Landowner – Negligence – Compensation – Tree falling on railway from first defendant’s garden – Claimant seeking to recover cost of damage to train – Whether landowner having duty to carry out regular inspection of trees – Whether first defendant in breach of duty – Whether second defendant tree surgeon owing duty to third party – Claim dismissed
The first defendant owned an early Victorian house with a large garden adjacent to the railway in Staines. As a train owned by the claimant was travelling eastwards from Staines to Feltham, it collided with the stem of an Ash tree which had fallen into the railway from the garden of the property. The claimant sought to recover the cost repairing the damage to the train and other consequential costs. There was also a separate claim against the second defendant, a tree surgeon who carried out work to the trees in the first defendant’s garden. Damages were agreed at £325,000.
The issues concerning the potential liability of the first defendant were: (i) whether an ordinary landowner was obliged as a matter of course to instruct an expert arboriculturalist to carry out regular inspections of the trees on his or her land; (ii) whether the landowner was obliged to carry out preliminary/informal inspections; (iii) whether the first defendant had sufficient knowledge and experience to carry out such inspections; and (iv) whether she had in fact carried out those inspections.
The claimant’s case against the second defendant could only be maintained on the narrow basis that, when undertaking the work he had, as a tree surgeon, owed a duty of care both to the first defendant and the claimant, which went beyond the express terms of his agreement with the first defendant and extended to advising on general safety issues in connection with the tree, and/or a duty to warn them about the potential defects in the tree. That depended on the court finding that: (i) there was sufficient proximity between the second defendant and the claimant for such a duty of care to arise; (ii) that the second defendant was performing services pursuant to a retainer which should be taken to include a wide duty to point out specific problems with the tree, even if that task had not been requested by the first defendant; and/or that the second defendant owed a duty to the claimant to warn of such problems but had not done so.
Held: The claim was dismissed.
(1) The owner of a tree owed a duty to act as a reasonable and prudent landowner but not to put an unreasonable burden upon or force him or her to act as the insurer of nature. He was under a duty to act where there was an apparent danger which he could see with his own eyes and to carry out preliminary/informal inspections or observations on a regular basis. A general approach that required a close/formal inspection only if there was some form of trigger was also in accordance with the guidance published by the National Tree Safety Group and the Heath and Safety Executive. The resources available to the householder might have a relevance to the way in which the duty was discharged: Noble v Harrison [1926] 2 KB 332, Brown v Harrison [1947] 177 LT 281, Lambourn v London Brick Co Ltd [1950] EG, 28 July 1950, Quinn v Scott [1965] 1 WLR 1004, Goldman v Hargrave [1967] 1 AC 645, Leakey v National Trust [1980] 1 QB 485 and Micklewright v Surrey County Council [2011] EWCA Civ 922 applied.
A reasonable and prudent landowner was not obliged, 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. A closer inspection by an expert was only required where something was revealed by the informal or preliminary inspection which gave rise to a cause for concern. Individual landowners were not obliged to periodically engage an arboriculturalist to inspect their trees. At the very most, any freestanding duty would be a matter of fact and degree: Caminer v Northern Investment Trust Ltd [1957] AC 88 distinguished.
(2) An ordinary landowner, required to act reasonably and prudently, was obliged to carry out regular preliminary/informal inspections of the trees on his or her land which bordered a highway, railway or the property of another. The first step was to look at those trees or engage someone else to do so to see whether they were dangerous. It was their duty to have the tree inspected within a reasonable time and to consider the results of an inspection and take any necessary action. In the present case, the first defendant was plainly more than capable of carrying out a meaningful preliminary/informal inspection of her trees. Moreover, on the evidence before the court, she had carried out those inspections properly. There was nothing to trigger in her mind any concern or suspicion that there was a potential problem with the tree that needed to be investigated further: Caminer v Northern Investment Trust Ltd considered.
(3) The second defendant was a contractor who carried out specific tree works when requested to do so but was not an arboriculturalist. He was employed by the first defendant to carry out specific works in her garden that she had identified. As a contractor, he was obliged to carry out those works properly so as not to create a danger, either to the first defendant or to the claimant. He owed no general obligation to either the first defendant or the claimant to inspect or advise generally about the tree. His work had been limited to the contract that he had agreed with the first defendant, which did not contain that obligation. His duties were circumscribed by his contractual obligations. That was a complete answer to the claim against him: Caparo Industries plc v Dickman [1990] 2 AC 605, Henderson v Merrett [1994] CLC 55, Perrett v Collins [1999] PNLR 77, Carradine Properties v DJ Freeman [1999] Lloyd’s Rep PN 403, Plant Construction plc v Clive Adams Associates [2000] BLR 137, Aurum Investments Ltd v Avonforce Ltd [2001] Lloyds PN 285, Pickergill v Riley [2004] UKPC 14, Marplace (Number 512) Ltd v Chaffe Street [2006] EWHC 1919 (Ch) and Harrison v Technical Sign Company Ltd [2013] EWCA Civ 1569 considered.
John Meredith Hardy (instructed by Watmores) appeared for the claimant; Richard Stead (instructed by Lyons Davidson) appeared for the first defendant; Jason Evans-Tovey (instructed by BLM) appeared for the second defendant.
Eileen O’Grady, barrister
