Robert Golin successful for the defendant in a fallen tree case

Robert was instructed by Plexus Law to act for two of the defendants in a claim arising from damages caused by a fallen tree. The claim was dismissed at trial.

In December 2011, a mature oak tree, which was situated on farm land owned by D1 and D2, fell onto C’s property causing damage.

C commenced proceedings against D1/D2, the owners of the farm land, as well as D3/D4, who rented the land from D1/D2 under a tenancy agreement.

Under the tenancy agreement, D3/D4 were obliged to conduct regular inspections of all trees and to inform D1/D2 of any dead or unsafe trees.

The claim against D1/D2 was defended on the basis that: (i) any liability in the case lay with D3/D4, given that they bore the responsibility of inspecting the tree; (ii) in any event, C could not establish liability against any of the parties on the facts of the case.

The court was referred to Stagecoach South Western Trains Ltd v Hind & Steel [2014] EWHC 1891, in which HHJ Coulson examined numerous authorities relating to the duty of care in respect of fallen trees. In particular, the court was asked to apply the analysis set out at paragraph 68 of that judgment:

1. the owner of a tree owes a duty to act as a reasonable and prudent landowner;
2. the duty must not amount to an unreasonable burden. The landowner has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes;
3. a reasonable and prudent landowner should carry out informal inspections or observations on a regular basis;
4. if the informal inspections or observations reveal a potential problem, the landowner should arrange for fuller inspections by arboriculturalists;
5. the resources available to the landowner may have a relevance to the way in which the duty is discharged.

In Robert’s case, expert evidence suggested that the tree was suffering from significant internal decay, which was a significant causative factor in the tree’s failure. In addition, a report compiled by a tree surgeon the day after the index accident suggested that the tree had fallen, not because of a failure in the trunk, but because the roots had snapped.

Robert successfully argued that D1/D2 had acted entirely reasonably by delegating the responsibility for inspections to D3/D4 under the tenancy agreement. As D3/D4 were farmers who worked the land on a daily basis, it made perfect sense that they should inspect the tree. Even if D1/D2 did not personally inspect the tree, the tree was being inspected by somebody and, therefore, the situation was no different to D1/D2 employing a contractor to inspect the tree.

Robert also argued that liability could not be established in any event, as the tree was diseased internally and/or at root-level. A visual inspection by D3/D4, who were accustomed to trees, revealed no visible problems, and thus there was no requirement to undertake a more detailed inspection.

The claim was dismissed on that basis.

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Author: Robert Golin Farrars (chambers@farrarsbuilding.co.uk)

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