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July 28, 2011

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Tree-branch fatality the result of “cruellest coincidence”

The High Court has exonerated the National Trust of blame over an incident in which an 11-year-old schoolboy was killed by a falling branch at a wood in Norfolk four years ago.

On 26 June 2007, Daniel Mullinger was part of a supervised school group following a trail in a wood at the Trust’s Felbrigg Hall. It began to rain and the group sheltered briefly under the canopy of a large beech tree, which was between 160 and 180 years old.

Without warning a large branch, which weighed up to two tons, broke off and fell on the group. Daniel was killed and three other children suffered fractures and serious injuries. The families of the victims launched a legal case against the Trust, arguing that its tree inspectors failed to exercise reasonable care in their task.

The tree had been inspected on two occasions prior to the incident. Although there was a depression on the branch and signs of stress, they would not, said Mr Justice Mackay, have been visible from the ground, from which routine tree inspections are undertaken.

The claimants’ case argued that the mere presence of the signs of stress was a warning of a possible failure, which would have required further investigation. The defendant countered that the signs of stress in question are a frequently found feature on most mature beeches of a similar age to the tree involved in the incident.

The claimants also argued that the possibility of a failure of a tree branch in a medium-risk zone – defined by the Trust as “footpaths, bridleways, etc. in regular but not intensive public use, quieter areas of park, etc.” – should have triggered tagging of the tree and remedial works to take place. The judge, however, disagreed, contending that this would “substitute for an exercise in risk assessment taking condition and location into account, which is what the inspectors here were engaged on, the mere identification of potential defects in trees without consideration of their significance”.

The judge concluded that the tragedy was the result of “the cruellest coincidence of the failure occurring at the very moment this small group was standing under the branch when it did so”.

Describing the process of tree inspection as “an art not a science”, he found that the inspectors had “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”.

Following the ruling, the National Trust said its sympathies were with the families involved, but welcomed the court’s decision.

A spokesman said: “It is important to the Trust that Mr Justice Mackay found our policies to be clear, robust and comprehensive. And we were reassured to hear that he felt that our tree inspections had been carried out competently.”

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. Therefore, we do everything we reasonably can to minimise the risks involved while understanding that safety can never be guaranteed.”

Another boy, Timothy Sutton, was killed by a falling branch in a National Trust-owned park, on New Year’s Day 2005.

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12 years ago

This is very sad but it is a good outcome for safety in the real world. In my opinion, the legal team advising the claimants were really asking the court to apply an “absolute” interpretation of duty of care, as opposed to the “reasonably practicable” duty required in proper risk assessment.

Having done their duty, the National Trust were brave enough to state their case, when many other companies, perhaps under pressure from insurance companies, duck the issue and settle out of court.