Treeing off! How to mitigate liability for claims against sports clubs and grounds relating to fallen trees
Published 11 April 2017 By: Jack Harris
There are usually numerous trees on every golf course, particularly where the golf course borders neighbouring roads and buildings. Most outdoor sports pitches also contain numerous trees. Storm Doris in February 2017 and the recent windy weather should have highlighted to golf clubs and sports clubs that the trees on their land are capable of falling down and thereby injuring those nearby (competitors, spectators, neighbours etc…) and their property (cars, buildings etc…). Thus falling trees give rise to a major risk of public liability for golf and sports clubs and their owners. This area of law is poorly understood and many clubs are badly informed as to their legal responsibilities.
This article outlines the key components of a typical claim against a tree owner and provides some practical advice to golf and sports clubs as to the steps they can take now to protect against such claims in advance. Specifically, it looks at,
- The relevant law (the cause of action)
- Which trees should be inspected?
- When should an inspection be undertaken?
- Who should undertake the inspection?
- What should the inspector look out for?
- Practical tips of gold and sports clubs
The relevant law
Claims against the owners of falling trees are typically framed in negligence and nuisance. In the present context these two causes of action are identical. Importantly, both are fault based. Since Noble v Harrison, it has been settled law that a tree owner will not be strictly liable for damage caused by their falling trees. All tree owners have a common law duty to act in the manner “to be expected from a reasonable and prudent landowner” (Caminer v Northern Investment Trust Ltd). Because the hazard posed by trees will generally be regarded as a “natural nuisance”, tree owners will usually owe the “measured duty of care” of Leakey v National Trust: thus tree owners’ resources will be relevant in deciding what was reasonably required of them (Stagecoach South Western Trains Ltd v Hind). A successful claim against a tree owner is almost always based upon the following reasoning:
- the tree was suffering from a pre-existing problem (i.e. a disease or structural weakness);
- this problem was visible upon reasonable inspection of the tree;
- a “reasonable and prudent landowner” should have carried out or arranged for someone else to carry out an inspection of the tree, but failed to do so; and
- had such an inspection occurred, the problem would have been spotted and, either immediately or after consultation with an arboriculturalist, felled safely.
Conversely, the easiest way to avoid a finding of liability is to establish that the problem, which caused the tree or branch to fall, would not have been visible at the time of the last pre-accident inspection.
It is thus vital that sports clubs and golf clubs arrange for the periodic inspection of the trees on their land - and keep documentary records of these inspections. Regrettably, however, the law is unclear as to what exactly such inspections should entail.
Which trees to inspect?
Golf and sports clubs should seek to inspect all trees, which give rise to a reasonably foreseeable risk of third party injury or damage. But for large scale landowners (such as golf clubs), this will inevitable pose practical difficulties. Where a club owns a significant landholding, a reasonable system of inspection will prioritize the inspection of the trees giving rise to the greatest risk; specifically those which border areas where spectators or competitors congregate, third party land and buildings and public utilities, such as roads or railway lines (see Micklewright v Surrey County Council).
When to inspect?
The case law specifies that inspections should be “regular” (Stagecoach), but there is little uniformity as to what this means in practice. The experts in Micklewright agreed that inspection every 1 to 2 years was reasonable. In principle, this issue is fact specific and will turn on the evidence. A good starting point is the Forestry Commission’s guidebook “Hazards from Trees”. This advises that:
- large older trees are more likely to be susceptible to rapid deterioration and an annual inspection of such trees is advisable;
- landowners should carry out additional one-off inspections after any period of severe weather; and
- the best time for an inspection is at the beginning of the autumn, when any discolouration or poor growth in a tree’s foliage and/or the presence of any decay fungus will be most readily visible.
Who should inspect?
Much of the case law has concerned itself with the question of whether the periodic inspection should be carried out by a lay person, a lower level qualified professional or an expert arboriculturalist. The significant majority of the case law suggests that an expert arboriculturalist need not be engaged. Indeed in Lambourn v London Brick Co Ltd, Finnemore J held that:
“the standard to be taken should be that of an ordinary landowner and not an expert” and, moreover, “It was neither the duty nor the practice of the ordinary prudent landowner to make a meticulous examination of its individual trees.”
