Fallen Tree

Fallen Tree

Postby griff0509 » Mon Jul 27, 2015 11:26 am

A large portion of a horse chestnut tree near the boundary of my property recently fell into a neighbour's field, damaging his hedge and fence in the process. I have offered to pay for half the costs to clear the debris and make good any damages, but my neighbour says that I am liable for all the costs. Is this true?
My property has a number of mature trees, most of which are protected by TPOs. Since purchasing my property, I have gone to great lengths to ensure that the trees are safe, as many are near the property boundary. For example, the year before last, a limb from one of the trees fell into one of my fields and I subsequently had tree surgeons come and inspect all the trees and to carry out any works they deemed necessary (e.g. thin the canopy and remove limbs etc). All this work was sanctioned by the local borough council.
As I understand it, the key to determining liability is the issue of foreseeability. I would argue that I have discharged my duty of care to your neighbour and, relying on the opinion of the tree surgeon, did not have actual or constructive knowledge of any defect in the tree. In the absence of foreseeability I do not think that I have any liability to the neighbour. Is this correct?
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Re: Fallen Tree

Postby MacadamB53 » Mon Jul 27, 2015 12:54 pm

Hi griff,

In the absence of foreseeability I do not think that I have any liability to the neighbour. Is this correct?

that is correct.

A large portion of a horse chestnut tree near the boundary of my property recently fell into a neighbour's field

you've not mentioned what the cause was - you'd need to establish the cause before you can say there was an absence of foreseeability.

Kind regards, Mac
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Re: Fallen Tree

Postby Roblewis » Mon Jul 27, 2015 2:52 pm

nothingtodowithme wrote:Your neighbour is entitled by law to seek the full cost of damages to his/her property.


But only if the failure was foreseeable. It seems OP had taken some wise advice from a tree specialist and the courts are likely to use the fiction of an act of god. I think the OP has been pretty fair and the age of the fences need to be taken into account.
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Re: Fallen Tree

Postby ukmicky » Mon Jul 27, 2015 5:40 pm

nothingtodowithme wrote:Your neighbour is entitled by law to seek the full cost of damages to his/her property.



You always have to read between ,above and below the lines with posts by NTDWM


Entitlement to seek full cost of the damages is as NTDWM says a right ,however being entitled to actually gain damages is another story .

One should always be aware that should someone seek to gain financal redress in the courts and the court finds they are not entitled to any damages, they could end up paying the defendants costs.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Fallen Tree

Postby Collaborate » Mon Jul 27, 2015 5:58 pm

nothingtodowithme wrote:Your neighbour is entitled by law to seek the full cost of damages to his/her property.


Do you plan on backing that up with anything authoritative?
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Re: Fallen Tree

Postby mr sheen » Mon Jul 27, 2015 6:06 pm

When someone suffers damages, someone has to pay.
The person suffering damage had no control over the situation, only the tree owner has control so the person suffering is likely to claim off the tree owner. The tree owner should pass the claim onto their insurance company. The person suffering damages is likely to sue for recovery of all damages and may well be successful unless the tree owner can prove that the tree was in good health and that an 'act of god' such as a severe storm brought the tree down.

So OP should pass claim onto his/her insurance company if they don't want to cough up in full. Neighbour could claim on his own insurance but his insurance company will seek to recover from tree owners insurance and will obviously cover all losses and claim back all losses.
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Re: Fallen Tree

Postby Collaborate » Mon Jul 27, 2015 10:57 pm

mr sheen wrote:When someone suffers damages, someone has to pay.
The person suffering damage had no control over the situation, only the tree owner has control so the person suffering is likely to claim off the tree owner. The tree owner should pass the claim onto their insurance company. The person suffering damages is likely to sue for recovery of all damages and may well be successful unless the tree owner can prove that the tree was in good health and that an 'act of god' such as a severe storm brought the tree down.



I don't agree with this assessment.

The question is whether or not adequate care was taken to assess the condition of the tree.

See this thread:
viewtopic.php?f=2&t=19915

And this advice by Aviva: http://www.aviva.co.uk/risksolutions/do ... _trees.pdf

Just beca damage occurs doesn't mean to say compensation becomes automatically payable. There is no strict liability.
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Re: Fallen Tree

Postby ukmicky » Mon Jul 27, 2015 11:22 pm

What is adequate for a council is also well beyond what is required by a normal householder.

