The High Court decided last week in the case of Bowen and Others v The National Trust (2011) that the Trust was not to blame for the death of a child, killed by a falling branch while sheltering under a tree on the Felbrigg Estate. The Trust had been sued for damages in what was considered to be an important test case for landowners who open up their property to the public.

Brief facts

On 26 June 2007 a group of school children were following a trail in the Great Wood, owned by the National Trust as part of the estate surrounding Felbrigg Hall. It began to rain and some of the children sheltered under the canopy of a beech tree, estimated to be between 160 and 180-years-old. Without warning a large branch weighing between 1½ to 2 tons fractured at the point that it joined the stem and fell onto the children. Eleven-year-old Daniel Mullinger died instantly and three of his class mates were seriously injured.

The tree had been inspected by two people, including the forester at Felbrigg Hall on 2 January 2007 and again on 22 January 2007 after a set of January gales. On both occasions a visual assessment was carried out from ground level. In addition the forester walked past the tree probably once every six weeks although did not undertake any formal assessment on these occasions.

Post accident examination revealed a depression, where the fatal branch joined the stem and a large crack in the join. Neither would have been visible from the ground. However, what were described as “bulges” or “ears” around the area of the join, indicative of a condition known as adaptive growth would have been visible on visual inspection from the ground. These bulges were in fact seen by the tree inspectors but were not considered to be significant.

A claim was brought by the families of the school children against the National Trust. The families alleged that the tree inspectors, for whom the Trust was liable, had failed to exercise reasonable care when carrying out their inspections. The families alleged that the signs of adaptive growth should have alerted the inspectors to the defect in the union of the branch and stem and remedial measures should have been taken.

Court decision

As lawful visitors to the property the Trust owed to the children the common duty of care imposed by the Occupiers Liability Act 1957. This requires the occupier of land “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there”.

The Court emphasised that this duty does not create an obligation to ensure the safety of visitors, merely to take reasonable care to provide reasonable safety.

Accordingly while the Court found that the judgment formed by the tree inspectors, that the “bulges” were not significant, was wrong and disastrous consequences followed, there was no breach of the common duty of care. The tree inspectors had used all the care to be expected of reasonable competent persons doing their job and the Trust had given them adequate training and instruction in how to approach their task.

Analysis and comment

Courts are naturally reluctant to send away innocent claimants empty handed, particularly those involved in such an awful tragedy as this. Indeed, in giving his decision in this case the judge said that he “regretfully” concluded that the Trust was not in breach of its duty. However this conclusion had been reached after a rigorous analysis of the Trust’s policies and practices and the matters that appear to have been taken into account included the following:

  • The Trust had clear written instructions on inspecting trees, which set out minimum standards of inspection and the need for risk assessment of trees in or near public places. The instructions also dealt with record keeping, remedial action and the competence levels of staff involved.
  • Careful consideration had been given to dividing the estate, which had some 250,000 mature trees in the Great Wood alone, into risk zones to ensure that resources were appropriately concentrated in areas where there was potentially high risk.
  • The people carrying out the inspections were experienced and appropriately qualified. The Trust’s forester had attended both a four day course and a one day course organised by the Trust and tree inspections were part of his day to day responsibility.
  • As explained above the tree in question had been inspected twice in the six month period preceding the accident.

While landowners can be reassured by this decision, confirming as it does that the duty to members of the public is not an absolute one, landowners will need to ensure that the policies and practices they have in place are clear, comprehensive and robust in order to ensure that they fulfil their duty to visitors to take reasonable care for their safety.