A root and branch discussion on occupier's liability for trees
Setting the scene
“The tree which moves some to tears of joy is in the eyes of others only a green thing that stands in the way. Some see nature all ridicule and deformity... and some scarce see nature at all. But to the eyes of the man of imagination, nature is imagination itself.”
At the outset, and rather not in keeping with the received thinking of my profession, I am going to nail my colours to the mast and declare myself an out and out tree enthusiast. Don’t get me wrong, I am no green activist, I like a good road scheme as much as the next lawyer/surveyor. My common frustration is that a tree which is a thing of beauty and amenity is often given a crew-cut by an occupier of land with sometimes misplaced concerns that it might be secretly dangerous.
As the case law which I am about to outline shows, occupiers of land should not be put by the law into a position where they feel the need to be ‘insurers of nature’ where it comes to trees. What has prompted all of this is the recent case of Stagecoach South Western Trains Limited v Hind and anr.
The case concerns Rose Cottage, a property in Staines owned by a Ms Hind. Rose Cottage backed onto a railway line, where on or near the boundary a mature Ash tree grew. On a windy winter night part of the Ash tree blew down, falling across the railway line. Shortly afterward an empty train collided with the part of the tree on the railway line. The tree caused some damage to the train, for which the train company decided to seek damages from Ms Hind. Ms Hind had recently commissioned some work on the tree, which was undertaken by Mr Steel, a tree surgeon. Evidently not wanting to miss an opportunity one train company also sought damages from Mr Steel and it was unsuccessful in that regard.
The Honourable Mr Justice Coulson, in the sort of lucid and carefully considered judgment which only a Technology and Construction Court Judge can give, summarised the law applying to Ms Hind’s position as follows:
(a) The owner of a tree owes a duty to act as a reasonable and prudent landowner;
(b) Such a duty must not amount to an unreasonable burden or force the landowner to act as the insurer of nature. But he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes;
(c) A reasonable and prudent landowner should carry out preliminary/informal inspections or observations on a regular basis;
(d) In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists. This will usually be because preliminary/informal inspections or observations have revealed a potential problem although it could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections.
(e) The resources available to the householder may have a relevance to the way in which the duty is discharged.
Ms Hind was an enthusiastic gardener, and took an active interest in the care of her trees. Over the period 2001 - 2009 she had spent over £4,000 on tree surgeons for her garden. Some of the work which Ms Hind had commissioned involved cutting the deadwood from the offending Ash tree, and generally keeping it tidy. However the defect in the tree which caused it to fall on the railway line on that night resulted from an ‘included bark union’ in one of two stems forming the main trunks of the tree. The Judge found that this would not have been an obvious concern to a reasonable and prudent landowner, and in any event, in this instance the offending area was covered by a thick layer of ivy. In this case the train company was unsuccessful.
Although Mr Justice Coulson provided an eloquent summary of the law, some queries remain. Does ‘the duty to act where there is a danger which is apparent to him and which he can see with his own eyes’; means that the characteristics of the reasonable and prudent landowner are always those of an amateur? Some commentators seem to indicate that a ‘large and well resourced’ landowner might be expected to have an army of expert arborialists surveilling every bough and twig for hidden hazards on a very regular basis. I think that would be an overstatement of the duty imposed by the common law even upon large institutional landowners.
Mr Justice Coulson referred to some of the case law and quoted from it as follows:
“…If there is a danger which is apparent, not only to the expert but to the ordinary layman which the ordinary layman can see with his own eyes, if he chooses to use them, and he fails to do so, with the result that injury is inflicted, as in this case, upon somebody passing along the highroad, the owner is in those circumstances responsible, because in the management of his property he had not acted as a normal reasonable landowner would act.”
"An unreasonable burden must not be placed on the reasonable owner: “the standard to be taken should be that of an ordinary landowner and not an expert. It was neither the duty nor the practice of the ordinary prudent landowner to make a meticulous examination of its individual trees.”
Yet there is a notion of a requirement for a large organisation to have trained arborialists roaming the grounds of their estates ticking boxes indicating the presence of ‘actively lifting root plates’ and the like. Unfortunately there are conflicting authorities on the matter.
