This article first appeared in the New Law Journal on 15
January 2010.
Mark
Bowman suggests when to see beyond an Act of God.
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In
brief
Pre action admission of
liability withdrawn.
Liability in dispute until
under 10 days before trial.
Claimant recovered £300,000
after being injured by falling tree.
|
Introduction
The 18 January 2007 was one
of the windiest days in Britain for years. Planes, trains and ferry
services were cancelled, motorways closed and hundreds of trees
fell as winds of in excess of 90 miles per hour were reported.
Mr M, a lecturer at
Southgate College in London, had completed his classes for the
morning and was walking along the main driveway of part of the
college campus when a sudden gust of wind blew over a mature
copper beech tree, adjacent to a car park (where hundreds of
students/lecturers would pass each day). The tree landed on Mr M
and he suffered severe spinal and psychiatric injuries as a result.
He was subsequently medically retired on the grounds of ill
health.
Act of
God?
At first glance it appeared
as though this was a typical "Act of God" scenario where the
defendant in this case, presumably Southgate College, would
reasonably point co the high winds, the number of trees falling
throughout Britain, and argue that circumstances outside their
control had caused Mr M's injuries.
Southgate
College
We disagreed and undertook
intensive investigations to try and find liability on behalf of a
potential defendant. Investigations initially centred on Southgate
College, Mr M's employer, who clearly owed him a duty of care both
at common-law and also under statutory law and in particular the
Occupiers Liability Act 1957 and the Workplace (Health, Safety and
Welfare) Regulations 1992.
Amenity Sports
Management Ltd
Early on we were able to
obtain CCTV footage of the tree falling on Mr M; in itself of
little evidential value, but certainly enough to counter Southgate
College's later astonishing allegation that the accident was partly
caused by Mr M's own negligence for failing to get out of the way
of the falling tree. (CCTV footage revealed that the tree rook
approximately 0.5 seconds to fall in total). More importantly,
documents disclosed revealed that Southgate College had contracted
with Amenity Sports Management Limited ("ASM") to maintain the
grounds of the college.
The contract between
Southgate College and ASM stated that the latter would indemnify
the former against any claim arising out of their work or for any
breach of their contract with them. Investigations therefore
quickly turned to ASM and their role in maintaining the grounds of
Southgate College even though we always believed that Southgate
College may be liable under the various statutory provisions.
Expert arboricultural advice
was obtained and the remnants of the tree's stump inspected. Our
expert advised that at the time that the tree fell it had rotten
diseased roots. He also advised that, given the nature of the
disease, the tree would likely have been rotten from at least June
2006 onwards. This was important as it had been revealed that ASM
had "inspected" the tree at frequent intervals from June 2006
onwards.
Our claim was therefore,
that with competent inspections, this would have been revealed and
led to the tree being felled.
Admission of
liability?
ASM confirmed that their
investigations had revealed the tree to be diseased when it fell.
Furthermore, as they had had a contract with Southgate College,
which included an indemnity in the college's favour, should they
fail to discharge their duties under the contract, ASM admitted
liability. In doing so, ASM also referred to a subcontractor, Mr S
Graney, trading as S Graney & Sons, who they arranged to assist
with the inspection of trees, and who they felt also had "a
liability to answer".
Steps were therefore taken
to issue proceedings and enter judgment against ASM. In the
meantime however, ASM instructed solicitors and sought to withdraw
their pre-action admission on the basis that the indemnity
contained within the contract between themselves and Southgate
College only operated if there was liability upon the College. They
did not believe there was any such liability and therefore their
admission had been made in error.
Proceedings were served on
ASM but it was agreed that they should be able to defend the claim.
In order to cover their backs ASM also issued Part 20 proceedings
against Mr S Graney who had also "inspected" the tree on one
occasion in June 2006.
Three
defendants
We therefore had no
alternative but to add Mr Graney as co-defendant in the main
action. In addition, given the withdrawal of the pre-action
admission and the statutory obligations owed by Southgate College
to Mr M, Southgate College were also added as co-defendants.
Southgate College themselves
issued Part 20 proceedings against ASM citing the contractual
indemnity as a defence. At this stage in proceedings the three
defendants were all effectively blaming each other:
(i) Southgate College were
arguing that they relied on ASM to do a good job and in any event
that they were contractually indemnified against any claim.
(ii)ASM were arguing that
they relied on Mr Graney's advice and that he should have advised
the tree be cut down.
