QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| Stagecoach South Western Trains Ltd
|- and -
|(1) Ms Kathleen Hind
- and -
(2) Mr Andrew Steel
Mr Richard Stead (instructed by Lyons Davidson) for the First Defendant
Mr Jason Evans-Tovey (instructed by BLM) for the Second Defendant
Hearing dates: 12, 13, 14 and 15 May 2014
Crown Copyright ©
The Hon. Mr Justice Coulson:
"He did the work I asked him to do. I was always very satisfied with the work that he did…I walked round the garden with Mr Steel discussing the works that I thought needed doing. And he then did the work we agreed."
She said that they had talked about the trees, in relation to their width, shaping and so on. As to the Tree itself, she said that she had asked Mr Steel to clear out the crown and remove the deadwood – principally twigs – in order to allow more light in.
"We discussed what she wanted to carry out. I gave some opinions on how to do it."
It was put to Mr Steel that he gave advice. He denied that, saying that he made recommendations. He gave his opinions on the specific matters raised with him, such as what the effect would be if a particular item of work was done. He said that his opinions were limited to (for example) recommending, where Ms Hind said she wanted a tree or shrub reduced by 50%, that it should only be reduced by 25%. He said that he might have pointed out to her any obvious signs of weakness or defects and indicated that they 'needed to talk about that'. Mr Steel would give Ms Hind different options but then leave the final decision to her. He was also very clear that he would not go onto the eastern stem of the Tree at all, because it overhung the railway and he did not want to work over the live rails. It was agreed that he would work on the western stem only.
3. THE STATE OF THE TREE IN DECEMBER 2009
"…it does show that the crown has good colour and density, with no obvious evidence of dieback or decline from this direction, and compared with other trees within the vicinity. From the photograph there is no evidence to suggest that the tree crown showed any significant signs of physiological ill-health or decline."
This was consistent with Ms Hind's evidence. She referred to the fact that there were no dead or falling branches and that each spring the Tree produced a large amount of healthy leaves. In her oral evidence she said that her visual inspections of the Tree showed that it was healthy because of the leaf cover and the state of the crown. She described it as "a healthy, strong, majestic tree".
(a) Mr Sheppard's inspection of the rings of the Tree after the collision: he said that his inspection demonstrated "steady growth over the last decade indicating sustained vitality"; and
(b) Paragraph 7 of the experts' Joint Statement (noted in detail at paragraphs 49-51 below) which confirmed that, prior to the collision, the Tree would have appeared healthy with no 'visual indication of the deteriorating structural condition of the trunk'.
I therefore find that the Tree looked healthy and strong at all times prior to the collapse.
"10. From the photographs taken at the time of the failure and from the remains present in the garden, the trunk from about one metre above the ground and the middle crown of the tree had an extensive covering of ivy at the time of the failure.
11. This ivy covering is likely to have obscured any trunk defects from the view of a climber in the tree.
12. The more limited ivy covering on the lower trunk and any dense ground vegetation directly adjacent to the trunk would have obscured obvious defects when viewed from a distance when standing at ground level." (Emphasis supplied).
"The trunk supported large stems of common ivy, these had to be cut at two metres, but were in a healthy condition. These were growing from the base of the trunk…"
It was only in his oral evidence that Mr Sheppard attempted to argue that there was no or little ivy in the area, a stance that, as I have said, was contrary to paragraph 12 of the expert's Joint Statement. Moreover, in his cross-examination, he made a number of important concessions concerning the likelihood of ivy growing across and around the wound prior to the collapse.
4. THE EXPERT EVIDENCE
"At the other end of the scale, if it is accepted that homeowners can check their own trees, then the standard of that inspection could only reasonably extend to identifying obvious problems, and the extent of reasonable visual observations would vary depending on the individual circumstances of the tree."
Mr Pryce is recorded as concluding that:
"…such criteria would include signs visible from beyond the vegetation surrounding the tree that there might be defects in the lower trunk or roots that would warrant close inspection. Examples would be sparse or dying foliage or the presence of more deadwood than might be expected in a healthy tree."
