Tree falls and highway duties

Inspection and maintenance responsibilities, combined with a requirement for informed risk assessment and expert knowledge, all add up to a testing dynamic (particularly when set against a backdrop of finite resources).

Colar and Singh v Highways England

The case of (1) Colar & (2) Singh v Highways England [2019] involved all of these issues, with the added ingredient that the defendant was also the highway authority.

The claimants were injured when their car collided with a tree that fell from the central reservation of the A45 dual carriageway. The claimants were successful, establishing their claims in negligence and nuisance. For the purposes of this update, the focus is less on the facts and more on the following legal issues which arose:

• It was both pleaded and strongly argued by the claimants that the trees on the central reservation were part of the fabric of the highway so as to engage the repairing duty under s.41 of the Highways Act 1980 (the Act). Perhaps surprisingly, the judge seemed persuaded that this was arguable, seemingly in the same way that a highway verge is generally considered to be part of the highway. However, ultimately he concluded that this was not the case and they were rather “part of the soft estate owned or controlled by the defendant”.
• The defendant’s duty was therefore the common law duty of the reasonable and prudent landowner, as set out in Stagecoach South Western Trains v Hind [2014]. A system of inspection is required and regard will be had for a landowner’s resources.
• The nature and frequency of inspections required to discharge the duty will depend on the individual facts – the type, size, location and potential of the tree to cause harm are relevant; the principal factor being the level of risk that the tree poses to the public (Cavanagh v Witley Parish Council [2018] EWCA). In the instant case, a three-year cycle of inspections was held to be inadequate with reference to the tree, its location (“a position of extreme high risk”) and potential to cause serious harm to road users (as indeed it did).
• Inspections should be carried out by suitably trained and qualified staff in accordance with local or national standards.
• In the event of a breach of duty, a claimant must still establish causation, i.e. that the failure to inspect sufficiently frequently and/or competently was the cause of the tree failure (and therefore the accident).

Comment

The s.41 argument was somewhat novel. The notion of a defective/dangerous tree amounting to a s.41 breach so as to shift the burden of proof to the defendant to establish a s.58 defence is no doubt an alarming one for local authorities; particularly given the restricted defence arguments around causation in the event that the s.58 defence does not stand up.

In terms of the decision in negligence/nuisance, the judgment is very much in keeping with the Cavanagh v Witley case - tree location and risk profile dictating the necessary frequency of inspection. More generally, the case is another example of the risk management challenges presented by trees at a time of increasingly unpredictable weather conditions and when the already scarce resources of public bodies are being severely tested by the COVID-19 crisis.

Finally, the case is a reminder (should any be needed) of the legal maelstrom that a tree fall can create. In Colar, the issue under scrutiny was the civil liability of the defendant for serious personal injuries. However, such incidents can also result in police involvement, investigation and prosecution by the Health and Safety Executive (with scope for very significant fines) and, in cases involving fatalities, lengthy coronial inquests. Indeed, the Weightmans Regulatory team has recently advised a local authority in a case involving all of these jurisdictions and is providing ongoing legal advice to clients in a number of cases that have tragically resulted in a loss of life.