Mr Michael Hoyle (Suing as the Administrator of the Estate of his Late Son Mr. David Hoyle) v Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | Kirsty Brimelow |
| Judgment Date | 19 April 2022 |
| Neutral Citation | [2022] EWHC 934 (QB) |
| Docket Number | Case No: QB-2020-001625 |
| Court | Queen's Bench Division |
[2022] EWHC 934 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Kirsty Brimelow QC
(sitting as a Deputy High Court Judge)
Case No: QB-2020-001625
Mr. Ben Davies (instructed by Admiral Law Solicitors) for the Claimants
Mr. Geoffrey Weddell (instructed by Hampshire County Council Legal Practice) for the First Defendant
Ms. Catherine Peck (instructed by Horwich Farrelly Solicitors) for the Third and Fourth Defendants
Hearing dates: 25 January, 26 January, 27 January, 28 January 2022
Written submissions 8 February 2022
APPROVED JUDGMENT
This judgment was handed down remotely by circulation to the parties' representatives by email and release to Bailii. The date for hand-down is deemed to be on 19 April 2022.
Kirsty Brimelow QC:
Introduction
On 6 June 2017 at approximately 7.15am Mr David Hoyle was driving his car, a Citroen Xsara, west on the A287 between Ewshot and Rye Common, Hampshire when a cherry tree growing immediately adjacent to the road fell onto the car causing Mr David Hoyle fatal injuries. He was pronounced dead at the scene. Mr. Hoyle was 44 years old, and he left dependents namely his wife and three children as well as other immediate family. This claim is brought by Michael Hoyle, David Hoyle's father on behalf of his son's estate. On any view this was a tragic event.
The Claimant brings a claim under the Fatal Accidents Act 1976 for damages arising from the road traffic accident on 6 June 2017. By an order made on 30 March 2021 Master Thornett directed that the issue of liability be tried before that of quantum. This trial therefore is of the issue of liability only.
It is common ground that the cherry tree (tree 572) grew on land belonging to the first defendant Hampshire County Council (HCC) which also acted as the highway authority for the roadside land on which the tree stood. It was their responsibility and so they owed a duty of care to act as a reasonable and prudent landowner, which included acting to avoid apparent danger and with a duty to undertake regular inspections. There is no dispute between the parties that a checking frequency of about once every three years by a trained arboriculturist was appropriate for the location and that the regime in place by HCC exceeded this.
Tree 572 was a maturing to mature wild cherry (prunus avium), about 60 years old with a trunk diameter of about 50cm. There was evidence that it could have lived to 120 years old. It was about 15–20 metres in height with a crown spread of 10 – 15 metres. The centre of the tree was about 6.5 metres from the centre of the white line defining the edge of the road. It was growing beside an historic drainage ditch which was located just to the south of the trunk. This was the tension side of the tree. The side towards the road which was the direction of the lean is the compression side. The ditch was about 30–50 cm deep (shallower than originally pleaded by the Claimant) and generally less than 1 metre wide. The ditch was in clay soil that is poorly draining.
The third defendant is Simon P Holmes Limited trading as Tree Surveys (Tree Surveys/third defendant) a company specialising in arboricultural service which acted as a subcontractor for tree survey works commissioned by HCC in February 2016 and in turn, in April 2016 sub-contracted Ed Power (Mr. Power/fourth defendant) an arboriculturist, to undertake the survey work. As originally formulated a claim was also brought against Atkins, the council's service contractor (then the second defendant) but that claim was discontinued shortly after Atkins filed its defence.
Tree 572 was in normal health before the failure, but it had an asymmetrical crown and slight lean towards the road. The extent of the asymmetry and, at one point, the lean were disputed. The cause of the failure of tree 572 was not agreed save those contributory factors in the failure were agreed to be the asymmetrical root architecture, the asymmetrical crown, the wet/waterlogged ground conditions, and the wind.
In dispute was the extent of tree 572's asymmetrical root architecture and asymmetrical crown as well as absence or presence of structural roots. Also, in dispute was whether the asymmetry of the root spread was visibly obvious and whether work recommended by Mr. Power would likely have reduced the failure occurring when it did. Finally, there was dispute as to the appropriateness of Mr. Power's priority rating matrix score for tree 572.
