Damages for injuries from fallen tree

A claimant sought damages for severe personal injuries and consequential loss suffered after a large tree had fallen across a road and onto the vehicle he was driving in 2012. The land was owned by D1. D1 organised inspections of the trees every 3 years, and D2 had been instructed to inspect and report on the previous 2 occasions. The roots of the tree were extensively decayed and the claimant asserted that the decay would have been detected by a competent arboriculturist at any time during the preceding four to five years.

He claimed that the council had been negligent in employing S because he did not have the appropriate qualifications or expertise, and had failed to ensure that he had adequate insurance cover. S initially confirmed that the tree had been inspected in 2009, but later stated that he had not inspected it; expert evidence confirmed that the fungal disease was just beginning to form in late summer 2009.

Held:

(1) D2 had lied about whether he had in fact inspected the tree in 2009 in an attempt to escape liability (although he had insurance, it did not protect him from liability for such an accident);

(2) However, given the expert evidence that the fungal disease could not have been detected in 2009, D1 was not negligent in instructing D2 as such negligence, if proved, would not be causative of the accident;

(3) The remaining question was whether the council was negligent in adopting its 3-yearly inspections. Applying simple negligence principles, taking account of the risk of failure together with the risk of serious damage, the tree should have been inspected at least every two years. An 18-month inspection cycle, when trees were in and out of leaf, would have been reasonable. The Forestry Commission Practice Guide supported that finding. It was significant that, prior to the accident, that was the advice being given to the council by arboriculturists, including D2. The council’s resources were finite, but it had not been suggested that the inspection policy had been influenced by a lack of funds.