His Honour Judge Reid QC yesterday handed down judgment in the case of Joanne Micklewright (as Executrix of the estate of Christopher John Imison, Deceased) v Surrey County Council in the Guildford County Court.
The Claimant was the executrix of the Deceased, who had tragically been killed when struck by a large branch which fell onto him from an oak tree on the verge of Wick Road, Virginia Water, as he unloaded a bicycle from his car parked in an adjacent lay-by. The Defendant accepted that it was responsible for the tree in question for the purposes of the trial. The main issue at trial concerned the condition of the tree prior to the failure of the branch (which failure occurred on a still, dry, sunny August day in 2007). Damages were agreed at £500,000, subject to liability.
In his judgment HHJ Reid QC reiterated that the duty on the Defendant was to take such care as was reasonable in all the circumstances of the case, but that there is no obligation on an occupier or landowner to make his land completely safe. As regards trees on land, there must be some assessment of the potential risks presented by those trees, which requires inspection at appropriate intervals by a person with some training. The judge confirmed that there is no remedy in nuisance in such circumstances. See Noble v Harris  2KB 332.
Further, the judge confirmed that causation is a live issue, so that there will not be automatic liability on a tree owner if he fails to make inspections, as it may be that the tree was suffering from a defect that would not have been revealed in any event. See Caminer v Northern & London IT  AC 88 at 103.
As HHJ Reid QC explained in paragraph 18 of his judgment: “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.”
In paragraph 21 the judge held that the applicable duty of inspection is a duty to perform “a quick visual check, carried out by a person with a working knowledge of trees as defined by the HSE”. The question for the court was as to whether such a check would have revealed the defect in this particular oak tree prior to the accident, leading to the removal of the offending branch.
HHJ Reid QC found that the Defendant’s inspection regime at the time of the accident was inadequate, albeit steps had been taken since 2004 to put in place an effective inspection scheme, but there remained a backlog as regards inspections at the time of the accident, which needed to be cleared in order to meet the annual or bi-annual inspection regime that was suggested as appropriate for a tree at this location by the experts.
Accordingly, the “central point in the case” was whether or not the accident would have been avoided had an adequate inspection system been in place at the time of the accident. On that issue, the judge effectively preferred the Defendant’s evidence. The experts disagreed as to whether the cause of the branch failure was internal decay or a phenomenon known as “summer branch drop”, whereby trees sometimes shed branches on warm, dry summer days.
The judge held that it was of little importance what caused the branch to fall, as on any view the internal decay was certainly a factor in its failure. The judge held that the pruning wounds visible on the 200 year old oak tree were not defects that required any additional inspection. He similarly preferred the Defendant’s expert as regards a small area of discoloured bark on the tree, and with regard to the various further “defects” below.
There was visible decay within the cut section of the branch that had fallen from the tree, and the judge held that there was “irrefutable evidence of significant internal decay. However this does not assist in resolving the question whether there were indicia from which on an appropriate inspection the internal decay and the danger to the integrity of the branch should have become apparent.” When considering the discoloured bark and cracking within the fallen tree branch that could be seen in some photographs the judge held that “On this state of the evidence I am not satisfied that the Claimant has established that there would have been an external crack visible on an appropriate inspection…I am prepared to assume in the Claimant’s favour that the discolouration was such that it could have been seen from the ground on inspection. However this is of little assistance to the Claimant since [the Claimant’s expert’s] evidence was that discolouration of the bark would not of itself prompt a detailed inspection by a trained arboriculturalist”.
As regards the Claimant’s expert’s contention that there would have been discoloured foliage to be seen on the tree prior to the accident, the judge accepted the evidence of the Defendant and held that “In my judgment the Claimant has failed to show on the balance of probabilities that there were discoloured leaves on the failed branch”. HHJ Reid QC additionally held that the evidence did not support the contention of the Claimant’s counsel to the effect that the presence of extensive ivy on the tree should have resulted in an expert inspection, whether taken alone or in conjunction with other factors.
The conclusion of the court was that “…the Claimant has failed to discharge the burden of proof on her. The balance of probabilities is that [the Defendant’s expert] was correct in his view expressed to the Coroner that this was an unforeseeable accident. Even if there had been a proper system of inspection in place, the defect in the branch would not have been revealed so as to enable the accident to be avoided. Whilst I have every sympathy for the Claimant in this tragic case, as the law stands and with there being no absolute liability for damage caused by highway trees, the result is that her action must fail.”
So the claim was dismissed, notwithstanding the finding of a breach of duty. The lesson here is that causation can be a powerful tool in such cases, and that the court can and will understand the dangers of judging matters with the benefit of hindsight.
Permission to appeal has been granted.
Veitch Penny and Angus Piper acted for the Defendant