Case files - Highways authority's tree inspection regime found negligible

Thursday 29 April 2021

A highway authority was liable in negligence and nuisance for a tree that fell onto the highway and into the path of an oncoming vehicle. The highway authority’s inspection regime for the tree was inadequate.

Background

The Claimants, a driver and his passenger, were injured when their car collided with a tree that fell from the central reservation of the A45 dual carriageway. The central reservation was lined with tall, mature trees that had been planted by the Defendant. The offending tree was a European Lime measuring some 17 metres in height.

The Claimants alleged that tree was dangerous due to decay and the Defendant was in breach of its duty to maintain the highway under Section 41 of the Highways Act 1980 (Act). They also alleged that the Defendant was liable in nuisance and negligence for failing to address the risk presented by the tree.

While the Defendant accepted that the tree was in a dangerous condition at the material time, liability was denied on the basis that the tree did not come within the Section 41 duty of the Act. Negligence and nuisance were also denied as the tree was inspected by an arboriculturist ten months prior to the accident and didn’t require attention.

The judgment

Perhaps surprisingly, the Judge seemed persuaded that it was arguable that the tree came within the Defendant’s Section 41 repairing duty. This was seemingly on the basis that it was analogous with a highway verge, which is generally considered to be part of the highway. However, ultimately he concluded this was not the case and the trees 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]. Under this 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 this 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). Further, the pre-accident inspection of the tree was held to be inadequate as it was not supported by documents or evidence from the inspector and “it was not carried out by reference to any recognised guidelines”.

Lessons to be learnt

The Section 41 argument was somewhat novel. The notion of a defective or dangerous tree amounting to a Section 41 breach so as to shift the burden of proof to the Defendant to establish a Section 57 defence is an alarming one for local authorities.

In terms of the decision in negligence or nuisance, the judgment is in keeping with the Cavanagh v Witley case and the concept that tree location and risk profile will dictate the necessary frequency of inspection. Further, it is essential inspections are carried out by suitably trained and qualified staff in accordance with local or national standards.

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.

Peter Wake (peter.wake@weightmans.com) is Partner and Head of Local Government Litigation at Weightmans LLP.

 

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