Tree Safety, Risk and Duty of Care
Everybody who owns trees, or is responsible for them, has a general duty of care to take reasonable steps to ensure they do not pose an unacceptable risk. No tree in proximity to people or property can be considered completely safe - but they rarely cause harm. If resources are to be expended proportionately, any intervention should reflect the level of risk a tree might present as well as the benefits it provides. Hearne Arboriculture will focus first on the use of the land where the tree is situated in order to inform the degree of rigour to which the trees might reasonably be inspected and the need for any intervention, thus providing defendable risk management at low cost without unnecessary and undesirable loss of trees. Hearne Arboriculture carries £1 million professional indemnity insurance.
John Hearne is a trained and 'Registered User' of the Quantified Tree Risk Assessment method.
John Hearne is a trained and 'Registered User' of the Quantified Tree Risk Assessment method.
Individual Tree Safety
If you have concerns about particular trees, a thorough assessment of health and structural integrity can be undertaken. An initial inspection using visual tree assessment (VTA) principals would identify if and where further investigations are warranted. This includes:
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Managing Tree Populations
A key objective for most owners and managers is to maintain a defendable position at the lowest cost while avoiding undesirable loss of valued trees. Defendable management is consistent with a duty of care based on reasonable care, reasonable likelihood and reasonable practicability. This requires knowledge of the trees, their setting and how people use their land, the benefits that trees bring and their structural features.
A reasonable and balanced approach forms the basis of a tree safety strategy for sensible tree safety management. A plan that guides management decisions and practice, in a reasonable and cost-effective way, will typically cover three essential aspects: Zoning: Identifying higher and lower risk areas by virtue of the trees' locations and surrounding land use. Tree inspection: assessing obvious tree defects Managing risk at an acceptable level: identifying, prioritising and undertaking safety work according to the level of risk. |
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In recent years, many owners and managers of trees have been seeking clear and concise guidance on what is expected of them in terms of fulfilling their moral and legal responsibilities with respect to the trees on their estate or property.
There is a pervasive perception in today’s risk-averse society that the decisions people may make about the safety of trees on their land could result in an incident with serious legal and financial consequences, not to mention injury or loss of life. In 2011 the National Tree Safety Group published guidance for inspecting and maintaining trees that is intended to be reasonable and proportionate to the low risk from trees, the benefits of trees, and the health and safety obligations of those responsible for trees. As a national guidance document produced by an authoritative and representative group, its content and recommendations, if followed, should assist trees owners involved in personal injury or compensation claims when presented to the court as supporting documentation. Read 'Common sense risk management of trees' |
Case law
Court cases involving harm caused by trees have not given the clearest of guidance. The ultimate test will be whether those responsible for the trees did what was reasonable to reduce risk to an acceptable level. In practice, what is reasonable will be determined by the courts depending on the circumstances of the particular case. Material factors include, but are not limited to, type, size, age and position of a tree; its proximity to people or property that might be harmed, volume of traffic, the size of a landowner's estate and the resources available to the owner. Some notable cases with links to further information are given below:
Poll v Bartholomew (2006): This case involved a motorcyclist who sustained injury when colliding with a fallen tree. The experts advising the court identified 3 levels of tree inspection, generalist (requiring no specialist tree knowledge), competent (requiring training, expertise and qualifications to enable identification of hazards, assessment of risk and make appropriate recommendations), and expert (the highest levels of skills and knowledge). The tree had been subject to level 1 inspection but the court found that a level 2 inspection was appropriate to a roadside tree. The court found for the claimant. Read the judgement here |
Atkins v Scott (2008): This case involved the failure of the branch of an Oak tree which fell on a passing car, injuring its driver. There was no recorded or formal system of tree inspection at the estate. Estate staff with good knowledge and experience of the estate trees noted and reported problems as part of their day-to-day work moving around the property. The Judge accepted this was adequate in the circumstances and found for the defendant - whilst noting that the 'informality of the system had the disadvantage of making it difficult for the estate to resist claims'. Read the judgement here Bowen & Others v The National Trust (2011): A tragic case arising from the failure of a large limb from a Beech tree at the National Trust's Felbrigg Hall in Suffolk, resulting in the death of a child and serious injury to three others. The Trust had provided training for employees in inspecting trees and a formal system of inspections was in place. Frequency of inspection and reporting of potential hazards was dependent upon within which of three 'risk zones' a tree was located. The Beech tree had been previously inspected and any features that indicated a potential weakness of the branch would have been evident at that time. The thrust of the case was that the tree inspectors, for whom the Trust was vicariously liable, had failed to exercise due care in their task. It was found that the Trust's procedures were reasonable and that the inspectors had exercised due diligence. In light of the tree's location in a lower risk zone, the fact that the children were sheltering under the tree at the precise moment that the branch failed was described as 'the cruelest coincidence' and no negligence was found. Read the judgement here |