Liability for damage caused by fall of tree on to neighbour’s barn–Cause of action based on allegation of negligence against owners who had purchased and entered into occupation of adjoining land a short time before the tree fell–Evidence of conversation between the parties indicating that some of the trees on the new owner’s land, including the one that came down, were old, but not that any urgent action was necessary–11 days after this conversation, a period which included two Sundays, Christmas and Boxing Day, the tree fell on the barn–Court of Appeal reverse county court judge’s finding of negligence–No duty in the circumstances on the new owners of the offending tree to arrange for it to be inspected by a tree expert as a matter of urgency
This was an
appeal against a decision of Judge Goodall at Launceston County Court in favour
of the plaintiff, Frederick Charles Knight. The appellants, defendants in the
action, were Elizabeth Priscilla Hext and Jacqueline Loveday Hext
(administratrices of the Estate of J W Hext) and Elizabeth Priscilla Hext in
her own capacity. Elizabeth Priscilla Hext was the widow of the deceased J W
Hext who, as mentioned in the judgment, was ill at the time when the tree fell
on the plaintiff’s barn. Mr Hext in fact went into hospital two days after he
entered upon the property, leaving his wife in occupation and control.
Christopher
Moger (instructed by W R Kirk, of Manchester) appeared on behalf of the
appellants; Clive Toomer (instructed by Bright, Broad and Skinnard, of
Callington, Cornwall) represented the respondent.
Giving
judgment, STEPHENSON LJ said: This appeal arises out of the fall of a beech
tree on property owned and occupied by Mrs Hext, the second defendant, on
December 27 as long ago as 1972. It fell on to a barn belonging to the
plaintiff, Mr Knight, who is the owner and occupier of the adjoining property.
On October 10 1978 His Honour, Judge Goodall found that that fall was due to
the negligence of the defendant (and I treat Mrs Hext as ‘the defendant’
although the first defendants are the executors of her late husband, who was
ill at the time of the accident and has since died). The learned judge, on that
date, in the Launceston County Court gave judgment for the plaintiff for the
sum of £1,579.78.
The first
question, and I think the decisive question, raised by this appeal is, ought
Mrs Hext, as a prudent landowner going into occupation of this property on
December 12 1972, to have inspected this tree before it fell on December 27
1972? The learned judge, after saying
that he found it a difficult case and that he had altered his mind in the
course of it, answered that question ‘Yes’ and accordingly found against Mrs
Hext. Differing with hesitation from a decision of this learned judge on a
matter with which I at once confess he would be much better acquainted than I
am, I nevertheless have come to a firm conclusion that the answer to this
question ought to be ‘No’ and it should be answered in favour of Mrs Hext and not
against her.
The facts are,
as I have said, that she and her husband, who was then a sick man, went into
occupation of this property, which they had recently purchased, on December 12
1972. It was a property of some dozen acres containing quite a large amount of
woodland, including a spinney of 12 or more trees which contained the beech
tree which fell and damaged the plaintiff’s barn. On this property there were a
number of old trees. Mr Knight, the plaintiff, had lived on the adjoining
property for over 40 years. He had been a tenant for 10 years and he had bought
the adjoining property about the same time as the Hexts had bought their
property. Mr Hext went into hospital on December 14 1972 and Mrs Hext was
thereafter in control and occupation of this property as its new landowner.
On December
16, which was a Saturday, she saw the plaintiff and one of his workmen, a Mr
Curtis, cutting up a tree which had fallen in the park, which had belonged to
the property which she had bought but was then in the ownership of the
plaintiff. It may have been the first occasion on which the two parties had
met, although the plaintiff had realised that Mrs Hext had moved into the
property. However that may be, it was she who approached him and had a
conversation with him, beginning with her expressing regrets that his tree had
come down. That led to a conversation, as to which, as the learned judge said,
there was a dispute between the plaintiff and the defendant. It is not
necessary to go into details of that dispute, except to say that the plaintiff
thought that he had used the word ‘danger’ in reference to the trees on Mrs
Hext’s property. There is no dispute that he said there were old trees on her
property, past mature, that could come down, or that he pointed to a spinney or
clump which contained the tree which did come down on the night of December 27;
but he thought that he had referred to the danger of the trees in that clump
coming down and said not ‘that they could come down’ but ‘that they should
come down.’
That account
of the conversation was rejected by the learned judge in favour of Mrs Hext’s
account, supported, as Mrs Hext’s account was, by the evidence of Mr Curtis,
who did not remember the word ‘danger’ being used. What the learned judge found
about that conversation was that it contained no specific warning about the
particular tree and no suggestion of urgency or any specific statement of
danger. ‘I am left with a clear impression,’ said the learned judge, ‘that the
plaintiff spoke of trees nearby, probably pointing to the clump or spinney and
certainly his statement included it. He said the trees were old and could come
down. This was in the context of the tree which had come down. But I accept
that there was no suggestion of urgency or any specific statement of
danger.’ The learned judge went on to
say this: ‘The problem is, where a new landowner is told that there are old
trees which could come down, in the context of a tree which had come down,
should that put him on inquiry? I think
it should. There was no question of urgency. But after that conversation with
the plaintiff, I think that a reasonably prudent landowner would have said:
‘Well, I’ve got old trees near someone else’s buildings; I think I ought to
take a look at them.’ It was only
mid-December; the bulk of winter storms were to come. She knew that the trees
were near another’s building–she told me ‘You can see the roof of the stable”
–that is the barn–”from the lawn.”
