Q: Am I to blame for falling branch?

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.