07/01/2016
As we begin 2016 the media is dominated by the news of storms battering the North of England, Scotland and Northern Ireland. On 30th December, severe gales caused a number of trees to fall, blocking roads and causing damage to properties.
The cost of storms to the insurance industry is high. The great storm of 1987 cost insurers around £2 billion, and accountancy firm KPMG has estimated that, following December’s wild weather, the total cost to the UK’s insurance sector, businesses, individuals, communities and the Government will be between £5-5.8 billion in the long-term.
Insurance companies have been working around the clock over the holiday period to assist individuals and businesses affected by the storms and have stated they are in for the long haul to help communities rebuild and repair. However, there will come a time when investigations will have to be made as to whether some losses suffered by the insurers can be recovered.
When it comes to damage caused by falling trees, monies can be recovered in certain circumstances if the person responsible for the tree is found to have been negligent.
The Duty of Care Owed by Tree Owners
Both occupiers and anyone with responsibility for trees e.g. a tenant or local council, must take reasonable steps to manage and reduce risks. Steps include identifying and inspecting those trees that might cause injury or place property at risk. When hazardous trees are identified, suitable remedial action must be taken to reduce risk.
However, although those responsible for trees owe a duty of care to both their neighbours and visitors (and trespasses) on their land to ensure no damage or injury occurs due to the tree falling or branches snapping off, the duty owed is only that of “an ordinary landowner, not an expert”. (Lambourne v London Brick Co Ltd [1950] EG 28)
Inspections of Trees
There is no general duty to instruct an expert to carry out regular inspections of trees on a particular property (Micklewright v Surrey County Council {2011) EWCA Civ 922) ; however, landowners are expected to make preliminary inspections of trees they are responsible for on a regular basis. If these inspections result in some ‘trigger’; meaning a potential problem becomes apparent, a duty may fall on the landowner to instruct an expert to examine the tree.
The Stagecoach Case
The case of Stagecoach South Western Trains Ltd v Hind and another [2014] provides an excellent summary of the current law surrounding the claiming of damages caused by a falling tree.
The first defendant, Mrs Hind, owned an overgrown garden beside a railway track. In December 2009, the stem of an Ash tree, planted in her garden fell onto the railway track, and a train subsequently ran into it.
South Western Trains sought to recover damages of £325,000 against both Mrs Hind, and a second defendant, Mr Steel, a tree surgeon who had carried out work in Mrs Hind’s garden.
The High Court found that neither defendant was liable for the damage caused by the tree. It confirmed that a landowner was only required to do regular, general inspections of his or her trees, and the duty only extended further if a danger became apparent. Mrs Hind’s tree fell due to a crack which had developed in the union between the main trunk and a stem growing from it, as well as a scar on the tree which had spread internally and was causing decay. Neither of these issues were visible to Mrs Hind, and there was nothing to alert her that the tree was anything other than healthy.
However, the Court did conclude that the resources of the landowner would be taken into account when assessing whether they had done all that could be expected of them, and a local body or corporation may be held to a higher standard than the one given to Mrs Hind.
The Court also found that as Mr Steel’s work did not involve the inspection of the tree itself, he could not be expected to pick up on the unobtrusive decay and crack which led to the tree falling.
In Summary
For a landowner (or a person responsible for a tree) to be liable for damage caused by the tree toppling, or branches falling from it, they would have to be aware, from conducting preliminary inspections of the tree, that there was a risk of danger. If the owner was made aware of the risk and failed to take further steps in the form of having an expert inspect the tree, then damages may be recoverable.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. We act for both insurers and insured parties. If you would like to discuss any points raised in this article, please phone us on 0207 993 6960.