The frequency and severity of recent storms has left images of trees fallen on cars, houses, roads and railway lines, in our minds.
With storms seeming to occur more frequently, it is worth a revisit of the law relating to the claims that can arise from trees failing during these dramatic events.
Branches falling and the tree eventually falling are part of the natural characteristics of a tree as a living entity. However, where there is a failure, and that causes damage to people or property, there is a possible legal claim against the tree owner.
Where storm events are getting more frequent, are these legal claims going to increase in number too?
Starting point is to go back to basics in relation to the legal tests in these cases. In civil law these claims are likely to be brought in negligence, nuisance and under the Occupiers Liability Act.
Even before we get to the negligence case of Donoghue v Stevenson there was the case of Noble v Harrison in 1926. In that case there were injuries from a falling branch, with the branch falling as a result of a hidden defect. The court found the tree owner not liable setting out that the landowner is
“not expected to act as the insurer of nature”.
This is an expression which continues to be referred to in today’s Court Judgments.
For the purpose of all claims, the legal duty is similar. It goes all the way back to the founding negligence principles in the 1932 case of Donoghue v Stevenson where the Court found that the duty of care in negligence is to take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Moving away from the snail in the ginger beer case and into the tree law cases, this was referred to by the House of Lords in the case of Caminer v Northern & London Investment Trust (1951). In that case the Claimant sustained injuries from a fallen branch. The question asked of the Court was whether the Defendant was negligent as the tree in question had not been inspected. This went all the way to the House of Lords who held that the Defendant was not liable as the defect that led to the failure was hidden from view and would not have been picked up on an inspection. The Court reiterated the DvS duty of care and held that the tree owner had adhered to the standard of conduct to be expected from a reasonable and prudent landowner and was not found liable.
In 1980 the case of Leakey v National Trust (landslip case) introduced into the law the notion of the ‘measured duty of care’. In that case soil had slipped from the Defendant’s land to the Claimant’s land. The Court set out that there is a general duty on occupiers in relation to hazards occurring on their land, whether natural or manmade. The duty is to do that which is reasonable in all the circumstance and no more than what, if anything, is reasonable to prevent or minimise the known risk of damage or injury to ones neighbour or their property.
As a measured duty of care the standard of care under the measured duty takes into account the specific, subjective circumstances of the Defendant.
A few cases applying the measured duty of care show 7 cases in which the Defendant tree owner was held to be not liable and 2 where they are liable.
7 Cases where tree owner not liable
- Mclellan v Forestry Commission (2005) – tree collapsed onto woodland path and the FC found not liable as there was a low level of risk with low level access and the absence of any obvious signs the tree was problematic during the inspections, albeit those were causal.
- Corket v Wilson (2006) branch fell and hit a car. Tree regularly but informally inspected and within 12 months of the incident. Defendant not liable as the branch failed due to a non visible defect.
- Bowen v National Trust (2011) – school children sheltering under a tree and branch fell and killed a child. Court found no breach by the NT as they only had a duty to take reasonable care to provide reasonable safety to visitors. This was a medium risk zone and inspections carried out every 2 years.
- Micklewright v Surrey (2011) – the decay was internal, even if an inspection regime had been in place it would not have revealed the tree’s condition and would have been unlikely to prompt the appointment of an arbo, although it was accepted that an arbo would have diagnosed the condition
- Stagecoach v Hind (2014) – Ash tree from D’s garden fell across a train track. The D was found not liable with the Court setting out the principles in these cases in 4 points:
- The owner of the tree owes a duty to act as a reasonable and prudent landowner
- This means that a landowner has a duty to act where there is a danger which is apparent to them.
- A reasonable and prudent landowner should carry out a preliminary or informal inspection on a regular basis, and this may extend to fuller inspections by a qualified arborist such as where a potential problem is revealed or a particular risk perceived.
- The resources available to the landowner may have a relevant such as where the landowner has a particular knowledge about trees.
- Parker v National Trust (2021) – severe injuries caused by a falling branch in 2016. The inspection predating the failure was in 2014. Question was the 2014 inspection carried out properly. Experts disagree with each other by the court ruled in favour of the NT saying that the inspector followed accepted standards for identifying obvious defects. The NT’s inspection policy aligned with modern Arboricultural practices. The tree’s conditions didn’t justify further investigation or intervention.
- Hoyle v Hampshire CC (2022) – Cherry tree fell onto a car. Allegation of negligent tree inspections. Tree inspected twice within 16 months prior to the incident. The finding was that the tree had no visible signs of decay and its failure was due to a combination of wet ground, asymmetrical growth and high winds. The inspections met professional standards. No competent inspector would have identified the tree as an immediate risk.
The 2 cases where tree owner held liable:
Witley Parish Council v Cavanagh (2018) – tree fell in stormy weather in 2012 onto a bus. Tree inspected every 3 years. Court found the tree was in a high risk area and should have been inspected no less than every 2 years. This would have identified the decay and prevented the accident.
Colar & Singh v Highways England (2019)– tree from a central reservation fell and caused a RTA. In this case there was a 3 year cycle of inspections which was found to be inadequate with reference to the tree and its location in a position of extreme high risk. The Court here reiterated that, even if there is a breach, causation must also be established to show that the failure to inspect sufficiently frequently and completely was the cause of the tree failure.
So the general duty is what should a reasonable and prudent land owner do. The exact situation of that tree owner will be taken into account with the measured duty. The higher risk area the tree is in, the more the Court will expect in terms of professional inspections of high frequency. That’s what happened in the 2 high risk areas where the Court found the tree owner liable.
The biggest balance here has to be alerting tree owners to the risk of owning trees such that they are encouraged to effectively manage them but not scare monger to the extent that an increase in proactive tree felling goes ahead to entirely eliminate risk.
Check out how we can help with storm claims – Fallen Trees | Tree Law – Legal tree expert
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