Paralysed tree surgeon claims damages against National Trust

The Argus: Morden Hall Park Morden Hall Park

A tree surgeon paralysed after falling 50 feet from an ancient horse chestnut is suing the National Trust.

Jamie Yates, of Carleton Road, Chichester, was injured while working on Trust land at Morden Hall Park in south west London in December 2009.

Christopher Wilson-Smith QC, told Mr Justice Nicol at the High Court that Mr Yates, 26, had no memory of the "catastrophic" accident which has left him in a wheelchair.

He was using a chainsaw on the decayed and infected 80 feet high tree which was nearing the end of its life and it was probable that a branch he was using as an anchor point for his safety rope snapped.

Mr Wilson-Smith said that Mr Yates, who was self-employed and working for an independent contractor, had never dismantled a tree of such height before and did not have the certificate that would have qualified him to carry out sectional felling.

The court must establish whether the Trust was liable to instruct contractors, none of whom had appropriate certification.

National Trust denies negligence or breach of duty.

Comments (12)

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11:58am Tue 10 Dec 13

RottingdeanRant says...

How can the NT be responsible? As a self employed contractor should he not be responsible for his actions? If not him then surely the contractor that employed him is?
How can the NT be responsible? As a self employed contractor should he not be responsible for his actions? If not him then surely the contractor that employed him is? RottingdeanRant

12:05pm Tue 10 Dec 13

power_ranger says...

I think he should leaf the national trust alone.
I think he should leaf the national trust alone. power_ranger

2:01pm Tue 10 Dec 13

The Prophet of Doom says...

Surely he wasn't sitting on the end of the branch about to drop after being sawn?

Why were his credentials not checked prior to commencing work?
Surely he wasn't sitting on the end of the branch about to drop after being sawn? Why were his credentials not checked prior to commencing work? The Prophet of Doom

2:17pm Tue 10 Dec 13

Hove Ex-Pat says...

So his brief agrees that he was not competent to do the job required, but he took on the contract anyway, & that makes it, in his opinion, the NT's problem. No, I think he's out on a limb there.
So his brief agrees that he was not competent to do the job required, but he took on the contract anyway, & that makes it, in his opinion, the NT's problem. No, I think he's out on a limb there. Hove Ex-Pat

6:51am Wed 11 Dec 13

TonyJM says...

No doubt, unlike others here, the Judge will have the wisdom to wait until he hears all the evidence before reaching a conclusion on the matter...
No doubt, unlike others here, the Judge will have the wisdom to wait until he hears all the evidence before reaching a conclusion on the matter... TonyJM

8:47am Wed 11 Dec 13

Juleyanne says...

Tragic accident indeed. However, high risk profession. Surely he was insured or his company was? Some insurance companies do not like insuring high risk professions and if they do premiums are high.








Tragic accident but a high risk profession, wonder if he or his employer was insured?
Tragic accident indeed. However, high risk profession. Surely he was insured or his company was? Some insurance companies do not like insuring high risk professions and if they do premiums are high. Tragic accident but a high risk profession, wonder if he or his employer was insured? Juleyanne

1:17pm Wed 11 Dec 13

lovethegreens says...

The National Trust have a duty to ensure that they employ competent contractors but also this guy's employer should have made sure he was adequately trained and had done a proper risk assessment prior to starting work. I would also question how responsible he is for his own injuries as he would have been fully aware of his lack of experience.
The National Trust have a duty to ensure that they employ competent contractors but also this guy's employer should have made sure he was adequately trained and had done a proper risk assessment prior to starting work. I would also question how responsible he is for his own injuries as he would have been fully aware of his lack of experience. lovethegreens

2:40pm Wed 11 Dec 13

mgeden says...

Whilst the results of this acident have had tradgic consequences, does the young man not have to hold some of the responsibility of what happened. All to often the blame lies with the institute that wants the work carried out. they commissioned a firm of tree surgeons to remove a large tree. They in turn subbed out the work to a person not qualified to do the work.
Why is it the fault of the client he was not qualified?
Section 3 of the Heath and Safety at Work etc. Act 1974 states we are responsible for our own H&S and that of others by our actss or ommissions.
If the Client had been a private individual would the injured party still be trying to claim conpensation? I do not think so.
Lets hope the Judge makes a sensible descision on this case.
Whilst the results of this acident have had tradgic consequences, does the young man not have to hold some of the responsibility of what happened. All to often the blame lies with the institute that wants the work carried out. they commissioned a firm of tree surgeons to remove a large tree. They in turn subbed out the work to a person not qualified to do the work. Why is it the fault of the client he was not qualified? Section 3 of the Heath and Safety at Work etc. Act 1974 states we are responsible for our own H&S and that of others by our actss or ommissions. If the Client had been a private individual would the injured party still be trying to claim conpensation? I do not think so. Lets hope the Judge makes a sensible descision on this case. mgeden

8:28pm Wed 11 Dec 13

TonyJM says...

