UKTC Archive

Re: Chapman v LB Barking & Dagenham

Subject: Re: Chapman v LB Barking & Dagenham
From: Chris Hastie
Date: Dec 29 2003 13:39:28
On Mon, 29 Dec 2003 John Flannigan <John.Flannigan@xxxxxxxxxxx.gov.uk>
wrote
I know this was all over and done some years ago now but I am reviewing our
risk assessments and the judgement is critical in this process.

Anyhow I was reading the summary of this case

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1998/1200.ht
ml

from Chris Skellerns excellent www.aie.org.uk

and I am hoping that some of you out there with a greater knowledge of fungi
and bacteria can help with a specific query. A key part of the case appears
to hinge around the existence of bacteria on the stump and some staining
shown on pictures of the offending branch (the whole tree had been removed)

My memory of reading reports of the original case was that this wasn't
really key at all. The key issue was the distinction between "making
lists of trees" (a phrase used, I think, by the original judge) and
carrying out inspections.

and the appeal judges said,

"The plaintiff's expert,
<snip>
Those
investigations satisfied Mr Rose first that the active bacteria indicated
that the decay had travelled down the tree rather than up from the roots,
and second that the presence of active bacteria showed that the bacteria
enjoyed a source of oxygen from a wound open to admit air higher up the
tree.
"

What does all this mean?

I'm not sure it matters. It goes into the realms of was the failure of
the branch reasonably foreseeable - was there existing decay and could
it have been spotted. Dr Rose, I think, is suggesting that there must
have been an open cavity in the upper part of the tree. However, I think
whether the incident was reasonably foreseeable or not would only have
really been relevant if LB Barking and Dagenham had made a reasonable
effort to foresee it - the key to the case was they hadn't.
-- 
Chris Hastie


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