This article first appeared in the New Law Journal on 15 January 2010.
Mark Bowman suggests when to see beyond an Act of God.
Pre action admission of liability withdrawn.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.
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.
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.
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 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.
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.
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.
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.