I think there is a conceptual issue here, apart from any particular case law
or statute either in
the UK or the US.
I am aware of other cases in which the breach was determined to be a lack of
reasonable effort to
discover conditions leading to failure. Evidence was not even necessary
relative to the cause of
failure and its interpretation. "Were you supposed to make a reasonable
effort to discover? Yes.
Did you,. No. Did the tree fail? Yes. OK then it's your fault."
I worry that we create increasingly higher duties to discover lesser and
lesser conditions that
might cause failure. This duty to discover, as a remedy under the law, must
rest on an acceptance
of the concept that the duty is productive. That if each and every tree is
inspected, the rate of
failure will be reasonably and significantly lower. That in turn seems to
rest on acceptance of the
concept that we have the technical ability to predict most failures based on
scant evidence. And I
wonder if that is really true.
Should we have created for ourselves a duty to inspect them all? Or is the
occurrence of failures
concentrated in a population that has rather gross characteristics? Either
"defect" characteristics
or size or relationship to target characteristics?
SC
----- Original Message -----
From: "R2i" <r2i@xxxxxxxxxxx.com>
To: "UK Tree Care" <uktc@xxxxxx.tree-care.info>
Sent: Sunday, January 04, 2004 6:37 AM
Subject: Chapman v LB Barking & Dagenham
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
That's an interesting point about reasonable effort:
In last year's case of the pine tree killing the schoolgirl no evidence was
found to show that the
tree could be regarded as unsafe, but I don't know if Surrey's CC's system of
hazard and risk
assessment was reviewed by HSE. Do we know if this tree had been the subject
of an earlier
assessment? Did Surrey CC get off by the skin of their teeth?
I know of at least one consultant local to the school who was contacted
within days of the incident
asking to quote on assessing trees in other schools. Since he didn't get the
work I assume someone
else did. The implication being that Surrey CC was clearly not confident that
they had a robust
system in place.
Anyone out there with knowledge of the Surrey case, as comparing to Barking
and Dagenham there seem
to be some differences.
John
--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info
The UKTC is supported by The Arbor Centre
http://www.arborcentre.co.uk/
--
The UK Tree Care mailing list
To unsubscribe send mailto:uktc-unsubscribe@xxxxxx.tree-care.info
The UKTC is supported by The Arbor Centre
http://www.arborcentre.co.uk/
