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Appeal unlikely against falling branch ruling

National Trust says policies 'clear and robust'

8 August 2011

Edward Powell, head of personal injury at Essex firm Ellisons, has said it is “unlikely there will be an appeal” after the High Court ruled that the National Trust was not negligent after a boy died from a falling branch on one of its estates.

Daniel Mullinger was on a primary school trip when the class sheltered under an old beech tree in heavy rain at Felbrigg Hall, Norfolk. A heavy branch collapsed onto the group, killing Daniel and seriously injuring three other children.

The accident occurred in the Great Wood, home to almost 250,000 mature trees and a site of special scientific interest because of them.

Delivering judgment in Bowen and others v The National Trust [2011] EWHC 1992 (QB), Mr Justice Mackay said the group was sheltering briefly under a large beech tree, probably between 160 and 180 years old, when “entirely without warning” a large branch fractured and fell on them.

Mackay J said the trust owed the children a duty under the Occupiers’ Liability Act 1957 and under the general law of tort.

He said there was no obligation to ensure the safety of visitors, merely to “take reasonable care to provide reasonable safety”.

Mackay J went on: “It is easy to state the law in this area, but less easy to apply it, particularly in a case with such a tragic outcome as this.

“The thrust of the case against the defendant is that its tree inspectors, for whom it is vicariously liable, failed to exercise reasonable care in their task.”

He said that if, as the claimants argued, the “bare possibility of a failure of a tree branch” in a medium-risk zone was enough to trigger tagging and remedial works, the bar would be set at “an unreasonably low level”.

He said the judgment of the National Trust tree inspectors that the tree was safe was wrong, with disastrous consequences, because of the “cruellest coincidence” of the failure occurring at the very moment the group was standing under the branch.

“But risk assessment in any context is by its very nature liable to be proved wrong by events, especially when as here the process of judging the integrity of a tree is an art not a science, as all agree.

“I accept these inspectors used all the care to be expected of reasonably competent persons doing their job, and the defendant had given them adequate training and instruction in how to approach their task.

“To require more would serve the desirable end of compensating these claimants for their grievous loss and injuries.

“But it would also be requiring the defendant to do more than was reasonable to see that the children enjoying the use of this wood were reasonably safe to do so. I regretfully conclude that I cannot find that the defendant was negligent or in breach of its duty in respect of this tragedy.”

Powell, who acted on behalf of the families, said the judgment was “difficult to accept” because the paths under the tree were used by about 4,000 children a year on school trips.

He said that four years later the incident remained a “very personal tragedy” for the four families involved.

A spokesman for the National Trust said Mackay J had found their policies to be “clear, robust and comprehensive”.

He added: “The recent outcry by the British public over the proposed selling off of the nation’s forests showed that gaining access to trees is vital for many people.”

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