South West Trains lose "vindictive" court case over fallen tree

[Tetchytyke]

http://www.standard.co.uk/news/tran...anch-from-her-tree-damages-train-9542700.html

A keen gardener has won a battle over a £325,000 repair bill after a train hit a tree branch that fell onto the track from her garden.

Stagecoach South West Trains had suggested that Kathleen Hind, a retired primary school headteacher, had “cheerfully let [her garden] go to rack and ruin”.

But a High Court judge rejected the allegation and said Ms Hind was a knowledgeable gardener.

Ms Hind, 65, said today: “I’m just relieved that it is all over and pleased that justice has been done.

“In my opinion the action was vindictive, but the train company has come out worse. It’s been a blight on my life for a long time and it’s a relief it’s all over. They tried to claim I should have known the tree had something wrong with it, which I think was unrealistic. The tree expert said the same thing.”

Ms Hind was headteacher at Heston Junior School in Hounslow (now Heston Primary School) from 1988 to 2011 before retiring.

She sold the early-Victorian house, Rose Cottage near Staines railway station and moved to Selsey in 2012.

No one was hurt in the accident shortly after midnight in December 2009 when the empty train, travelling at 40mph through Staines to its depot in Strawberry Hill, hit the branch of an elm tree which had snapped off and fallen on to the track in strong winds.

SWT also sued Andrew Steel, a tree surgeon who Ms Hind employed to carry out work in the garden three years before the accident. Lawyers for SWT, part of the Stagecoach group, insisted that Ms Hind had not paid sufficient attention to the state of the 150-year-old elm tree, claiming she should have spotted decay.

However, in the technology and construction court, Mr Justice Coulson attacked an expert arboriculturalist who provided an “inaccurate” and “misleading” report.

He said: “Ms Hind, an intelligent woman and a keen gardener with a working knowledge of trees, was portrayed in [the] reports as someone who did not care about this tree, or any of the trees in her garden at all, and had cheerfully let it all go to rack and ruin.

“I consider that this picture of Ms Hind was wholly misleading and inaccurate.”

The judge said the expert cut out a key phrase from his initial evidence to favour SWT’s case and he found his explanation for doing so “absurd”.

He also rejected the limited claim against the tree surgeon. Mr Steel, who runs A S Treecare, based in Sunbury-on-Thames, said: “I can’t believe that the case was brought against me. It’s been something that has been hanging over me and my wife for over two years.”

A spokesperson for South West Trains said: “A substantially sized tree of around 60ft in height fell from the householder's garden, causing extensive damage to one of our trains. The tree had split down the middle with one half coming down on to the railway line. As well as the significant costs and inconvenience to thousands of passengers when the train was out of service for several weeks, this accident could have caused serious injury to rail workers and passengers.

“Experts agreed that there was extensive decay within the tree which had been present for some years and which had caused a significant part of the tree to fall onto the railway line. The case raises important issues as to the extent of a householder's duty to inspect and take care of a tree next to the railway line.

“On the advice of legal teams, we have been looking to recover the costs associated with the accident from the public liability insurers of the householder and her tree surgeon.

"Attempts were made prior to the trial to reach agreement between the parties but we found it necessary to pursue the case when our preferred approach was not successful. We are disappointed with the outcome of the case, and are considering our next steps."

 

[jopsuk]

Some pretty strong words from the judge there regarding SWT's case

 

[Moonshot]

Did this happen on a branch line??!!

 

[GRALISTAIR]

Did this happen on a branch line??!!

Groan!

 

[gordonthemoron]

I would have it was quite reasonable for SWT/NR to try and recoup the costs from the householders/tree surgeons insurance

 

[Hebden Bridger]

The judge said the expert cut out a key phrase from his initial evidence to favour SWT’s case and he found his explanation for doing so “absurd”.

That's astonishing. As someone who appears as an expert witness (in a totally different area), I'd love to know what his explanation was.

If any client tried to pressurize me to change evidence to favour their case, I'd tell them where to go, this savaging by a judge means their credibility is completely gone.

 

[RichardN]

http://www.bailii.org/ew/cases/EWHC/TCC/2014/1891.html

If you want it without the spin.

 

[222001]

Trees fall over. Sometimes nobody is to blame. Unless this tree was basically falling down as it was.

 

[Hebden Bridger]

http://www.bailii.org/ew/cases/EWHC/TCC/2014/1891.html

If you want it without the spin.

