Cavanagh v Witley Parish Council, Court of Appeal

Facts

In January 2012, after stormy weather during the night, a lime tree some 25 to 30 metres high fell onto the adjoining A283. Regrettably the tree collided with the bus being driven by the claimant and he was badly injured. The tree was subject to inspections every three years by a tree surgeon appointed by the local authority. It had been inspected in 2006 and 2009 and no defects were present. The cause of the fall was decay that had begun to develop after the 2009 inspection such that it was not discovered by the local authority.

Decision of trial judge

The claimant succeeded. The judge accepted the evidence of the claimant’s tree expert who stated that the tree was in a high risk position as it was located in a very busy area and next to a main road. Therefore, given its size, location and potential to cause very serious harm, it should have been inspected no less than every two years and this more frequent regime would have identified the decay and prevented the accident. The defendant appealed. The thrust of the appeal was that it had been accepted by the experts and the trial judge that whilst the tree was in a high risk position, it was not in itself a high risk tree by reference to any recognised or published criteria. Indeed, a tree would only generally be deemed to be high risk if it had been identified as unhealthy and this was not the case.

Court of Appeal

The appeal was unanimously dismissed. The judge had made findings of fact that were open to him on the evidence. In particular, his conclusion that the size, age, weight and location of the tree, and the likelihood of it causing very severe damage if it fell, meant that it required more regular inspection was “unimpeachable”.

Comment

Arguably the local authority was unfortunate to lose this case at first instance. It had a robust system of inspection carried out by an expert and the tree had shown no signs of ill-health. The difficulty on appeal was that it had to overturn findings of fact in order to succeed. This proved to be an insurmountable hurdle as the Court of Appeal was not willing to find that the judge was plainly wrong.

More significant perhaps is the Court of Appeal’s apparent endorsement of a Forestry Commission Practice Guide (2000) – Hazards from Trees. After quoting a passage in this guidance about certain trees requiring more frequent inspections, LJ Flaux referred to; “the force of the point being made in this passage about the need for particular “rigour” in inspecting large trees which are adjacent to a main road and which represent a significant potential hazard” (para 36). At first blush, this has potentially significant implications for local authorities (and other landowners).

It is to be hoped that comfort can be taken from the specific facts of this case. In particular, this Parish Council is only 11 square kilometres and the majority of its trees are, according to the first instance judgment, either not along the roadside or are not of a size and weight, whereby they could cause severe injury or damage if they failed. In the words of the trial judge; “I suspect that there was none that had more potential for causing harm than this lime tree. What was required here was a distinction. If the vast majority of the tree stock had been inspected (as it could well have been) on a much more infrequent basis…a proper and more rigorous system of inspection could have been instigated in respect of the small number of trees which merited special care; trees which were large, heavy, old/mature, and in places where they could cause serious damage.”

For local authorities with large numbers of trees and finite resources, this may be a key point. The Court of Appeal was only looking at findings of fact so it had no cause to hear reasonableness or resources arguments. Clearly though, there is far greater scope for more frequent inspection of a high risk tree if a local authority only has one such tree in its occupation and control.