Jamie Alexander Yates v National Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 10 February 2014 |
| Neutral Citation | [2014] EWHC 222 (QB) |
| Docket Number | Case No: HQ11X03476 |
| Court | Queen's Bench Division |
| Date | 10 February 2014 |
[2014] EWHC 222 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: HQ11X03476
Christopher Wilson-Smith and Matthew Phillips (instructed by Stewarts Law LLP) for the Claimant
William Norris QC and Judith Ayling (instructed by Berrymans Lace Mawer) for the Defendant
Hearing dates: 9 th December 13 th December 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Morden Hall Park in Surrey is one of the properties owned by the National Trust ('NT'). Morden Lodge is in the south west corner of the Park. It is occupied by private tenants and the public do not have access to it, but the gardens of the Lodge are managed by the NT. In February 2009 the NT's gardener, Alan Green, carried out a Visual Tree Assessment ('VTA') of the trees in the garden of the Lodge. Not far from both the Lodge itself and from the River Wandle, which flows through the gardens of the Lodge, was a horse chestnut tree that was described as suffering from extensive bleeding canker and honey fungus. The VTA said that it should be felled within the following 6 months. The warden of Morden Hall Park was Chris Heels. For some 2 1/2 years, Mr Heels had made use of a tree surgeon, or arborist, called Joe Jackman. On Tuesday 1 st December 2009 Mr Heels contracted with Mr Jackman to undertake several days of work in Morden Hall Park. On Wednesday 2 nd December Mr Heels showed Mr Jackman the horse chestnut tree, and said it needed to be taken down. They agreed that two days should be allowed for this particular job. Mr Jackman had worked with a team of others when previously employed at Morden Hall Park and he worked with others at the beginning of this week in December. On Thursday 3 rd December he telephoned Mr Heels and said that he would not be available the next day, but other members of his team would be there and would start work on the horse chestnut tree.
On Friday 4 th December three members of Joe Jackman's team arrived. They were the Claimant, who was then 22, Scott Ralston and Oliver Mackrell. The Claimant climbed the tree using a rope and harness and began to cut off the branches of the tree with a chain saw. Joe Jackman had told them they were to fell the tree sectionally. This involved first cutting off the limbs of the tree which were dropped to the ground and then, when that was done, cutting the main trunk in sections. Mr Ralston and Mr Mackrell remained on the ground and fed the branches into a wood chipper. The tree was about 23 metres high. The Claimant had been working for about 1 — 1 1/2 hours and was probably about 50 feet up when he fell to the ground. He has no memory of what caused him to fall and neither Mr Ralston nor Mr Mackrell was looking in his direction at the time. When Mr Mackrell got to the Claimant he was tangled in his rope and Mr Mackrell said he cut the rope with secateurs in two or three places to free him. An ambulance arrived shortly afterwards and the paramedics cut the Claimant out of his harness.
The consequences for the Claimant have been severe. He suffered a fracture dislocation at T10/T11 with a complete spinal cord injury. This has rendered him permanently paraplegic. He has sued the NT in negligence and the Work at height Regulations 2005 and this is the judgment of the preliminary issue which was tried to determine whether the NT is liable for his loss.
Evidence
The Claimant gave evidence in support of his claim and he also called Mr Ralston and Mr Mackrell. Although he served a witness statement from Mr Jackman, the Claimant chose not to call him (nor, for that matter, did the Defendant). Accordingly, I have disregarded the statements made by Mr Jackman save where there is other admissible evidence as to what he said or did. The Claimant also relied on the expert evidence of Mr Tony Lane.
The Defendant called Mr Heels, Zoe Colbeck (the Property Manager for Morden Hall Park), Fred Moughton (the NT's Health and Safety Officer for the South of England), Richard Owen (Insurance Manager for the NT), Louisa Craven (Risk and Assurance Director of the NT), Stephen Wheeler (Senior Health and Safety Officer within the NT's Heath and Safety Team), and PS Washington, PCSO James Lewis and PC Simon Wallace (who attended after the Claimant's accident). The following witness statements were also adduced by the Defendant without the need for the makers to be called: paramedics Richard Clements, Nathan Ward, Richard Cutbill and Dean Bateman. The Defendant relied on the expert evidence of Roy Finch. The two experts met and produced a report of the matters on which they agreed and disagreed.