Anyone not listening to the evidence will not understand the case. The National Trust have shown themselves to be incompetent, not least by taking on an incompetent, uninsured and under-qualified contractor, who should never have sent Jamie up that tree. Jamie was just turned 22 and, although 'self-employed', only worked for the one guy. He had basic qualifications and did as he was told.

"If the Client had been a private individual would the injured party still be trying to claim compensation?" He wouldn't have been doing the job - it was because it was on National Trust land that Jamie felt it would be okay - he couldn't let them down and believed that they wouldn't let him down.

"Lets hope the Judge makes a sensible decision on this case." Yes, let's hope so.
Anyone not listening to the evidence will not understand the case. The National Trust have shown themselves to be incompetent, not least by taking on an incompetent, uninsured and under-qualified contractor, who should never have sent Jamie up that tree. Jamie was just turned 22 and, although 'self-employed', only worked for the one guy. He had basic qualifications and did as he was told. "If the Client had been a private individual would the injured party still be trying to claim compensation?" He wouldn't have been doing the job - it was because it was on National Trust land that Jamie felt it would be okay - he couldn't let them down and believed that they wouldn't let him down. "Lets hope the Judge makes a sensible decision on this case." Yes, let's hope so. TonyJM

8:44am Sat 14 Dec 13

Jumpin Jack Flash says...

Quite right TonyJM. A large organisation like the NT cannot simply abdicate all responsibility for health and safety issues by saying "It is the contractor who should ensure any sub-contractors working with him have all the relevant insurances, certificates and experience." That suggests they are not all interested in the status of sub-contractors: not one bit. Which common sense says they should be! If you were an airline you would not employ sub-contracted pilots on the basis that a 'middle-man' was checking they actually had the competence to fly a plane - you would want to check that detail yourself! And if that middle man was himself deficient in several ways, then relying on his judgement to appoint those pilots would mean you are guilty of negligence yourself in regard to his appointment as middle-man.
We should all be worried that we are walking around NT properties where work is being carried out by insufficiently qualified and experienced sub-contractors: roofers, electricians, builders, tree surgeons – whoever: and none of them have any Public Liability Insurance and the NT says “None of our business! It is nothing to do with us! Speak to the contractor!” If we get electrocuted or a wall falls on us or we get hit by a falling roof tile, then we can sue….who? The contractor? Who declares himself bankrupt the day after our accident? Or the NT who say “None of our business! Talk to the sub-contractor!”
The NT save money by driving down the cost of works through contracting out work. If they are turning a blind eye to deficiencies in the status of sub-contractors who - in order to put in a cheap quote (as it costs more to employ people with all the correct certificates, insurances and experience: rather than a eager young man keen to earn a few quid like the guy in this story who was lacking all 3 things) - then the NT are banged to rights and should be made to pay up. It will teach them a lesson and drive standards up. And this guy will be able to live his life with some dignity.
Quite right TonyJM. A large organisation like the NT cannot simply abdicate all responsibility for health and safety issues by saying "It is the contractor who should ensure any sub-contractors working with him have all the relevant insurances, certificates and experience." That suggests they are not all interested in the status of sub-contractors: not one bit. Which common sense says they should be! If you were an airline you would not employ sub-contracted pilots on the basis that a 'middle-man' was checking they actually had the competence to fly a plane - you would want to check that detail yourself! And if that middle man was himself deficient in several ways, then relying on his judgement to appoint those pilots would mean you are guilty of negligence yourself in regard to his appointment as middle-man. We should all be worried that we are walking around NT properties where work is being carried out by insufficiently qualified and experienced sub-contractors: roofers, electricians, builders, tree surgeons – whoever: and none of them have any Public Liability Insurance and the NT says “None of our business! It is nothing to do with us! Speak to the contractor!” If we get electrocuted or a wall falls on us or we get hit by a falling roof tile, then we can sue….who? The contractor? Who declares himself bankrupt the day after our accident? Or the NT who say “None of our business! Talk to the sub-contractor!” The NT save money by driving down the cost of works through contracting out work. If they are turning a blind eye to deficiencies in the status of sub-contractors who - in order to put in a cheap quote (as it costs more to employ people with all the correct certificates, insurances and experience: rather than a eager young man keen to earn a few quid like the guy in this story who was lacking all 3 things) - then the NT are banged to rights and should be made to pay up. It will teach them a lesson and drive standards up. And this guy will be able to live his life with some dignity. Jumpin Jack Flash

9:55am Sat 14 Dec 13

Jumpin Jack Flash says...

mgeden says - “..they commissioned a firm of tree surgeons to remove a large tree. They in turn subbed out the work to a person not qualified to do the work. Why is it the fault of the client he was not qualified?”

Because the subbie had no PLI (insurance), adequate certification and experience. The NT either failed in their duty to check this directly or they failed in their duty to check with the main contractor that he had ensured it was all in place. They turned a blind eye. It in fact seems the main contractor may have had personal connections within the NT that allowed him to get the job in the first place which suggests the NT by-passed their usual checks.

However...