He repeated a
number of times that he thought a prudent landowner, after that conversation,
should have gone to look at the trees and his final view was expressed in this
sentence: ‘I think a prudent landowner would have looked at the trees that day
or the next–it would only take half an hour–and would have picked up the telephone
and asked someone to come and have a look. Mrs Hext did not do that.’
Then he went
on to find that, if she had done that, there was a reasonable chance that
remedial action would have been taken in time, because there was evidence that
there was a tree-feller working nearby, some 400 yards away, and the learned
judge thought he could take judicial notice of the fact that there were a
number of enterprising men in the country with chain saws. So he came to the
conclusion that this defendant had failed (as he put it, ‘just failed’) in her
duty of care and, having failed in her duty of care, could not really be heard
to say, without some further evidence, that, if she had discharged her duty of
care, it would not have resulted in timely action to prevent the damage to the
plaintiff’s barn. I should have said that the plaintiff’s barn, or that part of
it on which the tree fell, was not inhabited, there was no danger to life and
limb, but it was used for storing wood, machinery and wool.
The evidence
of experts on both sides was that this tree which fell was a beech tree some
120 or 130 years old and that beech trees (it was not clear whether they
usually do or only can exceptionally) live for 200 years. There was undisputed
evidence that it was leaning over the defendant’s boundary in the direction of
the barn and that its crown was weighted in the direction of the barn, that the
prevailing wind from the south-west would further improve its chances of
falling on the barn if it did come down, but that it did present a healthy
appearance. After it came down it was discovered that it was suffering from
butt rot, but there was no visible sign, the judge having rejected the
suggestion that there was any significance in the fact that the roots had
lifted, of its being diseased or more likely to fall than any old tree leaning
in that way and subjected to the storms of winter. However, it was the evidence
of the plaintiff’s expert, at any rate, that an expert looking at it would have
recommended lopping the crown, and I think would have recommended felling the
tree after some preliminary lopping of the top, and that it would have required
a highly-skilled treefeller to do what was not a simple job, to bring down the
tree without bringing it down on to the barn.
Mr Moger has
submitted on behalf of the defendant that it could not have been negligent for
Mrs Hext not to have inspected the tree within 11 days of that conversation
with the plaintiff, Mr Knight. I am bound to say that I accept that submission.
If the conversation with Mr Knight had contained, what Mr Knight said it
contained, then there would have been urgency in the matter and the judge’s
finding that Mrs Hext ought to have inspected or had a look at the spinney,
including this tree, that day or the next, that is to say, December 16 or 17,
would not, I think, have been open to serious complaint. But on the version of
the conversation which the learned judge accepted, I cannot myself see that
there was any urgency, any reason for Mrs Hext to think that the matter was
urgent or that what she had been told required her to go before Christmas, or
before the New Year, or before December 27 at any rate, to look at this
spinney.
As it seems to
me, even without the fact that a good deal of her time was no doubt taken up by
worry about her husband’s illness, and we are told that there was also a 21st
birthday party for her daughter, Christmas was coming, and, although as a
countrywoman she no doubt realised, with old trees and one having come down,
that winter storms might bring trees down, unless she was not merely put upon
inquiry that there might be old trees which could come down, including old
trees in this clump, but put upon such inquiry as to suggest that some
immediate action was called for, it was perfectly reasonable for her to take
the view ‘I will get round to having a look at these trees after Christmas or
in the New Year.’ If the duty imposed on
her was to inspect this clump on one of the five remaining working days (and
that is all there were) before the tree fell down, it seems to me to impose an
unreasonably high duty upon this landowner. The conversation having taken place
on the Saturday, she could have, Mr Toomer submitted, easily taken half an hour
in going round to look at the trees. But, in all the circumstances, I cannot
see that there was any duty on her to go and look at them at that weekend or on
any weekday the
go and look at them. On that ground I would allow this appeal.
