In Cavanagh v Witley Parish Council, Queen’s Bench Judgment on 14 February 2017, the Parish Council was found liable in negligence when a large mature lime tree on its land, with severe and extensive decay in the root system extending into the base of the trunk, fell across a road and onto a bus, causing the driver severe injury. It was a busy public road. The tree, which leant towards the road, and was over 20 metres high, was in a high risk position alongside the road, albeit, on cursory observation, in a healthy condition. It required regular inspection by a competent arboriculturalist. The Council’s three-yearly inspection policy with regard to its tree stock was “inadequate”. Inspection should have been more frequent. The Council had been advised to do the survey every two years. The local Borough Council had at the relevant time been operating a one-year inspection in respect of trees in high-risk areas, including apparently healthy trees.
The Judge (Sir Alistair MacDuff) adopted the following principles (paragraph 67): (1) Where a tree (or group of trees) is within an area where people (or high value property) are within their falling distance, inspection is necessary; (2) If it can be reasonably foreseen that there is a risk of serious injury/damage a duty arises to minimise that risk; (3) This is particularly the case alongside a public road, more so if it is busy and more so if the relevant tree(s) is/are large or old. The Judge observed that it is known that trees can become diseased and unstable within a relatively short time frame and that this is particularly the case with older trees.
The Judge concluded (paragraphs 68 and 69) that: (1) The lime tree, alongside a relatively busy public road, was in a high risk position; (2) It required regular inspection; (3) It presented a higher risk than (i) a smaller tree, (ii) a younger tree, (iii) a tree leaning away from the road, or (iv) a lighter tree; (4) f it failed it would undoubtedly cause severe damage, at least to a house opposite; (5) This tree, in its extreme high risk position, should have been inspected more frequently than every three years, especially having regard to the Forestry Commission Practice Guide.
The Judge (paragraph 70) regarded the fact that the Parish Council treated all trees with the same care and subjected them all including this lime tree to the same three-year inspection regime as being “part of the problem”. A distinction should have been drawn with “young saplings in areas far from the madding crowd”. The Judge said that if the majority of the tree stock had been inspected on a 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 especial care”. On the application of negligence principles, this lime should have been inspected “at least every two years”. Indeed an 18-month cycle would have been reasonable.
Finally (paragraph 71) a two-yearly inspection would have discovered that the tree was diseased well in advance of the accident, the tree would have been felled or otherwise made safe, and the accident would not have occurred.