Thanks for that, despite being one of the most tedious documents I've ever read in my life it was err most educational. How not to be an expert witness, unprofessional in approach, changing statements to favour of your client and then lecturing the court of matters of fact and law (the latter two are very much the courts job, not that of an expert witness, he was supposed to tell them about trees). What SWT's lawyers were doing letting this guy near a courtroom I don't know, had they briefed him that judges may get a little annoyed if a gardener (even an expert gardener) starts telling them their job?
--- old post above --- --- new post below ---

Trees fall over. Sometimes nobody is to blame. Unless this tree was basically falling down as it was.

You'll be pleased to know that after having read an extremely long and tedious summary of the evidence presented, that seems to me to be a very pithy summary of what the judge said the law was.

 

[bangor-toad]

HI there,
Thanks for the link. It was informative and interesting.

Thanks for that, despite being one of the most tedious documents I've ever read in my life it was err most educational.

Really? You should try some of the patent and intellectual property law cases then. Instant answer to insomnia for many...


Sadly I'm not too shocked by the "expert" witness as I've seen far, far worse but I am surprised that SWT took it this far. The law as laid out in the Judgement is actually pretty clear. The owner did all she was reasonably expected to do but sometimes trees fall down and you've just got to deal with it.
Mind you, the Judge did do a good job of destroying the expert's credibility. There was no ambiguity about the Judge's view point...

Why did SWT think that they had any reasonable chance of success? Were they relying on bullying the homeowner and the tree surgeon into a settlement? (Of course we'll never know the answers to those questions!)
Still, it does make you wonder...

Cheers,
Mr Toad

 

[FenMan]

As court documents go, this one is highly entertaining.

The judge's barbs about the meandering, inconsistent and contradictory case put forward by the prosecution contains some pure comedy gold. He also lays into the evidence given by SWT's expert witness. Ouch!

I particularly enjoyed Mr Justice Coulson's remark about the counsel for SWT:

"Notwithstanding the skill with which this argument was developed by Mr Meredith Hardy, I consider it to be hopeless in the context of this case."

Someone is going to get their backside kicked methinks ... this will have cost SWT a lot of money.

 

[Hebden Bridger]

It was the interminable summary of the evidence on the state of a tree that bored me to tears, I felt I should read it all to see exactly what this expert had said and done to be savaged by the judge. Yes the summing up is a bit like a good restaurant critic's review of a bad restaurant, all with a very dry sense of humour of course.

I can assure you that that my chosen subject - broadly disputes over IT contracts would not make an interesting session for Mastermind either, although I'm always quick to recommend someone else if IPR is going to be a significant factor.

 

[SpacePhoenix]

What root did it happen on?

 

[TEW]

The judge said the expert cut out a key phrase from his initial evidence to favour SWT’s case and he found his explanation for doing so “absurd”.

That's astonishing. As someone who appears as an expert witness (in a totally different area), I'd love to know what his explanation was.

If any client tried to pressurize me to change evidence to favour their case, I'd tell them where to go, this savaging by a judge means their credibility is completely gone.

There was a recent episode of Panorama on the subject of expert witnesses which may be on interest.

http://www.bbc.co.uk/iplayer/episode/b044p2gc/panorama-undercover-justice-for-sale

 

[DaveNewcastle]

. . . .

Someone is going to get their backside kicked methinks ... this will have cost SWT a lot of money.

It may have been costly, but I don't see that it would have been at all easy to anticipate the outcome.

The two torts of nuisance and negligence are strongly influenced by the ancient rights of property owners to enjoy their property without intrusions from their neighbours, and the rafts of common law support that position. The act of letting something from one property onto another is a common basis for claims, specifically where there are material damages, and irregardless of the knowledge of the party letting the thing escape, which could be as natural as rainwater.

I don't doubt that the Company would have been advised that they had a realistic prospect of success.

 

[Tetchytyke]

Why did SWT think that they had any reasonable chance of success? Were they relying on bullying the homeowner and the tree surgeon into a settlement?

I would guess that they assumed the insurance company for the homeowner and/or the tree surgeon would pay up, because an out-of-court settlement is often cheaper than litigation, even where you're in the right.

The fact that SWT's main witness was savaged by the court will probably mean that the insurance companies will recover all their costs from SWT.

 

[b0b]

I don't doubt that the Company would have been advised that they had a realistic prospect of success.

so SWT would have been advised by their expert witness, that the there was an intentional neglect, and decided to pursue action?

