Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of the Arboricultural Association.

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Witley Parish Council v Cavanagh Judgement and Implications

Author:  NTSG
Last Updated:  21/01/2019

NTSG comment on Court of Appeal decision in Witley Parish Council v Cavanagh EWCA Civ 2232, the recent case discussing a landowner’s liability for injuries caused by a falling tree which was alleged not to have been inspected properly.

The case concerned a large, mature lime tree, leaning over a road, which fell following a storm, causing serious injury to the driver of a bus passing by. It subsequently emerged that the tree had some structural decay, which it was alleged could have been discovered if the tree had been inspected more frequently (it had been inspected on a three-yearly cycle, which was agreed by the experts to be normally adequate for roadside trees). Further details of the complex facts of the case, including those relating to the relevant inspection regimes and the different expert opinions offered, are set out in the judgment which can be downloaded here and as a pdf here, but in essence the defendant council was found to be liable because it had not inspected the tree on a two-yearly cycle.

This case has given rise to concerns that landowners with responsibility for trees may have to undertake more extensive inspections, which may be onerous and in turn lead to pre-emptive felling of trees and deter new plantings. However, it is the view of the NTSG that the case is not a radical departure from standard industry guidance and practice, including that published by the NTSG. It is a case on its own facts. It does, however, highlight that zoning is material in safeguarding against risk to the public, and that some trees in locations with high levels of use (generally to be determined by landowner or agent) may warrant more frequent and thorough inspection than trees in other locations. Decisions will be informed by factors such as tree species, life-stage, condition and size. Whether inspections are two-yearly, or even more frequent, will depend on individual circumstances; equally, three-yearly, or less frequent, inspections may be appropriate in other circumstances. We intend to explore and make comment in our forthcoming revision of the NTSG guidance on certain of the remarks made by court relating to how risk from trees is assessed in the context of the likelihood of harm occurring.

We refer you to the NTSG guidance published on this website for more information about approaches to zoning and other tree risk assessment techniques.

The information in this website is for general guidance on the rights and responsibilities of those responsible for trees, and is not, and should not be construed as, legal advice. If you need specific advice in relation to any action to take or not to take in relation to matters of tree safety, please contact an arboricultural or a legal adviser.

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Time to re-examine inspection regimes

What do Eleanor, Fionn, David, Georgina and Hector have in common? They were all names of storms in the UK since the beginning of this year and were no doubt the cause of much damage, both to person and property. In the Court of Appeal judgment now handed down in Witley Parish Council v Cavanagh [2018] EWCA Civ 2232 the court has considered the issue of liability for damage when a tree falls in stormy winds. It is a judgment that will resonate for councils and landowners as to the approach of the court when considering the adequacy of an adopted tree inspection regime.

The facts

The claimant was seriously injured when a large mature lime tree fell across the road onto the single-decker bus he was driving. The tree falling also caused extensive damage to the upper part of a house on the opposite side of the road which was only saved from more severe damage by the claimant’s bus.

The tree was on land owned by Witley Parish Council (‘Witley’) which accepted that it owed a duty of care to act as a reasonable and prudent landowner including acting to avoid apparent danger and with a duty to undertake regular inspections. Witley operated a system of inspecting the trees on its land every three years and considered that to be reasonable. In his claim against Witley the claimant alleged that there should have been more frequent inspections.

By the time of the trial all parties were in agreement that the tree had fallen due to extensive decay in the root system extending into the base of the trunk, with high winds being a contributory factor or trigger.

The first instance decision

Adopting the approach that such a tree in an extremely high risk position should have been inspected more frequently than every three years, especially having regard to the Forestry Commission Practice Guide (2000) (‘the FC Guide’), the judge found that there needed to be a nuanced approach taking account of the type, age and size of trees together with their location.

Whilst the claimant was unsuccessful in his claim against Mr Shepherd (the second defendant – a tree surgeon instructed by Witley to inspect and report on the tree) on the basis that his negligence had not caused the accident there was judgment in his favour as to the claim against Witley whose policy of inspection of the lime tree was inadequate.

The judge concluded this lime tree should have been inspected at least every two years and ideally every 18 months when trees were in and out of leaf. Witley appealed.

The appeal decision

Rejecting the appeal, the Court of Appeal took the opportunity to reiterate the relevant legal principles as to a landowner’s duty in respect of trees. By reference to the judgment in Stagecoach South Western Trains v Hind [2014] they are (in summary):

  • to act as a reasonable and prudent landowner;
  • to act where there is a danger apparent to him/her (although that should not amount to an unreasonable burden or force the landowner to act as the insurer of nature);
  • to carry out inspections on a regular basis;
  • in certain circumstances (including where there is some form of trigger) to arrange for fuller inspections by an arboriculturist;
  • the resources available to the householder may have relevance as to the way that the duty is discharged.

Given that Witley was refused permission to appeal on the basis that the judge had failed to apply these principles correctly, the appeal was directed only with the judge’s findings of fact and evaluation of the evidence. The focus of the appeal was accordingly the way in which the judge had approached the arboricultural expert evidence; that was rejected on appeal, LJ Flaux concluding that the findings that had been made were those the judge was entitled to make in considering the evidence before him. Further, criticism of the extent to which the judge relied on the FC Guide (as opposed to HSE SIM guidance) was rejected. Indeed, the appeal court added to the reliance on that as evidence, making particular reference to the FC Guide so far as it relates the zoning of trees in certain locations as needing more frequent inspections including the strip along the public road. Similarly argument that the leaning of the tree was not a relevant factor was dismissed; this was seen as a matter where the judge was able to exercise his own common sense.

This article excerpt was authored by partner Simon Jones and Associate Susan Rands from insurance risk and commercial law firm, BLM (www.blmlaw.com) and is reproduced here with their kind permission. Read the full article at www.blmlaw.com/news/timeto-re-examine-tree-inspection-regimes.