In one House of Lords case in 1952 it was said:
"The test of the conduct to be expected from a reasonable and prudent landlord sounds more simple than it really is. For it postulates some degree of knowledge on the part of landlords which must necessarily fall short of the knowledge possessed by scientific arboriculturists but which must surely be greater than the knowledge possessed by the ordinary urban observer of trees or even of the countryman not practically concerned with their care."
On the other side are a host of cases (which go no higher than the Court of Appeal) and seem to take as read that an ‘expert’ should be employed to conduct regular detailed inspections of each and every tree. Bowen v National Trust for Places of Historic Interest or Natural Beauty might be said to proceed on this basis, although the manner in which the inspections were carried out was not impugned. Chapman v London Borough of Barking & Dagenham proceeded on the basis that the Council should have had an 'expert' examine the offending horse chestnut tree, and then based upon this initial examination decide whether or not to climb it for a closer look. Finally in Poll v Viscount Asquith of Morley, and anr a multi stemmed Ash tree fell into a road causing Mr Poll to hit it on his motorbike and suffer injury. That case was presented to the High Court on the basis that there were three levels of tree inspector, and the Court found that the appropriate level of inspector would have been a ‘level two’ which on any account would appear to be a more accomplished 'tree person' than the individual postulated by the House of Lords in 1952.
These later cases might be explained by comments that appear in an occupier's liability case to the effect that a ‘higher’ standard of care might be expected of a “…large organisation with ample staff…”
The correct basis for defining the duty is as set out by Mr Justice Coulson in Hind where he commends the HSE guidance published on the topic:
55 The other document was the SIM 01/2007/05 published by the Health and Safety Executive (“HSE”). This document is principally aimed at local authorities and those dealing with trees on a regular basis. It sets out to balance, on the one hand, the benefit and value of trees, with the “limited” risk that they pose. At paragraph 7 of the document, the HSE say:
“Given the large number of trees in public spaces across the country, control measures that involve inspecting and recording every tree would appear to be grossly disproportionate to the risk. Individual tree inspection should only be necessary in specific circumstances, for example where a particular tree is in a place frequently visited by the public, has been identified as having structural faults that are likely to make it unstable, but a decision has been made to retain it with these faults.”
At paragraph 10(ii) the guidance goes on:
“For trees in a frequently visited zone, a system for periodic, proactive checks is appropriate. This should involve a quick visual check for obvious signs that a tree is likely to be unstable and be carried out by a person with a working knowledge of trees and their defects, but who need not be an arboricultural specialist.”
Would the effect have been obvious?
In another tragic case the bough of an old oak in Windsor Great Park fell upon a father, Mr Imison, who was unloading bicycles from his car in order to go along with his family on a bicycle ride. Mr Imison’s injuries were fatal. It is of interest that the defendant (Surrey County Council) was responsible for 3,600 miles of roadway bordered by some 2 million trees; in 1975 Central Government had issued a circular to it as a Highway Authority to the effect that it should conduct inspections of such trees. 29 years later, and around three years before the tragic accident befell Mr Imison, the defendant engaged someone to do that job; however he had not yet made it to the offending tree.
The Court, following the 1952 House of Lords decision concluded that whilst the defendant had failed in its duty to inspect the trees for which it was responsible, the defect which caused the bough to fall upon Mr Imison would not have been obvious upon making the appropriate inspection. The defendant was not liable.
In this case, it is noteworthy that the defendant had all but destroyed the remnants of the bough which had fallen. If such a terrible event should occur, occupiers must put in place procedures to ensure that evidence is preserved.
Location, location, location?
The final matter arising from the analysis above is whether or not a tree in a particularly high risk location (such as at school gates) should be inspected more invasively than one in an isolated location? It would not appear so. Mr Justice Coulson's found that Mrs Hind did not have to obtain an expert's opinion upon the state of the Ash tree at the bottom of her garden just because it bordered a railway. Nevertheless it is clearly good practice however to conduct inspections in high risk areas on a more regular basis, particularly in where such trees are susceptible to disease, drought, or storm.
The decision of Mr Justice Coulson has helped calm some hysteria that had arisen as a consequence of some of the preceding cases. However, none of this changes the established principle that in the event a tree has have obviously dangerous features, an occupier of land should commission an expert to look at it in more detail, and if necessary take steps to mitigate any risks posed by that tree.