I'm a bit curious here, a neighbours tree once fell into our property and did substantial damage, and it was ruled an 'act of god' by the insurance companies and my insurance paid for my damage. (different laws etc but I'm just wondering if the basic premise applies)

Dave go easy on me, I know law is a thing that has very precise definitions

 

[Hebden Bridger]

There was a recent episode of Panorama on the subject of expert witnesses which may be on interest.

http://www.bbc.co.uk/iplayer/episode/b044p2gc/panorama-undercover-justice-for-sale

Thanks, I've seen it. I hope you don't think I'd act in that way. hock: To me there seems to be a fundamental problem in the criminal courts, when an expert witness's duty is to the court but they are often paid by a defendent (who is not going to pay someone whose evidence will prove him guilty). Even if instructed by lawyers, their duty is to get the best result for their client whatever the rights and wrongs of the case, which IMO is still pretty incompatible with the role of an expert witness. It seems to me that if the if the duty of an expert witness is to provide independent evidence to the court, they need to be paid by the court (which means the taxpayer, so is unlikely to happen).

Fortunately I don't deal in black/white guilty/not guilty criminal cases but fuzzy grey commercial disputes where both parties are to some degree culpable. And I'm in a position where I can make it clear that I much prefer to act as a "Single Joint Expert" and be truly independent.

 

[DaveNewcastle]

so SWT would have been advised by their expert witness, that the there was an intentional neglect, and decided to pursue action?

No. The negligence can be, and normally is, without intention. That's what the word means - we neglect something by not giving it our attention.

I'm a bit curious here, a neighbours tree once fell into our property and did substantial damage, and it was ruled an 'act of god' by the insurance companies and my insurance paid for my damage. (different laws etc but I'm just wondering if the basic premise applies)

One of the paradigm cases in the tort of negligence is Rylands v Fletcher which will be easy to find on any internet search. The principles there were that any person who keeps anything on their land (water, fire, minerals, trees, fumes, noise, etc) does so at their own peril and if they allow them to escape onto another's land, then they will be answerable for all the consequential damage of that escape.

It is a principle which underlies liabilities between neighbours everyday, though only those who are the proper land owners. Where the persons are not the proper land owners, then other statutes are more likely to apply.

 

[Hebden Bridger]

It may have been costly, but I don't see that it would have been at all easy to anticipate the outcome.

The two torts of nuisance and negligence are strongly influenced by the ancient rights of property owners to enjoy their property without intrusions from their neighbours, and the rafts of common law support that position. The act of letting something from one property onto another is a common basis for claims, specifically where there are material damages, and irregardless of the knowledge of the party letting the thing escape, which could be as natural as rainwater.

I don't doubt that the Company would have been advised that they had a realistic prospect of success.

I know we come from very different backgrounds, but we are talking about the real commercial business world here Dave. When I was a commercial manager rather than a semi-retired consultant, I'd have been reponsible for making decisions about disputes like this.

And if I'd made a decision to go ahead with a prosecution in this case, which not only cost the company money but resulted in a savaging like this from a judge I'd expect to receive a good kicking and be heading for the exit door, irrespective of the "advice" received from lawyers.

I should obviously have employed better lawyers, so I'd deserve what I get. You can't go round blaming the inadequacy of those you've working for you either you've appointed them or you should have got rid of them. You're paid to make difficult decisions and get the right results.

Thats the real world for you.

 

[DaveNewcastle]

I just want to endorse the sentiment of this post:

I should obviously have employed better lawyers, so I'd deserve what I get. You can't go round blaming the inadequacy of those you've working for you either you've appointed them or you should have got rid of them. You're paid to make difficult decisions and get the right results.

I agree. Choosing appropriate counsel is vital, and comprehensive briefing moreso (though horribly often is inadequate). But these criteria are exactly what 'the real world' demands, not an intellectual argument, not even good odds, but absolute assurances.

Sadly, taking a dispute to Law doesn't provide one of those.
But it is rather good at the intellectual argument and the speculation on odds!

Having said that. and having observed and/or been involved in similar disputes, the rule from Rylands and Fletcher (see my post above) appears to be very robust in the face of vigourous challenge - i.e. the injured land owner succeeds in a claim against the negligent land owner.

 

[TEW]

Thanks, I've seen it. I hope you don't think I'd act in that way. hock: To me there seems to be a fundamental problem in the criminal courts, when an expert witness's duty is to the court but they are often paid by a defendent (who is not going to pay someone whose evidence will prove him guilty). Even if instructed by lawyers, their duty is to get the best result for their client whatever the rights and wrongs of the case, which IMO is still pretty incompatible with the role of an expert witness. It seems to me that if the if the duty of an expert witness is to provide independent evidence to the court, they need to be paid by the court (which means the taxpayer, so is unlikely to happen).

Fortunately I don't deal in black/white guilty/not guilty criminal cases but fuzzy grey commercial disputes where both parties are to some degree culpable. And I'm in a position where I can make it clear that I much prefer to act as a "Single Joint Expert" and be truly independent.

