Stagecoach South Western Trains Ltd v (1) Ms Kathleen Hind (First Defendant) (2) Mr Andrew Steel (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 11 June 2014 |
| Neutral Citation | [2014] EWHC 1891 (TCC) |
| Docket Number | Case No: HT-12-386 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 11 June 2014 |
[2014] EWHC 1891 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Coulson
Case No: HT-12-386
and
Mr John Meredith Hardy (instructed by Watmores) for the Claimant
Mr Richard Stead (instructed by Lyons Davidson) for the First Defendant
Mr Jason Evans-Tovey (instructed by BLM) for the Second Defendant
Hearing dates: 12, 13, 14 and 15 May 2014
INTRODUCTION
Rose Cottage ("the property") is an early Victorian house adjacent to the railway in Staines. At about 12:30am on 18 December 2009, one of the claimant's trains, travelling eastwards from Staines to Feltham, collided with a stem of an Ash tree ("the Tree") which had fallen onto the railway line from the garden of the property. At the time of the collision, the property was owned by the first defendant, Ms Kathleen Hind, a primary school headmistress.
In these proceedings, the claimant seeks to recover the cost of repairing the damage to the train, and other consequential costs, against Ms Hind. There is also a separate claim against the second defendant, Mr Andrew Steel, a tree surgeon who carried out certain work to the trees and shrubs in Ms Hind's garden in 2006 and 2007. Damages have been agreed at £325,000. The liability of both defendants remains in issue.
CHRONOLOGY
Ms Hind bought the property on 15 August 2001. It is an attractive house with a large garden. The southern strip of the garden abuts the railway line; indeed, it appears that this strip was originally owned by the relevant railway company, before being conveyed to a previous owner of the property in the 1960's. The eastern end of this strip of land narrows into a triangular area which, at the relevant time, was uncultivated and covered with ivy, brambles and nettles. The Tree was located close to the point of the triangle. It was hard up against the wooden fence on the southern side of the garden, and part of it overhung the railway.
The Tree was an Ash. It was about 150 years old. It was originally made up of three separate stems. The northern stem had fallen many years before Ms Hind bought the property. The two remaining stems, the eastern and the western, grew out of a common trunk. They were largely vertical, although it became apparent during the trial that there was a large branch growing off the eastern stem approximately along the boundary line.
Shortly after Ms Hind purchased the property, she employed a tree surgeon, a Mr Holmes, to cut back trees and shrubs to let some light into the garden. This work cost around £2,000. However, Ms Hind was not happy with Mr Holmes' work and did not use him again. She felt that he had caused unnecessary damage to the trees. He may have done some work to the Tree but, if so, it was not clear precisely what he did.
In January 2006, Ms Hind engaged Mr Steel, the second defendant, to carry out some further work in the garden. She was given Mr Steel's details by his mother, who worked at Ms Hind's school. A workscope was agreed which included the cleaning out of the crown of the Tree and the removal of deadwood. The total value of the work Mr Steel agreed to do was £725, plus £180 for the removal of vegetation.
The detailed evidence about the work that was carried out in January 2006, and how it came about, came from Ms Hind and Mr Steel. Ms Hind said that she did not ask Mr Steel to inspect the Tree, so she could not reasonably expect him to have done so. She went on:
"He did the work I asked him to do. I was always very satisfied with the work that he did…I walked round the garden with Mr Steel discussing the works that I thought needed doing. And he then did the work we agreed."
She said that they had talked about the trees, in relation to their width, shaping and so on. As to the Tree itself, she said that she had asked Mr Steel to clear out the crown and remove the deadwood – principally twigs – in order to allow more light in.
Ms Hind said that she was seeking Mr Steel's advice only to the extent that he would advise on, for example, how much of the branches should be cut out. She said that he needed to be sure precisely what it was that she wanted. She emphasised that, mostly, Mr Steel did not suggest what needed to be done. She said that, essentially, Mr Steel's advice was as to how the work she wanted would be carried out, not what was to be done in the first place. She did not seek his advice generally about the trees.
Mr Steel confirmed all of this in his own evidence. He said:
"We discussed what she wanted to carry out. I gave some opinions on how to do it."
