Q: Am I to blame for fall­ing branch?

MCN - - LIFE ON BIKES -

I was in­volved in a freak ac­ci­dent on May 27. A huge branch just dropped off a tree into the road right in front of me. I braked but hit it and came off. My in­surer says I will be classed as at fault. Surely, that can’t be right?

Wal­ter Duroe, email

A: You will need to find out who owns the tree. Then there is a le­gal test to ap­ply. The owner of the tree is un­der a duty of care to act in the man­ner to be ex­pected from a rea­son­able and pru­dent landowner. The owner is not li­able for an act of God, such as light­ning. The dan­ger must be of a kind that is ap­par­ent to the or­di­nary lay­man. In other words: which an or­di­nary per­son can see with their own eyes. Fi­nally, a rea­son­able and pru­dent landowner must carry out pre­lim­i­nary/in­for­mal in­spec­tions of trees on a reg­u­lar ba­sis and only if these in­spec­tions re­veal a prob­lem,

‘You will need a tree ex­pert to com­pile a re­port’

is the landowner un­der any duty to ar­range for checks by a tree ex­pert.

So, the owner’s duty ex­tends no fur­ther than the car­ry­ing out of pe­ri­odic ob­ser­va­tions of trees. In your case, it will de­pend if there was any­thing that should have alerted the owner to the tree be­ing any­thing other than healthy, or that it re­quired a closer in­spec­tion by an ex­pert. In or­der for you to find out if you can suc­ceed, you will need to in­struct a tree ex­pert to pre­pare a re­port on whether or not the dan­ger of fall­ing branches was rea­son­ably fore­see­able had the tree been pe­ri­od­i­cally checked.

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