16 May 2022

The Remit of Responsibility for a Tree Falling on to a Public Highway

Shilpa Shah

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Shilpa Shah

There was no doubting that it was a “cruel combination of circumstances” when a cherry tree that had been growing on land immediately adjacent to a dual carriageway, suddenly fell directly onto Mr Hoyle’s car the exact moment he was driving past. Mr Hoyle sadly died at the scene.

A claim under the Fatal Accidents Act 1976 was brought against the Local Authority both as owners of the land upon which the tree had been growing and in their capacity as the Highways Authority responsible for maintenance of the carriageway. Their tree surveyor and individual arboriculturist were added as further defendants in the action.

It was agreed between the parties that the contributory factors causing the falling of the tree included asymmetrical root architecture and crown, wet ground conditions and wind. There was a dispute as to the degree of contribution of each of these factors, but it had been noted that the weather conditions on that day in June had been “unseasonably severe”.

The High Court analysed the common law duty of care and, in reiterating the principles in Witley Parish Council v Cavanagh [2018] EWCA Civ 2232, maintained that the duty of care on the owner of the tree required them “to act as a reasonable and prudent landowner”. This included an obligation to undertake regular inspections, but it emphasised that such duty “must not amount to an unreasonable burden or force the landowner to act as the insurer of nature”.

The landowner would have a duty to act where there is a danger which is apparent but, in applying the test of reasonableness, it was acknowledged that the “resources available … may have a relevance to the way in which the duty is discharged”.

The judge found that there was no evidence that the tree was structurally defective or that there were any visible signs indicating it was a risk or vulnerable to the elements and dismissed the claim against each Defendant.

Of note was a discussion on the remit of the duty under section 41 of the Highways Act 1980. The judge concluded that it was not likely to have applied in this case since the fallen tree was not “part of the fabric of the highway” and its presence on the road was transitory.

The case against the tree surveyors was dismissed on findings that the work had been conducted with such care as was reasonable and that it was not established that no reasonable body of competent professional tree inspectors would have come to the same conclusions, applying the Bolam principles.

Although the facts in this case led the court to conclude that this was a tragic accident in which no one was to blame, the case gave rise to some interesting discussions as to the scope of the common law duty of care owed to passing motorists arising out of danger posed by trees adjacent to a highway.

In particular, it was clear that, in appropriate circumstances, there may well be a duty of care owed by a reporting surveyor to users of the highway, even though the contractual instruction for the report was confined between the Defendants.

The essence of the duty of care required a consideration of whether there was sufficient proximity between the parties.  There is a careful balance to be had in this regard and the court warned against requiring an overly “risk adverse” approach in these circumstances.  

Click here to read the judgment in Hoyle v Hampshire County Council [2022] EWHC 934 (QB).

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