The below discussion I think covers the OPs question.


viewtopic.php?f=2&t=19202&p=183661#p183661
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Re: Fallen Tree

Postby Collaborate » Mon Jul 27, 2015 11:42 pm

ukmicky wrote:What is adequate for a council is also well beyond what is required by a normal householder.

The below discussion I think covers the OPs question.


viewtopic.php?f=2&t=19202&p=183661#p183661


The Stagecoach v Hind case ( http://www.bailii.org/ew/cases/EWHC/TCC/2014/1891.html ) paras 56 -68 is required reading for those more interested in legal liability (esp NTDWM).

Thanks for the link ukmicky.
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Re: Fallen Tree

Postby ukmicky » Tue Jul 28, 2015 1:32 am

The omission is telling. I can see no basis in the authorities for the proposition that a reasonable and prudent landowner is obliged, as a matter of course and without any trigger or warning sign, to pay for an arboriculturalist to carry out periodic inspections of the trees on his or her land. In my view, that is coming far to close to making the landowner an insurer of nature. It is contrary to the principles of law that I have summarised above. It is contrary to the approach of the Court of Appeal in Micklewright (and the first instance cases referred to in paragraph 66 above, and the note in Charlesworth and Percy), which all proceed on the basis that a closer inspection by an expert was only required where something was revealed by the informal or preliminary inspection which gave rise to a cause for concern



The above quote from the case basically sums up what your normal householders responsibilities are
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Re: Fallen Tree

Postby mr sheen » Tue Jul 28, 2015 9:33 am

Collaborate wrote:
mr sheen wrote:When someone suffers damages, someone has to pay.
The person suffering damage had no control over the situation, only the tree owner has control so the person suffering is likely to claim off the tree owner. The tree owner should pass the claim onto their insurance company. The person suffering damages is likely to sue for recovery of all damages and may well be successful unless the tree owner can prove that the tree was in good health and that an 'act of god' such as a severe storm brought the tree down.



I don't agree with this assessment.

The question is whether or not adequate care was taken to assess the condition of the tree.

See this thread:
viewtopic.php?f=2&t=19915

And this advice by Aviva: http://www.aviva.co.uk/risksolutions/do ... _trees.pdf

Just beca damage occurs doesn't mean to say compensation becomes automatically payable. There is no strict liability.


An owner is generally responsible for any damage caused by their trees, as indicated in the first paragraph of your link. Whilst there is no strict liability, the owner will generally be liable but can seek to prove that they took steps to reduce risks and hence that they were not negligent.

Foreseeability....Trees overhanging neighbouring land means that it is foreseeable that the neighbour's land may be damaged by a falling branch.

Negligence. An owner can try to indicate that they were not negligent by showing that they did all that they could to reduce the risk their trees by carrying out risk assessments and having the trees surveyed and assessed by qualified professionals and acting upon their advice.

If an issue went to court, the Judge would consider the actions taken by the owner in order to determine if the owner was negligent in any way. If the owner has documentation to show that they carried out risk assessments and surveys and took appropriate action, they may well be considered to have taken all precautions to avoid risk to others and their property. If not, the judge may find them negligent and whilst counsel may argue that the requirement for individual owners may be less than organisations, the Judge will decide that in each case and the size of the house, garden, country estate etc will be considered.

So unless you can show risk assessments, surveys etc., or prove the tree was in good health or that there was a severe storm...one will probably have to cough up for damage caused by trees and in most cases people you would pass the claim to insurers who would assess the evidence you have and decide whether to defend the case or not. If you do have risk assessments, tree surveys and receipts to prove all actions advised were carried out in a timely fashion and the tree in question was considered to be low risk....you may not have to pay for all the damages...a chance you would have to take but if you haven't made a reasonable offer and force the claimant to go to court, the court may make you pay costs.

