ON APPEAL FROM THE GUILDFORD COUNTY COURT
His Honour Judge Robert Reid Q.C.
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
MR. JUSTICE HEDLEY
| Joanne Micklewright
(on her own behalf and as executrix of the estate of CHRISTOPHER JOHN IMISON Deceased)
|- and -
|Surrey County Council
Mr. A. Piper (instructed by Veitch Penny LLP) for the Respondent
Hearing dates : 14th June 2011
Crown Copyright ©
Mr Justice Hedley:
"It does not follow that because an owner or occupier fails in his duty to make the necessary inspections of his trees that he will automatically be liable if someone is injured by one of them. It may be the tree was suffering from a defect that would not be revealed by inspection. Thus in Caminer v Northern & London IT  AC 88 at 103 Lord Normand observed that the defendants did not comply with their duty but "it is no less plain that, if they had, it would have made no difference. The tree was just such a tree as [the expert witness] says the owner might consider safe." It is necessary for the claimant to show that if the owner or occupier had complied with his duty on the balance of probability the defect or danger in the tree would have been noticed. It is important when considering whether the owner or occupier has complied with his duty to avoid using the benefit of hindsight."
That was, and is accepted by the parties to be, an impeccable direction. Then the learned judge went on to consider the difficulties that had been raised by the disposal of relevant evidence. In that regard he said this -
"This failure to conduct an immediate and thorough investigation into the cause of the branch's failure made, it was said, the case analogous to Keefe v Isle of Man Steam Packet Co  EWCA Civ 683 in which Longmore LJ at para 19 in the context of a Defendant's failure to make or keep proper records said that: "…the Court should judge the Claimant's evidence benevolently and the Defendant's critically."
20. In my judgment that is a correct approach. The Claimant has been put at a substantial disadvantage in advancing her claim by the manner in which the Defendant dealt with the remnants of the branch once it had fallen. In those circumstances I take the view that the proper way to approach the evidence is that suggested by Longmore LJ. This does not however reverse the burden of proof or relieve the Claimant of the need to prove her claim on the balance of probabilities."
As appeared in the argument, a key issue on this appeal is whether the judge, having thus correctly directed himself, in fact applied that direction to his evaluation of the evidence as he should have done.
"This passage has been cited and approved many times but some of its implications need to be explained. First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc. v. Medeva Plc.  RPC 1, 45:
"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account… An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
"In my judgment it is of little importance whether the failure of the branch was caused by the decay alone or summer branch drop or some combination of the two factors. On any view the extensive internal decay was at least a major factor in the branch's failure. The substantial question is whether an inspection of the type the experts agreed was required would have revealed the internal decay. This involves two stages of inquiry: first whether the routine inspection which the experts agreed was what was appropriate in the first instance would have led to a request for an inspection by a qualified arboriculturalist, and, if so, whether the qualified arboriculturalist's inspections would have led to the removal of the branch so preventing the accident."
I would accept that finding as one he was entitled to make and would agree with his formulation of the key questions. Indeed I would accept further his view expressed at paragraph 60 that "there was indeed irrefutable evidence of significant internal decay."
"The experts both expressed the view that there are "usually obvious signs when failure through decay alone becomes imminent" (per Mr. Barrel) and "There is also a strong likelihood that the branch which failed would have had significantly discoloured leaves during the summer months prior to its failure" (per Mr. Cocking)."
However, he makes no specific finding on that.
Lord Justice Patten:
Lord Justice Mummery:
I also agree