Cavanagh v Witley Parish Council & Kevin Shepherd Tree Surgeons QBD _ 14 February 2017
In January 2012, a bus driven by the Claimant was hit by a tree which fell from Witley Parish Council’s (D1) land. The Claimant suffered severe injuries but the matter was listed for a split trial and this decision relates to liability.
D1 accepted that the tree was on their land and that they owed a duty of care to act as a reasonable and prudent landowner, including a duty to avoid apparent danger and a duty to carry out inspections. D1 operated a system of 3 yearly inspections, the tree having been inspected in 2006 and 2009 by Kevin Shepherd Tree Surgeon (D2). It was also common ground between the parties that the cause of the tree falling was extensively decayed roots, with high winds being a contributing factor.
Both D1 and D2 defended the claims to trial. The Claimant alleged that the decay in the tree would have been discoverable upon inspection by a competent arboriculturist at any time in the 4-5 years before it fell. The Claimant said that D1 was negligent in having employed D2 who did not have the appropriate experience or qualifications, and neither did they ensure that they had adequate liability insurance. They also claimed that D1’s system of 3 yearly inspections was inadequate and the tree should have been inspected at 18-24 month intervals.
D1 denied these allegations, defending its system of inspection and defending D2’s competence. They had acted reasonably in relying upon D2’s reports which had shown no issues with the tree. D1 also disputed that the defect would have been visible in 2009 and relied upon expert evidence to support that position. D1’s expert was the only 1 of the three to actually examine the remains of the tree and he was therefore able to more accurately predict its growth rate prior to falling.
D2 also denied the allegations against him saying that he had not in fact inspected the tree in 2009 because he had said to D1 that he needed maps and plans showing the trees to be inspected, and he had not received these from D1 despite requests. D2 said that he told D1 he had not inspected this tree by marking on the inspection report “no works”. D1 had interpreted this to mean that it had been inspected but did not require any remedial works.
Expert arboriculturists were called by each party. The experts for the Claimant and D1 were largely in agreement, that this tree was in a high risk location and there were a number of guidance documents which assisted to determine the nature of the duties, including a Forestry Commission guide. However the expert relied upon by D2 gave inconsistent evidence and the Judge was not impressed with how he presented. Neither was the Judge persuaded by D2’s own evidence, or that of his wife, as to the facts relating to the tree inspections. He disbelieved D2’s assertions that he had requested maps from D1 saying that these assertions were a “complete work of fiction” and he rejected D2’s evidence that he had not inspected the tree, as he had initially told his solicitors that he had inspected it and only changed his mind later when he realised he didn’t have insurance cover and “panicked”.
The Judge held that:
- D2 had inspected the tree
- D2 had not detected the decay, but he accepted D1’s expert evidence about the date the decay would have been visible, concluding that it would not have been visible until later than 2009 in any event
- the negligence of D2 was not therefore causative
- the tree was in a high risk possible, being beside a road, and following the Forestry Commission Guidance the tree should have been inspected more frequently than every 3 years, at least every 2 years
- a 2 yearly inspection would have discovered the decaying roots before the accident
Judgment was given for the Claimant against D1 and the claim against D2 was dismissed.