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    NO BLAME IF RISK ASSESSMENT ‘PROVED WRONG BY EVENTS’

    Landowner cleared of negligence over death whilst HSE take action elsewhere

    The High Court has found the National Trust was not negligent in respect of the death of child who died when struck by a falling tree branch in Norfolk in 2007.

    Meanwhile,  in Cambridgeshire HSE inspectors investigating the death of the 13-year-old schoolgirl have recently issued an improvement notice to Yaxley Parish Council. The girl died at a Recreation Ground on June 30 2011 after a branch fell from a 50ft-high tree she was sitting beneath. A further branch fell from the tree the following week.

    Paul Carter, HSE Principal Inspector said:

    “The HSE served an improvement notice on Yaxley Parish Council on July 14 requiring it to make arrangements for the safe management of its tree stock. HSE will review its progress in achieving this in early August. There is a 21-day right of appeal and during this time it is inappropriate for HSE to comment further.”

    Judge rules that National Trust “not negligent”

    The High Court ruled that the National Trust was not to blame for the death of an 11-year-old schoolboy fatally crushed by a branch in woods in Norfolk. Daniel Mullinger, of West Bergholt, Essex, died and three children were injured at Felbrigg Hall, near Cromer, when the branch fell from a tree in 2007.

    Daniel died instantly when the 21m branch fell from a 180-year-old beech tree in the Great Wood at the 17th Century stately home. His mother and three other families had sought compensation from the landowner, the National Trust. But all have lost their damages action. In a statement released through their solicitor the families said that it was “a difficult decision to accept”.

    “The path where the accident occurred was upgraded to a medium risk path specifically because the paths under the tree were used by about 4,000 school children a year on organised trips. The families are very disappointed with the decision but it is unlikely there will be an appeal. Four years on this incident remains a very personal tragedy for the four families involved.”.

    Lawyers argued that the tragedy would have been averted had inspectors spotted a defect in the ancient beech tree and “tagged” it for remedial action. Mr Justice Mackay said the decision that no action was needed in the event proved “wrong and disastrous consequences followed”.

    Risk assessment can be proved wrong by events

    Ruling in favour of the National Trust, the judge said it was “the cruelest coincidence” that the branch just happened to fall just as the school party passed beneath it. He added that even the most careful risk assessment can “by its very nature be proved wrong by events”. He also remarked that assessing the integrity of an ancient tree was “an art not a science”.

    He concluded:

    “I accept these inspectors used all the care to be expected of reasonably competent persons doing their job, and the National Trust had given them adequate training and instruction in how to approach their task. I regretfully conclude that I cannot find that the National Trust was negligent or in breach of its duty in respect of this tragedy”.

    National Trust spokesman Nick Champion said:

    “We hope that the case has provided some sense of relief and greater understanding. The judge ruling for the National Trust in no way undermines the great sense of personal tragedy that must be felt and our sympathies are with the families involved. It is important to the Trust that Mr Justice Mackay found our policies to be clear, robust and comprehensive. And we were reassured to hear that he felt that our tree inspections had been carried out competently.”

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