The matter is complicated, however, by the sole House of Lords’ decision in this area: Caminer v Northern Investment Trust Ltd. This is commonly understood to have decided that the defendant landowner had been required to engage an expert arboriculturalist to inspect the tree in question. In reality, though, the position is more complicated with the five judges having relied upon different reasoning: Lord Oaksey held that an expert was required, although what he meant by “expert” is unclear; Lord Radcliffe also suggested that an expert was required, albeit very tentatively; Lord Porter’s judgment appears to suggest that an expert would not normally be required, but was required in that particular case because the tree in question had had a very large crown and had stood adjacent to a highway; Lord Reid by contrast held that an inspection by a tree owner “having a countryman’s general knowledge about” trees, and not by an expert, was sufficient; and Lord Normand held similarly that an initial inspection by a prudent landowner “with some degree of knowledge … which must necessarily fall short of the knowledge possessed by scientific arboriculturists” was sufficient.
- in that case the defendant was a limited company and thus had been obliged to engage a third party agent to discharge its duty; and
- the tree in that case had been a large elm and regarded as particularly prone to disease and instability.
Given the above, the position of golf sports and sports clubs is uncertain. Most will be limited companies or unincorporated associations. Thus they will be obliged to engage some kind of third party to discharge their legal duty to inspect. The significant majority of the case law suggests that the engagement of a lay person or lower level professional with a good working knowledge of trees and their vulnerabilities, but falling short of being an expert arboriculturalist, will be sufficient. This limited level of capability is commonly referred to as that of a “level two inspector” (for instance, in Poll v Viscount Asquith). But there is a limited risk that a court will follow the decision of the majority in Caminer and find that the engagement of an expert arboriculturalist is required. The financial resources available to a golf club or sports club will be a relevant factor here. The number of trees to be inspected, their age, inherent vulnerabilities and proximity to public amenities, such as roads, will probably be relevant too. The safest course is for golf clubs and sports clubs with sufficient funds to do so to engage an arboriculturalist so as to avoid any doubt on the issue.
What should the inspector look out for?
The inspector should look out for any sign that a tree may be in poor health or structurally unsound. Coulson J in Stagecoach described such signs as “triggers”. A comprehensive list of potential “triggers” is plainly not possible. The following have featured in the case law:
- Signs of disease, advanced age, disproportion of crown to stem, rising roots and rot (Caminer).
- A crown defect, sign of dead or failing branches or other growth (Poll).
- Discoloured bark, discoloured leaves during the summer months, external fungal fruiting bodies and dead leaves (Micklewright).
- The presence of deadwood, fungal growth and an unhealthy crown without full leaf (Stagecoach).
For those seeking to bring or defend a legal claim, early photographs are key. It is much easier to prove that a tree had a pre-existing “trigger”, if this “trigger” can be shown clearly to exist in photographs of the fallen tree. Ideally these photographs should be taken within a month or so of the accident. If photographs are taken after this, the defendant tree owner may well argue that the “trigger” (for instance, a fungal bracket) became present only after the accident had occurred. In the absence of early photographs, claimants are usually reliant upon expert opinion about what the tree would have looked like prior to the accident – a much weaker evidential position.
Practical tips for golf clubs
- Sports clubs and golf clubs should ensure that their trees are regularly inspected.
- Inspections should prioritize trees near areas where spectators and competitors congregate, neighbouring land, buildings, roads and railways.
- The results of inspections should be documented.
- A regular annual inspection in or about early autumn should be sufficient in most cases.
- Further one-off inspections should be made after any spell of severe weather.
- A person with, at the very least, a good working knowledge of trees and their vulnerabilities should carry out the inspections.
- But sports and golf clubs should strongly consider engaging an arboriculturalist to carry out the inspections instead.
- After a tree or branch falls, the sports or golf club should take lots of photographs of the fallen tree and any part of the tree remaining in situ as soon as possible.
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Jack joined 2TG in 2006, having successfully completed pupillage. Before coming to the Bar, Jack worked as a management consultant, where he worked principally with retail and public sector clients.