No, certainly not! You've hit one of the key problems with expert evidence in criminal trial there. Experts aren't really selected by parties for their impartiality, but for how much they support their case. An expert may be very convincing to the jury, but wrong. Ideally we'd have independent court appointed experts, but that is at odds with our adversarial legal system which allows both parties to present evidence and challenge eachother's evidence. If there was just one expert in a trial it would be difficult for either party to effectively challenge their evidence. A relatively simple change which is probably needed is tighter regulation of expert witnesses.

 

[Hebden Bridger]

Sadly, taking a dispute to Law doesn't provide one of those.
But it is rather good at the intellectual argument and the speculation on odds!

Having said that. and having observed and/or been involved in similar disputes, the rule from Rylands and Fletcher (see my post above) appears to be very robust in the face of vigourous challenge - i.e. the injured land owner succeeds in a claim against the negligent land owner.

In this case, a High Court judge doesn't even mention Rylands vs Fletcher, although he does mention around a dozen other precedents. If a High Court Judge and a bloke on the internet disagree on matters of law, I know who I find the more credible.:roll:

One of the paradigm cases in the tort of negligence is Rylands v Fletcher which will be easy to find on any internet search. The principles there were that any person who keeps anything on their land (water, fire, minerals, trees, fumes, noise, etc) does so at their own peril and if they allow them to escape onto another's land, then they will be answerable for all the consequential damage of that escape.

It is one of the ironies of this case is there was little hard evidence about the state of the tree because it "was covered in dense ivy which had grown from under, over and through the fence from the railway line". Seems fair enough to me if the railway is concerned about trees dropping on railway lines, they really shouldn't let their crap escape into people's gardens.
--- old post above --- --- new post below ---

No, certainly not! You've hit one of the key problems with expert evidence in criminal trial there. Experts aren't really selected by parties for their impartiality, but for how much they support their case. An expert may be very convincing to the jury, but wrong. Ideally we'd have independent court appointed experts, but that is at odds with our adversarial legal system which allows both parties to present evidence and challenge eachother's evidence. If there was just one expert in a trial it would be difficult for either party to effectively challenge their evidence. A relatively simple change which is probably needed is tighter regulation of expert witnesses.

I agree tighter regulation would improve the situation, but as a member of TAE I don't want to go into any detail in a public forum. But again tighter regulation (and certainly regulation which would exclude the cowboys featured on Panaroma) would cost serious amounts of money and I've never heard a satisfactory answer to the question of where that is that to come from? I'd be quite happy to pay significantly higher membership fees, but a lot of the members are only on the sort of fees mentioned on Panorama.

 

[DaveNewcastle]

In this case, a High Court judge doesn't even mention Rylands vs Fletcher, although he does mention around a dozen other precedents. If a High Court Judge and a bloke on the internet disagree on matters of law, I know who I find the more credible.:roll:

Indeed, but as I said, the principles outlined in Rylands v Fletcher form the paradigm for an 'escape' of something from one person's land onto another - it has been refined in other subsequent judgements where more specific details have been brought into the balance.

The Judge in this matter was at liberty to cite those authorities which had been presented by counsel, though interestingly many Judges will introduce their own authorities during debate, though not in the Judgement unless they had been mentioned in Court. The authorities cited are those that were presented in this matter brought by SWT. You will see that Rylands v Fletcher is in fact referred to in some of the authorities which are cited, specifically in Noble v Harrison and Goldman v Hargrave. Noble v Harrison is interesting as it specifically excluded trees from the scope of Rylands for the reason that the tree was a natural object occurring through the ordinary use of the land. (see Sedleigh-Denfield v O'Callagan for fuller exploration of this distinction). I'll quote from Noble v. Harrison [1926] 2 K.B. 332 where damage was caused by an overhanging tree with a latent defect and the decision was against liability. The judgment of Rowlatt J. contains this passage:

"a person is liable for a nuisance constituted by the state of his property (1) if he Causes it; (2) if by neglect of some duty he allowed it to arise; and (3) if. when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he did or ought to have become aware of it." This judgement flows naturally from Rylands v Fletcher.

However, the exception in Noble raises doubt as to whether a negligent landowner who fails to detect and remedy a decaying and hazardous tree is making ordinary use of the land. This is where SWT could have expected to achieve success in their claim against the landowner, Ms Hind.

 

[Cliveblackpool]

Imo Network rail should identify those potential hazards to the railway. Large trees, or species of tree that may in future be a danger, with the cooperation of the landowner, should be removed or pruned. (at the railway's expense)
I assume power companies must have a similar problem, haven't seen people being sued in that industry.

 

[Busaholic]

Did this happen on a branch line??!!

Yes, Poplar

 

[Starmill]

Sounds like a very strange basis for a claim by SWT to me...