Bowen (A Child) & Ors v The National Trust

An occupier of woodland owes lawful visitors the statutory common duty of care: to take such care as is reasonable in all the circumstances to ensure that they are reasonably safe. The duty does not require absolute safety.

Where a defendant employs persons professing a specialist skill, the standard is that of the ordinary skilled person, assessed under the Bolam test. In tree-safety cases, reasonable inspection requires an assessment of both the tree’s condition and the location and intensity of use. A defect or possible failure does not automatically require tagging or remedial work. The question is whether the inspectors’ judgment was one which no reasonable inspector could have formed.

The claimants were three children injured, and the mother of a child killed, when a large branch fell from a mature beech tree in the National Trust’s Great Wood at Felbrigg Hall.

The claim concerned liability only. The claimants alleged that the National Trust’s inspectors failed to identify warning signs, failed to take appropriate remedial action, and operated inadequate systems and training. The central issues were the scope of the occupier’s duty, the appropriate standard for specialist tree inspectors, and whether the inspections and risk assessment were reasonable in the circumstances.

The claim was dismissed. Mr Justice Mackay held that the National Trust was subject to the common duty of care under Occupiers’ Liability Act 1957, section 2(2), together with a co-extensive common-law duty. The duty required reasonable care to provide reasonable safety, not an assurance that visitors would be entirely safe.

1. The standard applicable to the tree inspectors was that stated in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: an ordinary skilled person professing the relevant skill. The principle was not confined to medicine or the learned professions, as illustrated by Adams v Rhymney Valley D.C. [2001] PNLR 4.

2. The National Trust’s inspection guidance was sufficiently clear. Risk had to be assessed by considering the condition of the tree together with its location and the intensity of use. The later guidance’s three-stage approach—magnitude of hazard, probability of failure and consequences of failure—confirmed this analysis.

3. The presence of adaptive growth was not, by itself, enough to require tagging or remedial works. The relevant question was whether the inspectors’ judgment, considering the tree’s condition and location together, was one which no reasonable tree inspector could have formed.

4. The inspectors had used the care expected of reasonably competent persons. The tree’s visible features, previous branch failures and the path’s relatively low usage did not make their assessment unreasonable. The National Trust had also provided adequate training and instruction.

The tragic outcome did not establish negligence. The defendant was not in breach of duty.

First-instance decision. No prior appellate decision is stated in the judgment.