A landowner is not an insurer of nature.
A railway company has sought to hold a landowner liable for damage caused by her tree falling on a railway line.
On the night of 17 December 2009, one of the Claimant’s trains hit a very large stem from an Ash tree that had fallen onto the track from Ms Hind’s garden next to the line in Staines. £325,000 worth of damage was caused and the Claimant held Ms Hind liable in negligence. Fortunately, the train was empty of passengers and travelling at only 40 mph but 2 of its carriages were badly damaged.
No doubt, both the railway company and Ms Hind were insured so, in truth, this was a battle as to whose insurers should bear the loss?
The tree was some 150 years old and had originally had 3 stems but the northern stem had broken off years before and only the eastern and western stems remained when Ms Hind bought her property. It was claimed that the eastern stem, which was some 18 metres in height, was rotten and that Ms Hind should have appreciated that it was dangerous or, because it overhung the railway line, should have arranged for an expert arboriculturist to inspect the tree regularly to ensure it was safe.
Ms Hind was a primary school headmistress and a keen and knowledgeable gardener who had previously had some work undertaken to the tree but the base was covered in ivy and she was quite unaware that, rather unusually, the 2 remaining stems had pushed against each other causing a crack to develop where they forked and that decay had also spread from where the northern stem had broken off and the sapwood was exposed. The eastern stem had become rotten but only broke off in very stormy and exceptionally wintry conditions.
The Court was concerned at the way the Claimant’s expert had approached the case and by the allegations made against Ms Hind and also against her contractor who had done some work to the tree. The Claimant’s expert had had an informal conversation with Ms Hind when he first inspected what remained of the tree and he sought to rely on detailed notes prepared later as to what he claimed she had said. These notes were inaccurate and placed misleading emphasis on certain points and had not been copied to Ms Hind at the time and the Court held that experts should not embark on fact-finding exercises of this nature. Witness evidence should be dealt with by solicitors.
The Court made clear that the law simply requires a landowner to act reasonably and prudently and this normally involves carrying out informal inspections on a regular basis and only arranging for fuller advice where a potential problem is revealed. There is no duty to act where there is no apparent problem or danger.
The Court held that Ms Hind had limited resources and no obligation to have the tree regularly inspected by an arboriculturist just because it was by a railway line. She was a keen gardener and had sufficient knowledge and experience to inspect it herself and she had done so and she had spent considerable sums on tree surgery in her garden where she thought it appropriate. There was nothing to put her on alert that the eastern stem was dangerous as the tree appeared healthy and she was not obliged to seek to inspect the trunk through all the ivy and nettles that surrounded it.
The Court also found that Ms Hind’s tree contractor was not at fault. He was not an arboriculturist and he was only employed to carry out specific work and not to inspect the tree. He owed no duty of care to the Claimant as his involvement had nothing to do with the safety of those using the railway. In any event, he had no reason to suspect anything was wrong and even an expert arboriculturist may well not have discovered the problem.
So the claim failed resoundingly.
- A landowner’s duty of care depends on the extent of the landowner’s resources.
- A landowner should act reasonably and prudently.
- A landowner should regularly inspect trees and obtain expert advice if there may be a potential problem.
- But, a landowner is not an insurer of nature and accidents do happen with no one being at fault.