Landowners should be fully aware that they have two key responsibilities which makes maintaining their land essential.
- If something “escapes” from their land and causes damage or injury to another, they can be liable to pay compensation and/or do what is required to prevent the escape continuing.
- Ensure that the land is safe for people who come onto the land and that responsibility can include trespassers. Injury or harm caused to the individual can result in a successful claim against the landowner. Generally a landowner will look to protect their position by taking out and maintaining suitable insurance. But having insurance does not give you carte blanche to disregard sensible inspection and maintenance of your land.
Given the recent snow and high winds, responsibilities for trees is a topical issue; particularly those in high risk areas such as next to roads. The case below shows that a landowner’s responsibility includes regular checks and inspections of an expert nature – mere cursory visual inspections as you walk your land will be unlikely to meet those responsibilities.
In Witley Parish Council –v- Cavanagh the story started in January 2012 when Mr Cavanagh, whilst driving a bus, was trapped in the cab when an 80 foot tree fell onto his bus in high winds. Mr Cavanagh was in intensive care for 13 days and left with a brain injury, numerous fractures and ultimately lost the use of his right hand.
The case was heard in the High Court in February 2017 and the Court held that as the tree was close to a bus stop and leaning over the road, the responsibility of the Council as landowner was to regard the tree as “high risk”. The Council had reduced its inspection checks to every three years due to a large extent to budget cuts. The Reports received from the tree surgeon engaged by the Council were clear that the assessment was valid for two years. The tree visually looked healthy but a fungal disease had penetrated its roots and they were in a state of severe and extensive decay.
The Court regarded the 3 year period to carry out checks as inadequate when considering the high risk nature of the tree. The last time the tree had been subject to a check had been 2009, so the tree actually fell just short of the expiry of the three year period.
The Council appealed and the critical issue for the Court of Appeal who heard the case in November 2018 was whether the three year inspection period was reasonable. The Court of Appeal was unanimous in approving the High Court decision. The Council should have inspected a large mature tree in a high risk position at an 18-24 month interval and adopting a blanket 3 year inspection period was inadequate. Had it been inspected by the tree surgeon at the two year interval the decay would have been identified and appropriate action to remove the tree would have been taken.
Landowners need to have a reasonable system in place for inspecting trees, but this has to be more nuanced than an inspection policy that applies equally to all trees. Landowners should recognise that some trees will be in places that are higher risk (and by the side of a road is an obvious one) and develop an inspection regime that acknowledges the fact that a different time frame should be applied based on the level of risk applicable to where the trees are positioned.
One further point to bear in mind is the quality of the instructions given to your tree surgeon – make sure you are clear what sort of inspections you require.
A secondary point that was dealt with in the 2017 Hearing was whether the 2009 inspection of the tree had been properly conducted. The tree surgeon denied having carried out any inspection (the Council was arguing that if it was liable to Mr Cavanagh; it in turn had a negligence claim against its independent contractor tree surgeon) and although the Court found that the tree surgeon had lied about that to the Court, nonetheless the Court also concluded that in 2009 the true extent of the damage to the tree would not have been evident.
If you want any help with this please contact us on drteam@herrington-carmichael.com
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
