MARK DANIELS - Adviser on visitor and occupational health and safety at historic buildings, parks, gardens, coast and countryside

News archive February 2014

10th February 2014

Sub-contract tree surgeon severely injured in fall from tree in 2009 loses civil claim against National Trust

A self-employed tree surgeon who was paralysed after falling from a mature horse chestnut tree has lost his claim in the HIgh Court for damages against the National Trust (NT). The comments made by the Judge will be of interest to anyone engaging contractors and bring some clarity to the nature of the duty of care owed by occupiers. This news item draws heavily on an article (which I helped to write) on the IOSH Rural Industries Group web site, to which there is a link below.

The injured person (IP) was 22 when he fell 15m while using a chainsaw on a diseased and dying tree in the garden of a tenanted house at a National Trust property - Morden Lodge, in Morden Hall Park, Surrey, in December 2009. The Enforcing Authority (London Borough of Merton) originally issued summonses relating to the accident against the NT and their contractor who Mr Yates was working for, but did not proceed with either prosecution.

Mr Yates, now 26, has no use of his legs and is permanently confined to a wheelchair. He sued the NT, based on negligence and the Work at Height Regulations 2005. However, the Judge concluded that the NT did not have a "relevant duty of care" and therefore he was not entitled to compensation from the Trust.

The High Court heard that Mr Yates did not have the correct certification for the work involved (although there was some disagreement between experts over whether CS39 was sufficient) and he hadn't dealt with limbs of such size nor a tree of this size while he was the climber. He has no memory of the catastrophic accident and the cause remains uncertain. The Court was told that he was just an hour-and-a-half into the two-day job. His colleagues on the ground were concentrating on feeding branches into a woodchipper and no-one saw him fall. He had to be cut from his climbing rope and harness.

The Judge said it was unlikely that he had cut through a branch on which he was sitting or sliced through his rope with his chainsaw, but it was possible that the branch being used as an anchor point had failed (due to being rotten), or that he had inadvertently detached himself from his anchor point.

The cliamant's legal team argued that the NT was negligent in employing the firm that he worked for without checking that its staff were properly qualified and insured for such a dangerous job. The scope of the NT’s duty of care was said to be to select a competent contractor. Throughout the case the claimant's legal team argued that the contractor was not competent and that the claimant was too inexperienced to carry out work in the tree.

If the claimant’s arguments had been upheld, it would have had significant implications for anyone engaging or managing contractors. However, the judge concluded that the National Trust had taken adequate steps to check out the credentials of the firm and had not assumed responsibility for the claimant's safety. The NT’s contract with the contractor began in May 2007 and by the time of the accident in December 2009, he and his team of men had worked on over 60 trees in the Park, spanning approximately 15 separate contracts. They had carried out these jobs without incident.

The judge further commented that the NT’s Park Warden could not have been expected to supervise the job any more closely than he did. He had regularly visited the scene but had seen nothing to indicate that the team were working unsafely. There was nothing to put him on notice that the claimant was not qualified to carry out the work safely and, on those facts, the judge concluded that it would not be ‘fair, just and reasonable’ to impose a duty of care on the Trust.

The IOSH article can be found here (it contains other links, including a useful commentary by the legal firm representing the National Trust):
http://www.iosh.co.uk/Membership/Our-membership-network/Our-Groups/Rural-Industries-group/Group-news/Paralysed-tree-surgeon-loses-claim-against-National-Trust.aspx

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