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Micklewright v Surrey County Council, Court of Appeal, 28 July 2011

28 July 2011
The issues

Liability of local authority for death caused by failure of large branch of a highway tree (a massive oak tree adjacent to a roadside lay-by). Foreseeability of failure. Would a reasonable inspection regime have revealed actionable defects in the branch that ultimately failed?

The facts

Claim concerned a tragic fatal accident, in which the Deceased (Mr Imison) was killed when a large oak branch fell on him as he went to remove the family bicycles from his vehicle whilst parked in a designated parking place adjacent to Windsor Great Park. The Defendant Council accepted responsibility for the tree in question as a “highway tree” and the judge at first instance (HHJ Reid QC) held that there was an inadequate system of inspection in place as regards the tree in question. The main live issue was as to what would have transpired had an adequate inspection regime been in place. The CA (Mummery LJ, Patten LJ and Hedley J) agreed that the questions that the court needed to consider were (i) what sort of inspection would have been required; (ii) what it would have revealed if carried out and (iii) would that inspection have led to removal of the offending branch prior to the date of the accident.

The decision

It was open to the trial judge on the evidence before him to have reached the conclusion that the material defect would not have been revealed upon reasonable inspection, such that the claim failed and the appeal was dismissed. The CA (Hedley J gave the judgment which was agreed by his brother judges) cited and approved paragraph 18 of the first instance judgment as an “impeccable direction”.

It read as follows: “It does not follow that because an owner or occupier fails in his duty to make the necessary inspections of his trees that he will automatically be liable if someone is injured by one of them. It may be the tree was suffering from a defect that would not be revealed by inspection. Thus in Caminer v Northern & London IT [1951] AC 88 at 103 Lord Normand observed that the defendants did not comply with their duty but “it is no less plain that, if they had, it would have made no difference. The tree was just such a tree as [the expert witness] says the owner must consider safe.” It is necessary for the Claimant to show that if the owner or occupier had complied with his duty on the balance of probability the defect or danger in the tree would have been noticed. It is important when considering whether the owner or occupier has complied with his duty to avoid using the benefit of hindsight.”

The CA also reminded themselves that it is proper that any appellate court should bear in mind when considering an appeal on essentially factual grounds the words of Lord Hoffman in Piglowska [1999] 1 WLR 1360 (HL) at 1372, as regards the caution which is required when dealing with the factual findings of a trial judge.

Comments

A victory for commonsense. The trial judge effectively preferred the Defendant’s lay and expert witness evidence to that of the Claimant, and held that the internal decay in the tree could not have been discovered upon reasonable inspection, and he was upheld by the CA.

Angus Piper, 1 Chancery Lane

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