Imagine you went to an ‘NHS dentist surgery’ for treatment. In fact, the dentist who carried out your treatment was a ‘sub-contracted’ dentist working for the ‘contracted’ dentist who was not employed by the NHS but contracted to do work for the NHS (as most dentists are). The sub-contracted dentist does bad work on your teeth and you suffer some sort of damage. You discover the dentist who worked on your teeth was not actually qualified to do the dentistry you needed – even the contracted dentist was not. You would assume you could sue the NHS wouldn’t you? They in fact say, “Actually you need to sue the dentist who did the work” and you found he had no Public Liability Insurance. He is also a ‘man-of-straw’ not worth a penny. Who then would you sue? The main contractor declares himself bankrupt as soon as it happens and goes out of business. His PLI is not worth a jot as it only covered him, not the subbie.

“If the Client had been a private individual would the injured party still be trying to claim conpensation? I do not think so”

If you are a private individual and you engage a contractor to carry out work on your property and they are injured because they are insufficiently trained, qualified etc. then the private individual is protected from being sued as you can rely on the fact that you believed the contractor to be adequately qualified as they had told you that was the case and you believed it to be so. If you are a company or organisation who employs the same contractor over several years for lots of work then this is a different relationship than a private individual: where it is a ‘one-off’ and the private individual cannot be expected to be knowledgeable about the industry-specific qualifications etc. that may be required for that type of work. A large organisational does have that responsibility!

However in your scenario, i.e. a private householder, then we all carry home insurance (or should do!) to cover being sued. If you engaged a contractor who was injured due to your negligence then the contractor could sue you and you would claim on your insurance (if you had any). For example, you engage a gardener but fail to tell him there is a well - hidden under some thin boards - he steps on the boards, falls down the well and injures himself. You knew the well was there but failed to warn him. I think he would have a case against you.
mgeden says - “..they commissioned a firm of tree surgeons to remove a large tree. They in turn subbed out the work to a person not qualified to do the work. Why is it the fault of the client he was not qualified?” Because the subbie had no PLI (insurance), adequate certification and experience. The NT either failed in their duty to check this directly or they failed in their duty to check with the main contractor that he had ensured it was all in place. They turned a blind eye. It in fact seems the main contractor may have had personal connections within the NT that allowed him to get the job in the first place which suggests the NT by-passed their usual checks. However... Imagine you went to an ‘NHS dentist surgery’ for treatment. In fact, the dentist who carried out your treatment was a ‘sub-contracted’ dentist working for the ‘contracted’ dentist who was not employed by the NHS but contracted to do work for the NHS (as most dentists are). The sub-contracted dentist does bad work on your teeth and you suffer some sort of damage. You discover the dentist who worked on your teeth was not actually qualified to do the dentistry you needed – even the contracted dentist was not. You would assume you could sue the NHS wouldn’t you? They in fact say, “Actually you need to sue the dentist who did the work” and you found he had no Public Liability Insurance. He is also a ‘man-of-straw’ not worth a penny. Who then would you sue? The main contractor declares himself bankrupt as soon as it happens and goes out of business. His PLI is not worth a jot as it only covered him, not the subbie. “If the Client had been a private individual would the injured party still be trying to claim conpensation? I do not think so” If you are a private individual and you engage a contractor to carry out work on your property and they are injured because they are insufficiently trained, qualified etc. then the private individual is protected from being sued as you can rely on the fact that you believed the contractor to be adequately qualified as they had told you that was the case and you believed it to be so. If you are a company or organisation who employs the same contractor over several years for lots of work then this is a different relationship than a private individual: where it is a ‘one-off’ and the private individual cannot be expected to be knowledgeable about the industry-specific qualifications etc. that may be required for that type of work. A large organisational does have that responsibility! However in your scenario, i.e. a private householder, then we all carry home insurance (or should do!) to cover being sued. If you engaged a contractor who was injured due to your negligence then the contractor could sue you and you would claim on your insurance (if you had any). For example, you engage a gardener but fail to tell him there is a well - hidden under some thin boards - he steps on the boards, falls down the well and injures himself. You knew the well was there but failed to warn him. I think he would have a case against you. Jumpin Jack Flash

10:08am Sat 14 Dec 13

Jumpin Jack Flash says...

It is a simple question: "Is it not the duty of the NT to ensure that ALL workers working on its property whether employed, contracted or sub-contracted, have adequate training, certification and insurance to carry out the work they are undertaking?"

If the answer is "Yes" then they have failed in that duty.

If the answer is "No" then I would suggest that you do not venture forth onto NT property this weekend as there may be untrained, uninsured workers working around you! And the NT don't care!
It is a simple question: "Is it not the duty of the NT to ensure that ALL workers working on its property whether employed, contracted or sub-contracted, have adequate training, certification and insurance to carry out the work they are undertaking?" If the answer is "Yes" then they have failed in that duty. If the answer is "No" then I would suggest that you do not venture forth onto NT property this weekend as there may be untrained, uninsured workers working around you! And the NT don't care! Jumpin Jack Flash

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