Bowen (A Child) & Ors v The National Trust

Factual and Procedural Background

The Defendant, a well-known charity and large landowner, owned a natural woodland estate containing a Site of Special Scientific Interest known as the Great Wood. On 26 June 2007, a group of schoolchildren, supervised by a teacher, were using a trail in the Great Wood for educational activities when a large branch from a mature beech tree unexpectedly fell on them. One child was killed and three others suffered serious injuries. This legal proceeding concerns the trial of liability for the injuries and death sustained by the claimants and the deceased child's mother.

Legal Issues Presented

1. Whether the Defendant, as occupier of the wood, owed and breached the common duty of care under the Occupiers' Liability Act 1957 and common law to the claimants.
2. Whether the Defendant's tree inspectors exercised reasonable care in inspecting the tree prior to the incident, applying the standard of care established in Bolam v Friern Hospital Management Committee.
3. Whether the Defendant's inspection instructions and training were adequate and properly applied in this case.
4. Whether the presence of adaptive growth on the branch constituted a warning sign requiring remedial action or further investigation.

Arguments of the Parties

Appellants' Arguments

• The Defendant's tree inspectors failed to exercise reasonable care in their inspections, neglecting to identify warning signs such as adaptive growth on the branch that fell.
• The Defendant's inspection instruction (Instruction 1) was fundamentally flawed, particularly in its risk assessment approach, potentially causing confusion and inadequate identification of hazardous trees.
• The adaptive growth on the branch was a significant defect that should have prompted tagging and remedial measures, such as branch removal or path rerouting.
• The Defendant’s systems and training were inadequate to ensure proper inspection and risk assessment.

Defendant's Arguments

• The Defendant owed a duty to take reasonable care to ensure visitors were reasonably safe, not to guarantee absolute safety.
• The tree inspectors acted in accordance with a responsible body of opinion, satisfying the Bolam standard of care.
• Instruction 1, while less detailed than the subsequent Instruction 11, was clear and practical in its approach to risk assessment, considering both tree condition and location.
• Adaptive growth is a common feature on mature beech trees and does not necessarily indicate a hazardous defect.
• The inspectors were trained and competent, and their judgment that the tree did not require tagging or remedial action was reasonable.
• The risk assessment properly included consideration of both the defect and the intensity of use of the area, and the tree was situated in a medium risk zone with relatively low pedestrian traffic.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the Defendant's duty under the Occupiers' Liability Act 1957 and common law to take reasonable care to ensure visitors' reasonable safety. It acknowledged the difficulty in applying this duty in the context of natural woodland and tree inspection, where absolute safety cannot be guaranteed.

The court accepted that the standard of care for the Defendant's tree inspectors was that of a reasonably skilled professional, assessed by the Bolam test. The Defendant's inspection instruction (Instruction 1) was examined in detail. Although criticized by the claimants' expert for potential confusion and omission of explicit consideration of tree condition, the court found Instruction 1 clear and practical when read as a whole, encompassing both tree condition and location in risk assessment.

The court evaluated the evidence regarding the mechanics of the branch failure, including the presence of adaptive growth (AG) flares visible from the ground. While the claimants argued AG was a warning sign necessitating tagging and remedial action, the court noted that AG is common on mature beech trees and does not by itself indicate a hazardous defect.

The inspections conducted by the Defendant's forester and volunteer were scrutinized. The court found the inspectors honest, conscientious, and adequately trained, having inspected the tree twice prior to the incident and formed a judgment that the defects were not significant enough to warrant tagging or remedial measures. The negative reporting system was noted, but not criticized for medium risk zones.

The court considered the intensity of use of the path under the tree, finding it relatively low, and accepted the inspectors' judgment that the risk did not justify further action. The court rejected the claimants' argument that any potential defect should trigger tagging, emphasizing that risk assessment requires balancing defect significance and location.

Ultimately, the court concluded that while the inspectors' judgment was unfortunately incorrect in hindsight, it was within the range of reasonable professional opinion. The Defendant had provided adequate training and instruction, and no negligence or breach of duty was established.

Holding and Implications

The court's final ruling was in favour of the Defendant, dismissing the claimants' allegations of negligence and breach of duty.

This decision means that the Defendant is not liable for the tragic injuries and death resulting from the branch failure. The judgment underscores the legal principle that occupiers and their agents are required only to take reasonable care, not to guarantee absolute safety, especially in natural environments where risk assessment involves professional judgment and inherent uncertainties. No new legal precedent was established; rather, the existing standards for duty of care and professional inspection were applied and reaffirmed.