In case I am
wrong about that, I think I ought to go on to consider both Mr Moger’s other
two points. One of them I think is formidable, the other not. He says,
secondly, that even if there was such a duty and Mrs Hext had gone and looked
at this tree well before December 27, she would not have called in an expert
and it would not have been reasonable to call in an expert. She would have seen
a 60-ft tall apparently healthy tree, it is true leaning in this way, it is
true weighted in this way, and liable to fall, if it did fall, on the barn. But
why should she say to herself ‘I must do something at once. I must call in an
expert?’ It is said by the learned judge
that she had only to telephone, but it would not have been reasonable to expect
her to do that on the Saturday or Sunday. So there were only five days on which
she could do that–December 18, 19, 20, 21 and 22. Then we are at the weekend,
the 23rd would be Saturday, then Christmas Eve, Christmas Day and Boxing Day,
with the tree down on the 27th. It does not leave much time to take action. For
my part, if I had any doubt on the first point, I would have considerable doubt
whether it could be found that her inspection of the tree in time would have
resulted or ought to have resulted in her telephoning an expert before it fell.
There remains
the third point submitted by Mr Moger. If she had looked at the tree and if she
had called in an expert as a matter of urgency–I mean telling the expert that
she regarded the matter as urgent or, as Mr Toomer suggests, saying: ‘Well, I
am not sure whether it is urgent or not as a result of my inspection, but I
would like you to come and look right away and say what you think about
it’–would she have been able to get a tree-feller in time? Mr Moger has submitted that that, too, is
very doubtful. On that point I am not prepared to put my opinion against the
opinion of the learned judge, based as it was on evidence that there was a
tree-feller with a winch, and so on, working some 400 yards away from this
property at the material time and that the judge had judicial knowledge that
there were skilled tree-fellers quite capable of doing this job in that
neighbourhood.
But, for the
reasons which I have given, I have come to the conclusion, differing, as I say,
reluctantly from a decision of this learned judge, that he gave the wrong
answer to the question and this appeal ought to be allowed and judgment entered
for the defendants.
Agreeing,
WALLER LJ said: I realise that, in allowing this appeal we are differing from
the view of a very experienced judge, but I have come to the conclusion that it
is not possible to reconcile his finding that there was no question of urgency
in the conversation with the finding of negligence in failing to take action at
once. The timetable shows that Mrs Hext moved into the house on Tuesday,
December 12, and that the conversation or conversations–she speaks of two
conversations–took place on Saturday, December 16. There was then the following
week, with Christmas Day on Monday week. So that there were only five working
days, or 5 1/2 if the Saturday before Christmas on Monday could be counted, in
which action could be taken.
The test of
the standard of care is that of a prudent non-expert landowner. The first
question which has to be considered is: was she under an obligation to take
action at once to inspect trees, as the judge found, or was the information
given to her, with no question of urgency, such as it would be proper for her
to make an inspection of the trees at some time, namely, within a reasonable
time? In my judgment, there was no
question of urgency raised by the conversation and therefore, although the
nature of the trees had been drawn to Mrs Hext’s attention, all that was
required of her was that, within a reasonable time, she should go and make an
inspection. I find it impossible to say that a failure to do so before
Christmas was a failure to take action within a reasonable time.
But even if
‘reasonable time’ is to be construed as within two or three days, it seems to
me that it is quite impossible to say that, at any time during that period, one
can import such a sense of urgency as would make it necessary to obtain the
services of a tree expert and a tree-feller within the two, three or four days
which were then left.
So I agree
with my Lord that, at the first stage, there was no breach of duty on the part
of Mrs Hext, and even at some stage during the next two or three days there
would be no failure to take action within a reasonable time if nothing was done
before Christmas. I agree that this appeal should be allowed.
Also agreeing,
CUMMING-BRUCE LJ said: It is easy to make carping criticisms of a judgment when
one reads the note of the judgment and I hope that my criticisms are not
carping. I have come to the conclusion that the judge did not really ask
himself the right question when he considered the problem which he identified
as the first problem. He asked this question: When a new landowner is told that
there are old trees which could come down, in the context of a tree which had
come down, should that put him on inquiry?
The judge answered that question in the affirmative, adding that there
was no question of urgency.
Then the judge
went on to postulate the hypothetical answers that a reasonable landowner would
give in the situation that had arisen. He put it this way: ‘After the
conversation with the plaintiff a reasonably prudent landowner would have said:
‘Well, I have got old trees and they are somewhere near his building. I think I
ought to take a look at them.” That is
an incomplete answer, because the problem posed is: would the prudent
landowner, in all the objective circumstances, have said: ‘I think I ought to
take a look at the trees in a reasonable time’ or would the prudent landowner
have said: ‘I think I ought to take a look at the trees immediately?’
It seems to me
clear that what moved the judge to decide that the duty was to look at the
trees immediately was founded on his appreciation of the fact that it was very
easy for the defendant to go and look at the trees, just a matter of walking a
few steps. But though it was very easy to do that, the question of the extent
of the duty depends on whether, on the facts, the duty was to look at the trees
as a matter of urgency. For the reasons stated by my Lords, on the judge’s
findings, the answer to that question is ‘No.’
I agree that
the appeal should be allowed.
The appeal
was allowed and the judge’s order set aside, judgment for the defendants being
substituted, with costs in the Court of Appeal and below.
