Micklewright v Surrey County Council

Failure by an occupier or highway authority to operate a proper tree-inspection system does not automatically establish negligence. The claimant must prove that a reasonable inspection would probably have revealed the defect or danger and that reasonable further action would have prevented the injury. Where the defendant’s handling of evidence places the claimant at a substantial disadvantage, the court may assess the claimant’s evidence benevolently and the defendant’s critically. That approach does not reverse the burden of proof. An appellate court should not substitute its own evaluation of factual evidence where the trial judge directed himself correctly, considered the evidential disadvantage, and reached a conclusion open to him, even if the case might have been decided differently.

Christopher Imison was fatally injured by a falling tree branch while unloading bicycles on a public road. Joanne Micklewright brought claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 against Surrey County Council as occupier and highway authority.

The Guildford County Court dismissed the claims on 20 October 2010. Although the judge found that the Council had no proper system for inspecting highway trees, he held that the claimant had not proved that the required routine inspection would have revealed signs warranting expert arboricultural investigation. The appeal concerned the application of the evidential approach in Keefe and the proper scope of appellate review of that factual evaluation.

The appeal was dismissed. The finding that the Council had no proper system of tree inspection was not challenged, but breach of that duty did not determine liability.

1. Duty and causation. The direction that failure to inspect does not automatically create liability was impeccable. The claimant still had to prove, on the balance of probabilities, that a proper inspection would have revealed the defect or danger. The principle was illustrated by Caminer v Northern & London IT [1951] AC 88 at 103.
2. Effect of missing evidence. The trial judge correctly adopted the approach in Keefe v Isle of Man Steam Packet Co [2010] EWCA Civ 683 at paragraph 19: the claimant’s evidence should be judged benevolently and the defendant’s critically where the defendant’s conduct has caused substantial evidential disadvantage. That approach did not reverse the burden of proof or relieve the claimant of proving the case.
3. Sequential inquiry. The relevant questions were whether the routine inspection would have led to an expert arboricultural inspection and, if so, whether that inspection would have led to removal of the branch. The court accepted that, had expert inspection been warranted, it probably would have revealed the decay and led to removal. The decisive issue was whether the claimant had proved that a competent routine inspector would have been put on notice. The trial judge was entitled to conclude that she had not.
4. Appellate restraint. The appellate court must not rehear essentially factual cases or substitute its own evaluation for that of the trial judge. The guidance in Piglowska [1999] 1 WLR 1360 (HL), including the passage referring to Biogen Inc v Medeva Plc [1997] R.P.C. 1 at 45, applied. The challenge showed only that the case could have been decided differently. That was insufficient to justify intervention.

The judge had directed himself correctly, considered the claimant’s evidential disadvantage, and reached a conclusion open to him. The appeal was therefore dismissed.

• Court of Appeal (Civil Division) — In [2011] EWCA Civ 922, the appeal from the dismissal of the claims was dismissed.
• Guildford County Court — His Honour Judge Robert Reid Q.C. dismissed the claims on 20 October 2010.