the Council had the cut and removed some of the branch the day after the accident.

In view of the evidence available, the judge took the view that the Claimant had failed to discharge the burden of proof and establish that, had a better system have been in place, the accident could have been avoided. He argued that on the balance of probabilities, the accident had been unforeseeable.