Stagecoach South Western Trains Ltd v Hind & Anor [2014] EWHC 1891 (TCC) (11 June 2014)

This case provides a comprehensive resume of the law as to a landowner’s liability for trees on their land and raised important issues as to duty of care and proximity.
As long ago as 1926 Rowlatt J in In Noble v Harrison [1926] 2 KB 332 noted that;
"I see no ground for holding that the owner is to become an insurer of nature, or that default is to be imputed to him until it appears, or would appear upon proper inspection, that nature can no longer be relied upon…"
The first defendant was the owner of a property an early Victorian house adjacent to a railway line in Staines. In December 2009, one of the claimant’s trains, collided with a stem of an Ash tree which had fallen onto the railway line from the garden of the property. 
The claimant sought to recover from the property owner the cost of repairing damage to the train as a result of a stem falling and other consequential costs. In addition there was a separate claim against the second defendant, a tree surgeon who carried out certain work to the trees in the garden in 2006 and 2007. The liability of both defendants remained in issue.
Material facts
The reader is referred to the lengthy judgment for the background facts. This case summary is limited to the key issues in law set out below. The following key material facts should be noted:
1. The property owner purchased the property in 2001. The tree was about 150 years old. It was originally made up of three separate stems. One stem had fallen before the first defendant bought the property. The two remaining stems, grew out of a common trunk.
2. In January 2006, the property owner engaged the second defendant to carry out some further work in the garden. As to the tree itself, the property owner said that she had asked the second defendant to clear out the crown and remove the deadwood — principally twigs — in order to allow more light in.
3. The weather in December 2009 was cold with a strong wind and snow. A weather report concluded that some of the winds that night reached gale force; the temperatures were below freezing; and there were snow showers. The  prevailing weather conditions — in particular, the wind and the snow — explained why the eastern stem of the tree fell when it did, although they were not the principal cause of the fall.
4. In a photograph taken in about September/October 2009 (three months prior to the collision), the tree can be seen to be in apparently good condition. Mr Sheppard , the claimant’s expert, noted:
"…it does show that the crown has good colour and density, with no obvious evidence of dieback or decline from this direction, and compared with other trees within the vicinity. From the photograph there is no evidence to suggest that the tree crown showed any significant signs of physiological ill-health or decline."
5. The joint statement of the parties experts noted “The more limited ivy covering on the lower trunk and any dense ground vegetation directly adjacent to the trunk would have obscured obvious defects when viewed from a distance when standing at ground level."
6. As to guidance for those concerned with tree management the National Tree Safety Group published a report concerned with tree inspections. It identified three types of inspection: informal observations, formal inspections and detailed inspections. The Health and Safety Executive published a report (SIM 01/2007/05) noting at paragraph 10(ii) “For trees in a frequently visited zone, a system for periodic, proactive checks is appropriate. This should involve a quick visual check for obvious signs that a tree is likely to be unstable and be carried out by a person with a working knowledge of trees and their defects, but who need not be an arboricultural specialist."
7. The Joint Statement by the experts noted that for a professional, a reasonable inspection frequency for the tree was every 2 to 3 years. The experts also agreed that a quick visual check was "likely to be a reasonable starting point in that situation", but they disagreed on the criteria that would trigger the requirement for clearance of vegetation to allow access for a closer inspection.
Liability of Landowner for trees
Mr Justice Coulson reviewed the law and noted:
1. The owner of the property owed a duty to the claimant to act in the manner "to be expected from a reasonable and prudent landowner": see Caminer v Northern Investment Trust Ltd [1951] AC 88.
2. In Brown v Harrison [1947] 177 LT 281, Somervell LJ reiterated the relevant test (formulated by the judge at first instance):
“If there is a danger which is apparent, not only to the expert but to the ordinary layman which the ordinary layman can see with his own eyes, if he chooses to use them, and he fails to do so, with the result that injury is inflicted, as in this case, upon somebody passing along the highroad, the owner is in those circumstances responsible, because in the management of his property he had not acted as a normal reasonable landowner would act."
3. In Quinn v Scott [1965] 1 WLR 1004, Glyn-Jones J found for the claimant because the decay of the tree (which was owned by the National Trust), was there to be seen and the tree should have been felled. The judge said: 
"The duty of the Trust is to take such care as a reasonable landowner – and that means a prudent landowner – would take to prevent unnecessary danger to users of the highway adjoining the Trust’s land. There is not to be imputed in the ordinary landowner the knowledge possessed by the skilled expert in forestry…But, in my opinion, there may be circumstances in which it is incumbent on a landowner to call in somebody skilled in forestry to advise him, and I have no doubt but that a landowner on whose land this belt of trees stood, adjoining a busy highway, was under a duty to provide himself with skilled advice about the safety of the trees”