As well as the pleadings, there were two bundles of trial documents and a further bundle of photographs. A fifth bundle was of documents collected by the London Borough of Merton ('Merton'). Its Environmental Health Department caused summonses to be issued against Joe Jackman and the NT because of the Claimant's accident. Merton did not proceed with these prosecutions. I have taken into account the statements which Merton took from the Claimant, Mr Ralston and Mr Mackrell (but not the statement taken from Mr Jackman) and also the interview which Merton conducted with Mr Heels. I have also considered emails which give details of the National Proficiency Tests Council ('NPTC') certificates held by Mr Jackman, Mr Ralston and Mr Mackrell. The Merton file also included reports by Mr Bradley (Merton's investigating officer) and Liam McKeown (a consultant arborist instructed by Merton). The Defendant objected to the admissibility of these reports and the Claimant chose not to contest the matter. I have disregarded them.
I had written opening notes from both sides. In theirs, the Defendant suggested that a view would be useful. I was sceptical. In August 2010 the horse chestnut tree was taken down by another firm of tree surgeons, Wimbledon Tree Surgeons, and I was doubtful as to what I would be able to glean from an inspection of the site. The Defendant did not press the matter. No view was held.
After the evidence was completed on Friday 13 th December 2013 there was no time for oral closing submissions. I received detailed written submissions from both the Claimant and Defendant and a further round of submissions in reply from each. I am grateful to the parties for all of these and I have taken into account all that they have submitted.
Relationship between the Defendant and Joe Jackman
Morden Hall Park had a large number of trees and the NT had fairly regular need for tree surgeons. Chris Heels had worked at Morden Hall Park since 2001. He was himself qualified to use a chain saw to cut up timber on the ground. He also held NPTC certificates CS31 and CS32 which covered the felling of small and medium trees. He had attended a course on conducting tree inspections for 1 day in 2001 and he did another, 4 day, course on tree safety management in 2008. He did not have certificates which would qualify him to climb trees and operate a chain saw. He brought in outside contractors to do this and sometimes other types of work on the trees and had been doing so since 2001. In 2006/2007 he wished to replace one of their two current contractors. At that time the tenant of Morden Lodge, Ben Gordon, was arranging and paying for the work on the trees in the garden of the Lodge. He was using Joe Jackman who was the partner of Mr Gordon's niece. Mr Gordon verbally recommended Mr Jackman. Zoe Colbeck suggested to Mr Heels that he should watch Mr Jackman at work and see whether he seemed competent.
In April 2007, Mr Heels watched Mr Jackman for about 10 minutes or so. Mr Jackman was climbing trees and there were two other people with him. Mr Heels does not claim to be an expert in tree climbing, but, on the basis of his experience of dealing with other arborists, he was satisfied with Mr Jackman's work and decided to get some quotes from him. The quotes were satisfactory and the NT first contracted with Mr Jackman in May 2007. Mr Heels and Ms Colbeck watched Mr Jackman and his men carry out that work and were again satisfied with it.
Prior to Mr Jackman starting that first assignment, Mr Heels asked him for evidence of his Public Liability Insurance cover. The certificate of insurance dated 2 nd May 2007 names 'Mr J Jackman' as the policy holder. From the beginning, it seems, Mr Jackman had a team of men working with him. It was the Claimant's case that this was insufficient to demonstrate that the Public Liability cover extended to the other members of Mr Jackman's team. I will return to consider that argument later and what, if any, significance it would have if correct. Here, I shall focus on the evidence. In cross examination, Mr Heels said that Mr Jackman had assured him that the men who were working with him did have Public Liability cover, but that was a matter between Mr Jackman and his men, rather than an issue with which the NT needed to be concerned. I do not think it more likely than not that Mr Jackman gave Mr Heels the express assurance that his men were covered by Public Liability Insurance. In his interview with Merton, Mr Heels said, in effect, that the insurance position as between Joe Jackman and his men was a matter for them. Had Mr Jackman given an express assurance, I would have expected it to have been mentioned by Mr Heels in the course of this interview which took place on 1 st December 2011.
Mr Heels was also asked about the inquiries that he made concerning the NPTC certificates held by Mr Jackman. He said he had seen Mr Jackman's card — a document which summarises...
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