It was put to Mr Steel that he gave advice. He denied that, saying that he made recommendations. He gave his opinions on the specific matters raised with him, such as what the effect would be if a particular item of work was done. He said that his opinions were limited to (for example) recommending, where Ms Hind said she wanted a tree or shrub reduced by 50%, that it should only be reduced by 25%. He said that he might have pointed out to her any obvious signs of weakness or defects and indicated that they 'needed to talk about that'. Mr Steel would give Ms Hind different options but then leave the final decision to her. He was also very clear that he would not go onto the eastern stem of the Tree at all, because it overhung the railway and he did not want to work over the live rails. It was agreed that he would work on the western stem only.
In June 2007, Ms Hind employed Mr Steel to carry out further work in the garden. He described this as "minor work". It does not appear that he carried out any work to the Tree. Similarly, in September 2007 Mr Steel carried out further work in the garden which he described as "general maintenance and tidying trees". Again, this work had nothing to do with the Tree. In addition, at some point during this period, Network Rail sent some contractors to trim back two fir trees and the pyracantha bush growing on the boundary. It seems that this was done from the railway side of the fence.
The night of 17/18 December 2009 was cold with a strong wind and snow. There is an agreed weather report which concluded that some of the winds that night reached gale force; the temperatures were below freezing; and there were snow showers. It is agreed that the prevailing weather conditions – in particular, the wind and the snow – explained why the eastern stem of the Tree fell when it did, although they were not the principal cause of the fall.
At some time shortly before 12:30am on 18 December, the eastern stem of the Tree fell onto the railway tracks. The lower part of the eastern stem fell across the track closest to the garden, which was a line serving the up-line sidings. The top part of the eastern stem fell across the adjacent up-line (heading towards Feltham and Waterloo), with some of the top branches extending to the down-line beyond.
At about 12:30am an empty train was being driven along the up-line from Staines to Feltham by Mr Orton. It was the last journey of the day and Mr Orton was taking the empty train to the depot at Strawberry Hill, where he was due to arrive at 00:35. The train was travelling at about 40mph. Because of the darkness and the slight curve of the tracks, Mr Orton did not see the Tree until immediately before the collision. He applied full braking and then emergency braking. Two train units struck the fallen stem of the Tree and were damaged by it. The train broke the stem of the Tree in half. Fortunately no one was injured.
Emergency personnel were brought to the scene, along with representatives of Nash, Network Rail's 24-hour response contractors. The eastern stem of the Tree was then cut up using a chainsaw. Mr Cull, a representative of Nash who did not give evidence but whose statement was read under the Civil Evidence Act, reiterated that, in his view, the stem was rotten. The following morning, Network Rail's contractors (exercising their statutory powers) entered Ms Hind's garden whilst she was at work, and cut down the western stem of the Tree. The western stem was found to be generally sound, although some minor signs of internal decay were apparent once it had been felled.
On 23 April 2010, the claimant sent a letter of claim to Ms Hind. Less than six weeks later, on 2 June 2010, and before Ms Hind's solicitors had written to the claimant's solicitors advising of their instruction, Mr Sheppard, an expert arboriculturalist instructed on behalf of the claimant, attended the property and interviewed Ms Hind. He purported to make a note of her answers and then added the questions that he claimed to have asked into the note afterwards. Concerns have been expressed on behalf of Ms Hind about this process and the evidence demonstrated the unprofessional way in which the interview was carried out and recorded. I deal with that in greater detail in Section 4 below.
In about September 2010, Ms Hind asked Mr Steel to undertake further work at the property. It was only then that Mr Steel learned that the eastern stem of the Tree had fallen onto the railway track. He was asked to remove a large piece of the western stem which was then lying in the overgrown part of the garden, and to fell the two remaining Ash trees on the other side of the property. Although these trees were sound, Ms Hind was understandably concerned about history repeating itself. It appears that this work was completed by 1 October 2010.
THE STATE OF THE TREE IN DECEMBER 2009
Visible Condition
In a photograph taken in about September/October 2009 (that is to say, about three months prior to the...
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