They also argued that
inspection of trees did not fall within the terms of the written
contract with Southgate College but that it was subject to the
terms of an oral contract where no such indemnity applied.
(iii)Mr Graney argued that
he was not a tree specialist and on the one occasion that he had
inspected the tree he had advised that it was very weak and needed
to be monitored, thereby discharging any duty of care that he owed.
Interestingly, none of the defendants pleaded the tree falling to
be an Act of God.
Given the above it was
agreed that this claim should be heard as a split trial with
liability to be tried as a preliminary issue. The case was listed
for a five-day trial in the High Court from 2 November 2009
onwards.
The local authority
a fourth defendant?
Exchange of witness evidence
provided us with further issues. Amongst the witness statements
disclosed by ASM was a statement from the local authority's tree
preservation officer (TPO) who had himself inspected the tree in
August 2006. He noted that the tree showed signs of "considerable
stress" and that it had sparse leaf coverage probably resulting
from the drought conditions experienced that summer. This was a
potential blow to our case as another set of eyes had "inspected"
the tree and had not deemed it necessary to cut it down at that
time.
Adding the local authority
as a fourth defendant was considered, however on a closer look it
became clear that the inspection was not as detailed as ASM were
implying. The purpose of the inspection was to approve or reject
works that had been applied for and which required consent. The
purpose was not to inspect the tree in the manner of an
arboriculturalist, nor to provide advice as to whether the tree
should be felled. There was therefore no need to add the fourth
defendant. Indeed it was felt that that the TPO would provide
useful evidence for the claimant under cross-examination.
Expert
evidence
Expert evidence was
exchanged and there were large areas of disagreement between the
experts, in particular it was not agreed that the tree would have
shown signs of disease in the summer or autumn of 2006; a key part
of our case. It was therefore necessary for the experts to meet in
order to discuss the areas of disagreement between them and see if
they could reach any further consensus.
In the meantime all parties
agreed to hold a settlement meeting. By this stage Mr Graney was
acting as a litigant in person as his liability insurance did not
cover him for the allegations being made in this case. He also was
a man of limited assets and therefore was unlikely to be able to
pay any damages should he be found liable. It was agreed to hold a
mediation as opposed to a round table meeting so that Mr Graney was
not overly prejudiced.
Mediation
The mediation, held only
three weeks before trial, proved fruitless, with the defendants
unable to agree to apportion liability between them. In an attempt
to facilitate a settlement, and in view of the fact there was still
a risk that our claim would fail, Mr M instructed us to put forward
an offer to accept 95% of his damages to be assessed or agreed. The
offer was made to the defendants as a whole and to each of them on
an individual basis.
Meripilus
Giganteus
With only two weeks to go to
trial the experts met to discuss their reports. Attempts had been
made for the experts to meet earlier but due to various other
commitments, it had not proven possible for them to meet in advance
of the mediation. At the expert meeting a photograph taken by a
colleague of Mr M on 18 January 2007 was enlarged onto a projector
screen for the experts to see. It was agreed that the photo clearly
showed a fungal fruiting body known as Meripilus Giganteus on the
trunk of the tree. This had not been evident on looking at the
photograph originally. Such a fungal fruiting body was agreed on
balance to have been present for at least two months prior to the
tree falling and should not have been missed by any reasonably
competent inspection regime.
With under 10 days to go
before trial ASM accepted our offer and also made an offer on
quantum of £300,000. Mr M accepted the offer and ASM agreed to be
responsible for our legal fees in pursuing all three defendants,
costs that were only incurred as they had withdrawn their offer,
made nearly two years previously.
Lessons
A number of useful lessons
can hopefully be learned:
"Act of God" is pleaded less
often that might be anticipated and claimant solicitors should
investigate cases fully as liability will often be found where in
the first instance it seems unlikely.
Experts should be chosen
carefully. This goes without saying but is especially important
when choosing an expert in a discipline you have not used before.
Our expert played a huge role in obtaining such a favourable
settlement for Mr M.
Contemporaneous evidence can
be crucial. It was far easier to predict the state of the tree in
late 2006, having viewed photographs taken in January 2007, than it
would have been based on photographs taken alone at our expert's
inspection some months later.
Ensure expert discussions
take place as early as possible. In this case, had the experts met
before the mediation, not only would the costs of the mediation
have been avoided, but additionally, we would never have advised Mr
M to accept a 5% deduction in his claim. As it was, Mr M suffered
no prejudice from this deduction as ASM's offer on quantum was felt
to be generous.