Brief Summary of Claim and Defences
The Claimant's case rested entirely upon the evidence of the expert arboriculturist Mr. Jeremy Barrell, instructed by the Claimant, who considered that tree 572 had a severely imbalanced crown towards the road and an asymmetrical root system that had no significant structural roots extending to and beyond the ditch.
Mr. Barrell's opinion was that any competent tree inspector should have noticed the lack of any root buttresses directly facing the ditch which should have raised an alarm and led to further investigation. He considered the HCC priority matrix should have been 12/ 16 or 16/16, not 6/16 as scored by Mr. Power. Mr. Barrell also considered that if the works recommended by Mr. Power had been carried out before 6 June 2017, it is likely that tree 572 would not have failed.
It was not part of the Claimant's case that there was evidence of specific decay or cracks or cavities in relation to tree 572 but rather that it had failed because, whilst in full leaf and wet, it was unable to support its own weight because of the above. Mr. Barrell stated that there were no obvious signs of decline before the tree failed. He also considered that the weather conditions on the day of the accident may have been a secondary contributory factor.
Further, the Claimant relied upon and criticised an earlier survey of the trees that included tree 572, in February 2016, by arboriculturist and Professional Tree Inspector, David Soffe on behalf of HCC. The Claimant's case was that tree 572 would have been in the same condition as observed by Mr. Power and that works recommended by Mr. Power should have been recommended by Mr. Soffe. If he had done so, then these works would have been completed by HCC by September 2016 as works were scheduled to complete in 6 months and tree 572 would have been unlikely to have failed due to weight being lifted from the tree.
In addition, the Claimant alleged that there was need for urgent pruning, lopping or other work to reduce the size or weight of this tree and/or to highlight the extent to which the crown encroached upon the highway.
And so, in summary, the Claimant contends that the proximity of the base of Tree 572 to the historic ditch, the lack of any structural roots extending across, through or under the ditch, the asymmetry of the root structure and the potential for imbalance and failure ought to have been apparent to both David Soffe and/or Mr. Power during their tree inspections in February 2016 and November 2016.
In his Particulars of Claim, it was asserted that a number of statutes applied to HCC in this case, namely, section 3 of the Health and Safety at Work etc Act 1974, sections 41 and 154 of the Highways Act 1980 and section 2 of the Occupiers' Liability Act 1957. Further, reliance was put upon section 3 of the Health and Safety at Work etc Act 1974 as applying to Simon Holmes Ltd and Mr. Power and that all Defendants owed a common law duty of care to the Claimant.
However, by the time of trial, the Claimant abandoned reliance on statutory breaches other than in relation to alleged breaches of section 41 of the Highways Act 1980 (HA) against HCC as well as common law negligence against both HCC and Tree Surveys and Mr. Power, including, inter alia, a duty to take reasonable care to ensure that the health and safety of users of the dual carriageway, such as David Hoyle, was not endangered by overhanging, unstable and/or falling trees.
HCC accepted that it owed a common law duty of care to Mr. Hoyle to act as a reasonable and prudent landowner but denied that section 41 of the HA applied. HCC's case was that tree 572 was subject to a double regime of inspection by the Highways Department and the Countryside Department. It had been within drive by inspections of the Highways Department on 16 occasions in the 16 months prior to the accident. It also had been inspected on foot by two arboriculturists, namely David Soffe and Ed Power on 10 February 2016 and on 22 November 2016.
Mr. Soffe had not made any record of tree 572, meaning that it was not one of 15 trees where he had recommended action. The inference to be drawn was that Mr. Soffe did not observe any level of asymmetry to the roots which was likely to impact on the stability of the tree. Mr. Power had recorded that the lower crown was encroaching on the highway and that the tree had deadwood throughout its crown, that it was growing on a ditch embankment and that surface roots were visible. The defendants contended that these characteristics were entirely normal for cherry trees and Mr. Power's work recommendations were competent and reasonable. He recommended that deadwood over 25 mm in diameter be removed and the crown be lifted over the highway, meaning that the tips of the lower branches be pruned to prevent any high sided vehicles striking the branches and the basal area be monitored annually. The recommendations did not indicate any urgency or concern for the tree and Mr. Power gave it a priority rating of 6 out of 16 on HCC's matrix.
HCC placed reliance on insufficient evidence to support Mr....
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