So OP has a number of choices once the evidence has been reviewed
Pay up in full
Negotiate with neighbour for a reasonable conclusion and if this isn't reached take a chance on court.
Pass claim to insurance company
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Re: Fallen Tree

Postby arborlad » Tue Jul 28, 2015 11:28 am

mr sheen wrote:Foreseeability....Trees overhanging neighbouring land means that it is foreseeable that the neighbour's land may be damaged by a falling branch.



The overhang, of itself, is not sufficient to foresee damage occurring, other factors have to be considered.

It could lead to the unnecessary removal of a lot of branches or trees.

Do you know why or at whose request this thread was locked? viewtopic.php?f=2&t=20013
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Re: Fallen Tree

Postby mr sheen » Tue Jul 28, 2015 12:41 pm

arborlad wrote:
Do you know why or at whose request this thread was locked? viewtopic.php?f=2&t=20013


No idea. Not mine.
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Re: Fallen Tree

Postby Roblewis » Tue Jul 28, 2015 1:32 pm

Unlike H&S law where the burden of proof lies with the defendant to show he had done all that was reasonably practicable, this case will follow normal legal process where the plaintiff will need to show that the defendant, ie the OP, has not done that which was reasonably practicable. In such cases as this the degree of practicability will also rely heavily upon the presumed level of knowledge and competence of the defendant. Thus estate owners will face a higher duty than the man in the Clapham omnibus - a well established legal principle.
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Re: Fallen Tree

Postby Collaborate » Tue Jul 28, 2015 1:33 pm

mr sheen wrote:
An owner is generally responsible for any damage caused by their trees, as indicated in the first paragraph of your link. Whilst there is no strict liability, the owner will generally be liable but can seek to prove that they took steps to reduce risks and hence that they were not negligent.

Foreseeability....Trees overhanging neighbouring land means that it is foreseeable that the neighbour's land may be damaged by a falling branch.

Negligence. An owner can try to indicate that they were not negligent by showing that they did all that they could to reduce the risk their trees by carrying out risk assessments and having the trees surveyed and assessed by qualified professionals and acting upon their advice.

If an issue went to court, the Judge would consider the actions taken by the owner in order to determine if the owner was negligent in any way. If the owner has documentation to show that they carried out risk assessments and surveys and took appropriate action, they may well be considered to have taken all precautions to avoid risk to others and their property. If not, the judge may find them negligent and whilst counsel may argue that the requirement for individual owners may be less than organisations, the Judge will decide that in each case and the size of the house, garden, country estate etc will be considered.

So unless you can show risk assessments, surveys etc., or prove the tree was in good health or that there was a severe storm...one will probably have to cough up for damage caused by trees and in most cases people you would pass the claim to insurers who would assess the evidence you have and decide whether to defend the case or not. If you do have risk assessments, tree surveys and receipts to prove all actions advised were carried out in a timely fashion and the tree in question was considered to be low risk....you may not have to pay for all the damages...a chance you would have to take but if you haven't made a reasonable offer and force the claimant to go to court, the court may make you pay costs.

So OP has a number of choices once the evidence has been reviewed
Pay up in full
Negotiate with neighbour for a reasonable conclusion and if this isn't reached take a chance on court.
Pass claim to insurance company


This analysis completely disregards the caselaw quoted earlier in this thread. Fortunately for the OP, any judge hearing a misguided application brought by the neighbours would be required to follow the Court of Appeal authorities referred to from para 56 onwards of the judgment.

For those unfamiliar with our legal system, the following paragraph taken from https://en.wikipedia.org/wiki/English_law#Precedent sums it up nicely.

Precedent
One of the major challenges in the early centuries was to produce a system that was certain in its operation and predictable in its outcomes. Too many judges were either partial or incompetent, acquiring their positions only by virtue of their rank in society. Thus, a standardised procedure slowly emerged, based on a system termed stare decisis which basically means "let the decision stand". The doctrine of precedent which requires similar cases to be adjudicated in a like manner, falls under the principle of stare decisis. Thus, the ratio decidendi (reason for decision) of each case will bind future cases on the same generic set of facts both horizontally and vertically in the court structure. The highest appellate court in the UK is the Supreme Court of the United Kingdom and its decisions are binding on every other court in the hierarchy which are obliged to apply its rulings as the law of the land. The Court of Appeal binds the lower courts, and so on.
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