The Extent of Duty of Care in Tree Maintenance
06/16/2021
Trees are of vital benefit to our mental health and wellbeing, and of great importance for wildlife and the environment. Unfortunately, the risk that a branch or tree will fall cannot be completely eliminated and very occasionally this will lead to serious or even fatal injuries. The risk of being killed by a falling tree is incredibly low at one in 10 million with only around 55 injuries per year of sufficient severity to warrant hospital attendance.
In this case the Court considered the extent of the landowner’s duty of care to mitigate the risk of falling trees and branches, with the outcome that the Claimant’s case against Zurich’s insured was dismissed.
Duty of Care
Landowners are under a duty to “take such care as in all the circumstances of the case is reasonable” to see that visitors to their land are “reasonably safe” as set out in the Occupiers’ Liability Act 1957. When it comes to trees, this duty must be satisfied by an appropriate system of safety management through inspection. This system must be “risk-based”, giving due consideration to the hazard itself and the likelihood of that hazard causing injury or damage. So, a tree overhanging a busy footpath will present an entirely different level of risk to one growing in secluded woodland.
Facts of the Case
In August 2016 the claimant was visiting Lyme Park, a mansion house and estate in Cheshire managed by Zurich’s insured, the National Trust. She was sitting beneath a horse chestnut tree close to a wooded area of the estate when a large branch fell from the tree, striking the claimant and causing catastrophic injuries. The tree was affected by Horse Chestnut Bleeding Canker (HCBC), a common disease affecting horse chestnut trees which leads to decay and which resulted in the falling branch.
Zurich were notified the day after the incident and had an expert attend the site at Lyme Park just 48 hours after the incident occurred. Zurich’s claims team provided support to the insured and assisted with enquiries conducted by the local EHO (Environmental Health Officer) who investigated due to the severity of the incident. A claim was brought, and Zurich’s Large Loss Personal Injury handler arranged a full investigation and instructed BLM to defend the claim.
Over the course of the investigation and the defence of the claim the Zurich team spent extensive time supporting the insured in conferences with Counsel. Due to the complexity of the issues involved and the significance of the case for the insured, it was necessary to hold several conferences with the key witnesses and the expert to ensure the case was prepared for trial.
The case came before His Honour Judge Bird, sitting as a High Court Judge at Manchester District Registry with Judgment handed down on 10 June 2021.
The National Trust’s tree inspector had last inspected the tree 20 months before the accident, identifying no necessary action. It was agreed between the claimant’s and defendant’s experts that any external signs of decay on the branch at the time would have been on the top side and not visible from the ground. The issue was whether the signs of HCBC, in combination with other “defects” within the tree, were such that a competent tree inspector would have determined remedial action was necessary and which would have led to removal of the branch prior to it falling.
The Claimant’s Case
The National Trust had in place a formal system of tree safety management at the site which was based on their National Tree Safety Management policy. Frequency and type of inspections depended on the location of the tree and the risk posed, with trees located in areas of higher footfall subject to more frequent inspections than those in areas of lower footfall.
The applicable inspection regime for the tree in question was once every three years, which the experts agreed was reasonable. As was the nature of the inspection which was a walk-by from ground level looking for obvious defects. It was not the frequency or nature of inspections which the claimant sought to challenge but the level of care and attention with which this particular inspection was carried out.
The claimant’s case was that the defects within the tree were ‘obvious defects’ such that a reasonably competent tree inspector would have identified them and required work to be done; or the inspector would have undertaken further investigation by way of an aerial inspection, which would have led to remedial work.
The standard of care expected of a tree inspector is that of the ordinarily skilled tree inspector – the ‘Bolam’ test – in accordance with Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. A tree inspector will not be considered negligent if the inspection is conducted in accordance with the practice and this is accepted as proper by a responsible body of arborist opinion.
Expert evidence
Zurich arranged for an arboriculturalist to act as expert witness to the Court. This expert and the expert instructed for the claimant broadly agreed that it was likely that, at the time of the inspection in December 2014, any HCBC symptoms present would have been subtle. The disagreement was whether the significance of the large cavities and long branches present on the tree, which were long-standing and not related to HCBC, constituted “obvious defects” which should have given rise to further action. To meet this threshold a defect would be one that posed a serious and present risk, particularly where the damage is immediate.
The claimant’s expert’s view was that a ground-based inspection was not enough for a reasonably competent tree inspector to be able to form an opinion, and that an aerial inspection should have been carried out. The expert was also of the view that the tree’s location did not remove the need for these hazards to be remedied.
The Defendant’s expert considered any signs of HCBC present in December 2014 were not an ‘obvious defect’ and even if seen would have been considered low risk in light of the location of the tree. He considered the cavities and long branches were not structurally significant and he would again have recommended no action in December 2014. He was clear that an aerial inspection was not warranted.
Court Decision
The Trial Judge preferred the evidence of the Defendant’s expert in finding that a reasonably competent tree inspector, conducting an appropriate inspection of the tree in December 2014, would not have identified any obvious defect or been required to carry out further investigation, by way of an aerial inspection.
The Trial Judge found that to come to any other conclusion would impose a standard of care on the Defendant’s tree inspector over and above that which is accepted as appropriate by arborists. The standard of care put forward by the claimant’s expert was inappropriately high and out of step with modern tree safety thinking, which preferred a risk-based approach, as was operated by the Defendant. To do otherwise would be to render the system of tree safety management unworkable, both in terms of being too time consuming and too expensive.
Quite simply, the condition of this tree in December 2014 did not warrant any further investigation or action. As such, the Defendant had properly discharged its duty to take reasonable steps to ensure the Claimant was safe when visiting the park and so the claim would be dismissed.
Commenting on the outcome, Zurich’s Head of Large Loss Injury Tracey Pike said: “We welcome this decision, which supports a responsible and risk-based approach to tree management, rather than an inappropriately high burden for landowners. For landowners to be dissuaded from allowing the public to access woodland and green spaces due to the high costs to them of doing so would be counter-intuitive.”