4. In Micklewright v Surrey County Council [2011] EWCA Civ 922, the Court of Appeal dismissed an appeal against the first instance judge’s conclusion that the death of an individual killed by a branch falling from a tree overhanging the highway was not attributable to the negligence of the local authority. The judge found that extensive internal decay was a major factor in the branch’s fall. He found that nobody had seen any external signs of decay and he found that, even if the local authority had had in place a proper system of inspection, the extent of the decay, and the danger it posed, would not have been revealed.
5. Leakey v National Trust [1980] 1 QB 485 reiterated the principle that, in cases involving natural nuisances, the obligation was "to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one’s neighbour or to his property".
6. In Corker v Wilson (10th November 2006; Mayor’s and City of London Court; HHJ Simpson QC), the defendant was an ordinary landowner who owned a tree by a road. A heavy branch fell onto a passing car. There was a crack at the junction of the stem of the branch. The claimant’s case was that this should have been identified and the branch should have been lopped. The defendant said that the crack could not have been seen on a roadside inspection or even on a more detailed inspection and that the tree was in visibly good health. The judge rejected the claim, saying that the defendant carried out informal observations of the tree on an ongoing basis and that all the evidence was that the tree was in good health. There was nothing about the tree which should have alerted the defendant or led him to obtain a more detailed inspection by an arboriculturalist. 
Summary of the principles
Mr Justice Coulson set out the following very helpful succinct summary as to a landowner’s duty:
1. The owner of a tree owes a duty to act as a reasonable and prudent landowner. See Caminer v Northern.
2. Such duty must not amount to an unreasonable burden see Lambourn v London Brick Co Ltd [1950] EG 28 or force the landowner to act as the insurer of nature see Noble v Harrison. 
3. However he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes see Brown v Harrison.
4. A reasonable and prudent landowner should carry out preliminary/informal inspections or observations on a regular basis Micklewright v Surrey County Council.
5. In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists. This will usually be because preliminary/informal inspections or observations have revealed a potential problem. In addition. It could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections.  
As to the liability of the landowner Mr Justice Coulson held:
1. The landowner was not obliged to instruct an expert to carry out regular inspections of tress. The authorities did not require a reasonable and prudent landowner as a matter of course and without any trigger or warning sign, to pay for an arboriculturalist to carry out periodic inspections of the trees on his or her land. 
2. An ordinary landowner, required to act reasonably and prudently, is obliged to carry out regular preliminary/informal inspections of the trees on his or her land, particularly where those trees may border a highway, a railway or the property of another. The authorities either say expressly that a landowner should perform this task, or simply assume that such an obligation exists. 
3. As to whether the landowner carried out a proper inspection, there was nothing which should have triggered in their mind, as a reasonable and prudent landowner, any concern or suspicion that there was a potential problem with the tree which needed to be investigated further.  The landowner regularly looked at the tree, whilst a certain feature may have altered an arboriculturalist to the presence of a potential problem, the claimant’s expert accepted that there was no way in which such a feature would have alerted an ordinary landowner to any difficulty. 
4. A reasonable and prudent landowner in the landowner’s position was not obliged to struggle through the nettles and brambles to the foot of what appeared to be a healthy tree, in order to pull off some of the ivy leaves and then strip off the lattice work of ivy stems from the base of the tree in order to look for decayed areas behind the ivy.
Accordingly the landowner’s duty extended no further than the carrying out of periodic informal or preliminary observations/inspections of the tree. They complied with that duty. There was nothing that should have alerted her, or put her on notice, that the tree was anything other than healthy, or required a closer inspection by an arboriculturalist. 

The claim against her failed and thus there was no need to consider her claim for contributory negligence against the second defendant. 

The reader is referred to the judgment as to the whether the second defendant owed any duty of care to the claimant.  Of note was the fact that the second defendant was a tree surgeon not an arboriculturalist.
Whilst this case did not establish any novel issues of law it does provide an excellent resume of the law in  what is becoming, to excuse the pun a growing area.
The duty is as noted above to act as a reasonable and prudent landowner. They must carry out informal inspections and observations. There may be a need for a full inspection by an expert where problems are encountered or where there is a lack of knowledge to carry out informal inspections.
It is indeed telling that one of the leading textbooks on negligence Charlesworth and Percy 12th Edition, notes at paragraphs 10-20 that "there is no obligation to call in an expert to examine trees, unless there is reason to believe that they may be unsafe".
As ever policy plays a part in any consideration. Mr Justice Coulson observed that the resources available to the householder may have a relevance to the way in which the duty is discharged (see Leakey v National Trust [1980] 1 QB 485).
Today's Conveyancer