Cavanagh V Witley Parish Council - A case of rough justice?

[daltontrees]

The appeal was only challenge to the judge’s findings of fact and evaluation of the evidence. It was not a challenge to whether the right witnesses had been called or whether the sides had argued their cases better or worse than the other. I've been involved in a few cases where one side has failed to pick up on points or to present the right evidence and has lost the case partly (or wholly) as a result. You get what you pay for. I can't be bothered getting into the minutae of the evidence, it's water under the bridge now.

 

The useful bit about the appeal is that it was taken as read that the original judge had applied the correct legal principles of tree owner's duty of care for negligence cases. These were quoted from the Stagecoach case as - 

 

(a) The owner of a tree owes a duty to act as a reasonable and prudent landowner;
(b) Such a duty must not amount to an unreasonable burden or force the landowner to act as the insurer of nature. But he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes;
(c) A reasonable and prudent landowner should carry out preliminary/informal inspections or observations on a regular basis;
(d) In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists. This will usually be because preliminary/informal inspections or observations have revealed a potential problem, although it could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections. A general approach that requires a close/formal inspection only if there is some form of ‘trigger’ is also in accordance with the published guidance referred to in paragraphs 53-55 above.
(e) The resources available to the householder may have a relevance to the way in which the duty is discharged.

 

The mention of 'insurer of nature' is useful. That's the bit where you don't ahve to foresee harm or damage in freak weather conditions. I was involved in a thread on here a few months ago in which this was discussed, and I had reached the conclusion that a good defensible position was to adopt the design wind speeds that building designers adopt for sites, from BS 6399-2: 1997 Loading for buildings — Part 2: Code of practice for wind loads.

 

It's really important in a risk survey report to let a client know the limitations of the assessment, and the best way to do that in my opinion is to express the 'insurer of nature' limitation in a suitable form of words. This is not to cover the consultants a&$£ but to cover the client's, and spare him the expense of unnecessary risk reduction works. And it's slightly different to saying freak weather risks can't be quantified, it's saying they don't need to be.

Edited May 18, 2020 by daltontrees

[Stubby]

7 hours ago, Khriss said:

Basically @Jon Heuch  make sure there is a caveat in yr survey conditions stating storm force winds cannot be adequately quantified in yr Tree Risk assessment  ( which is why seat belts in cars are not tested in 100mph  crashes )  

 

K

Let me get this strait Khriss me old mucker .  Un quantified storm force winds are why seat belts are not tested at 100 mph ?

[Khriss]

@Stubby , no mate , its like an analogy ( not the ones that make you sneeze btw ) unusual or unexpected loading can cause anything to fail . K

Edited May 18, 2020 by Khriss
Julian put it better than I - but them he wasnt running thru a tunnel at the time - like I was :P

[fagus]

A long but interesting read, thanks contributors.