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News | Fri 17th Mar, 2017
Trees can cause of a lot of damage when they fall. If they are of the right side, they can crush and destroy property, and can maim or even kill. Often they fall without warning, giving those affected no chance to avoid them. That very thing happened to two of Simon Brindle’s clients in May 2012, when a 10m high, 72cm diameter London Plane tree fell suddenly onto the taxi they were travelling in along the South Circular in London.
The tree in question was the responsibility for Transport for London, who admitted a duty to monitor and maintain the tree in its defence to the claim brought against it. However, liability was denied on the basis that Transport for London could not have known that the tree was likely to fall.
As practitioners will be aware this is a common defence in such cases and one that frequently is successful. Apparently healthy trees can topple without warning and seemingly sickly trees can stay upright for years. All that is required by the law is that Transport for London take such care as was reasonable in the circumstances (Caminer v Northern & London Investment Trust  AC 88). TfL contended that it did so by engaging suitability qualified arboriculturalists to inspect its trees on an average annual basis. It advanced evidence that at the inspection prior to the accident, carried out in February 2011 (some 15 months prior to the accident), no concerns were raised. Moreover, the tree in question fell because its roots became infected and decayed. Transport for London contended that, even if the tree had been investigated further following the February 2011 inspection, that infection could not have been found using reasonable inspection methods, because it would have been too far below ground.
The Claimants’ case was that there were a variety of visible signs that the tree was likely to fall present both in February 2011 and at a further inspection that ought to have taken place, but did not, in February 2012. Of significance was the fact that the tree had developed a significant lean late in its life and the fact that there was dieback and deadwood evident in its crown.
Expert evidence was called by each party to support their cases. During cross-examination, the Defendant’s expert accepted that his initial conclusions had been wrong and that there were features about the tree that should have led to further investigation.
As a result, and in any event, HHJ Saggerson concluded that the visible signs present in the tree were such that it ought to have been the subject of further investigation after the February 2011 inspection. He held that, had those investigations been carried out, they would have revealed that the root system of the tree was failing. He concluded that the tree would have been felled in Autumn 2011, and so, the accident avoided. The case now continues on quantum.
In the case the Claimants were helped significantly by photographic evidence of the tree taken at various times. Some of those photographs came from the Defendant’s own records, others from its highways inspectors, whilst the most helpful came from Google Street View – something practitioners might want to consider in future cases.
Simon was instructed by Lisa Fountain at Slater & Gordon.
For the press release, please click here
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