Informal observations of trees contribute to wider management and tree safety. They are essentially those day-to-day observations of trees made by owners and employees of a site who have good local knowledge of the trees and location and see them during the course of their daily lives and work. While not going out of their way to make an assessment of the condition of the tree, they are nonetheless aware of it and any changes that may occur over time. In some circumstances, informal observation may be considered reasonable and appropriate when owners and staff are able to assess the trees' health and any structural weaknesses that may pose an imminent threat to public safety.
May be undertaken by:
People with good local knowledge and familiarity with local trees who are not tree specialists, but rather those closely associated with a property, such as the owner, gardener, other employee or agent, who understands the way the property is used (areas most and least frequented) and the extent of the danger, should a tree be found that is clearly falling apart or uprooting. Reports of problems by staff or members of the public are a fundamental part of informal observations and should be acted upon.
Frequency of inspection:
Informal observations contribute significantly to public safety, being important for deciding when action is needed and when more formal assessment is appropriate. They are generally on-going and undertaken as a given part of daily life on a site with trees and public access."
Mr Sheppard agreed that this was a "perfectly legitimate form of inspection".
"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."
5. THE LAW RELATING TO A LANDOWNER'S LIABILITY FOR HIS/HER TREES
"I see no ground for holding that the owner is to become an insurer of nature, or that default is to be imputed to him until it appears, or would appear upon proper inspection, that nature can no longer be relied upon…"
In similar vein, in Brown v Harrison  177 LT 281, Somervell LJ reiterated the relevant test (formulated by the judge at first instance) in these terms:
"…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."
"…The Court of Appeal applied what is, I think, the proper test - the conduct to be expected from a reasonable and prudent land-owner - and held on the evidence that the appellants had satisfied this test because there was nothing dangerous in the appearance of the tree, no sign of disease, advanced age, disproportion of crown to stem, or rising roots…
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."
"I think that the respondents' duty was not limited to dealing with any danger of which they might happen to be aware; and if a person has any further duty than that with regard to trees his first step must be to look at those trees which are near the highway or to get someone else to do so on his behalf to see whether any of them is dangerous…I think that it was their duty to have this tree inspected within a reasonable time, and it was not suggested that they did not have before the accident ample time to do this and to consider the results of an inspection and take any necessary action."
He addressed the degree of knowledge and experience necessary for adequate inspection. He said:
"So in my judgment the appellants can only succeed in this appeal if they can show that there was something about this particular tree which should have suggested that lopping or other action was necessary. What inspection will suggest will depend on the knowledge and experience of the inspector, and there has been some controversy about the degree of knowledge and experience necessary for adequate inspection. Plainly it would be no use to send a person who knew nothing about trees. The alternatives put forward were that he should be an expert or that he should have at least such knowledge and experience of trees as a landowner with trees on his land would generally have. As the question depends on what a reasonable man would do I think that it may be put in this way. Would a reasonable and careful owner, without expert knowledge but accustomed to dealing with his trees and having a countryman's general knowledge about them, think it necessary to call in an expert to advise him or would he think it sufficient to act at least in the first instance on his own knowledge and judgment?"
"…notorious or generally recognised by persons concerned with the cure of them and which have a bearing on the danger which they may cause when they are growing on or near ground which the public has lawful access. They are less resistant to wind than the other common British trees; the limbs and branches are more likely to fall; they are more prone to disease; their lateral roots are shallow and their tap root decays with age, so that the trees themselves are also more likely to fall…if a landlord is aware of his ignorance about Elms he should obtain the advice of someone better instructed, not a scientific expert in the ordinary case, but another landlord with greater experience, or a practical forester, for example."
