Terrible accidents do occasionally happen to visitors when they are on someone else’s property. The death of a woman hit by a tree branch when visiting Kew Gardens in September 2012 provides a horrifying example of the sorts of freak accidents that can occur.
Such misfortunes serve as a reminder of the risks that property owners and visitors are exposed to by these types of events. In June 2014 the West London Coroners Court concluded that the victim of the tragedy at Kew Gardens, Erena Wilson, 31, from Hanwell, west London died from accidental death but Kew Gardens faced considerable scrutiny over the condition of its trees during the hearing.
Understanding the reasoning of these types of cases can help property owners better understand their responsibilities and hopefully reduce the risks of similar tragedies in future.
Kew Gardens Tragedy
Erena Wilson suffered severe head injuries and later died after a large branch from a Lebanese cedar tree fell on top of her during a birthday party at Kew Gardens. During the inquest into her death John McLinden QC, acting for the family, told the jury that the risk of a phenomenon known as summer branch drop had increased due to recent heavy rain that followed a long dry spell. An expert appointed by the family suggested that the accident could have been prevented if the tree had been pruned.
John McLinden QC also noted that Kew Gardens had been aware of the summer branch drop phenomenon but had done nothing to warn the public about the danger nor had it fenced off the tree. Tony Kirkham, the head of the arboretum at Kew Gardens told the inquest that he believed that the falling branch was caused by strong wind and heavy rain rather than summer branch drop.
Following the evidence the jury found that there was “insufficient evidence to establish the cause of the branch failure”.
Kew Gardens owed a duty to visitors to take reasonable care in order to ensure that visitors were reasonably safe when visiting their gardens.
The duty is similar to the duty of care provided by the common law duty in tort but it was codified in legislation by the Occupiers’ Liability Act 1957. Section 2(2) provides that, “The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
The Act does not place a duty upon occupiers for any risks that visitors willingly accept as theirs when they enter onto the property.
Therefore landowners that have taken reasonable steps to keep visitors reasonably safe should find that they have satisfied their duty of care. As a precaution, it is wise to ensure that suitable liability insurance policies are put in place, particularly where land is open to the public.