"The duty of the Trust is to take such care as a reasonable landowner — and that means a prudent landowner — would take to prevent unnecessary danger to users of the highway adjoining the Trust's land. There is not to be imputed in the ordinary landowner the knowledge possessed by the skilled expert in forestry…But, in my opinion, there may be circumstances in which it is incumbent on a landowner to call in somebody skilled in forestry to advise him, and I have no doubt but that a landowner on whose land this belt of trees stood, adjoining a busy highway, was under a duty to provide himself with skilled advice about the safety of the trees…"
(a) In Corker v Wilson (10th November 2006; Mayor's and City of London Court; HHJ Simpson QC), the defendant was an ordinary landowner who owned a tree by a road. A heavy branch fell onto a passing car. There was a crack at the junction of the stem of the branch, and the claimant's case was that this should have been identified and the branch should have been lopped. The defendant said that the crack could not have been seen on a roadside inspection or even on a more detailed inspection and that the tree was in visibly good health. The judge rejected the claim, saying that the defendant carried out informal observations of the tree on an ongoing basis and that all the evidence was that the tree was in good health. There was nothing about the tree which should have alerted the defendant or led him to obtain a more detailed inspection by an arboriculturalist.
(b) Selwyn-Smith v Gompels (22 December 2009; Swindon County Court; Recorder Adrian Palmer QC) also concerned an ordinary landholder, whose tree fell onto a neighbouring garage. Again the claim was rejected, the learned recorder finding that the law did not require the landowner to engage an expert "unless and until reasonable inspection by the standards of that knowledge discloses or should disclose that the tree might be unsafe".
(a) The owner of a tree owes a duty to act as a reasonable and prudent landowner (Caminer);
(b) Such a duty must not amount to an unreasonable burden (Lambourn) or force the landowner to act as the insurer of nature (Noble). 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 (Brown);
(c) A reasonable and prudent landowner should carry out preliminary/informal inspections or observations on a regular basis (Micklewright and the first instance cases noted in paragraph 66 above);
(d) In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists (Caminer, Quinn). This will usually be because preliminary/informal inspections or observations have revealed a potential problem (Micklewright, Charlesworth and Percy), 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 (Caminer). A general approach that requires a close/formal inspection only if there is some form of 'trigger' is also in accordance with the published guidance referred to in paragraphs 53-55 above.
(e) The resources available to the householder may have a relevance (Leakey) to the way in which the duty is discharged.
6. THE LIABILITY OF Ms HIND
(i) Issue 1: Is an ordinary landowner obliged as a matter of course to instruct an expert arboriculturalist to carry out regular inspections of the trees on his or her land?
(ii) Issue 2: If not, is the landowner obliged to carry out preliminary/informal inspections?
(iii) Issue 3: Did Ms Hind have sufficient knowledge and experience to carry out proper preliminary/informal inspections?
(iv) Issue 4: Did she carry out proper preliminary/informal inspections?
7. THE CASE AGAINST MR STEEL
7.3 Mr Steel's Obligations
Note 1 This seems to be a recurring problem in these cases: see for example the comments of Recorder Adrian Palmer QC at paragraph 34 of his judgment inSelwyn-Smith v Gompels, referred to below. [Back] Note 2 This is not the approach adopted in Mynor’s Law of Trees, Forests and Hedges 2nd edition, at paragraph 8.5.2, which does not address Micklewright and asserts that the reasoning in Selwyn-Smith is ‘incorrect’ . To the extent there is a conflict in the textbooks. I unhesitatingly prefer the summary in Charlesworth and Percy on Negligence because, as I have shown, it is in line with the authorities. [Back]
Note 1 This seems to be a recurring problem in these cases: see for example the comments of Recorder Adrian Palmer QC at paragraph 34 of his judgment inSelwyn-Smith v Gompels, referred to below. [Back]
Note 2 This is not the approach adopted in Mynor’s Law of Trees, Forests and Hedges 2nd edition, at paragraph 8.5.2, which does not address Micklewright and asserts that the reasoning in Selwyn-Smith is ‘incorrect’ . To the extent there is a conflict in the textbooks. I unhesitatingly prefer the summary in Charlesworth and Percy on Negligence because, as I have shown, it is in line with the authorities. [Back]