Tree Consultancy Group is an independent arboricultural practice which carries out professional tree surveys for safety and risk management in the Scottish Borders, Edinburgh and the Lothians.
WHAT IS TREE RISK MANAGEMENT ?
There has been widespread concern in recent years about managing the risk from trees in regard to public safety. This is partly because of our more risk-averse society and the increasing expectations of professional arboriculturists, but also because those responsible for trees justifiably fear litigation following several court judgements against them.
This fear is fuelled by a belief that the risk of tree-related accidents is greater than it actually is. There is also uncertainty as to what the courts may require following a tree-related accident. These fears have led many landowners and managers to seek to avoid future liabilities by felling healthy trees. Whilst understandable, given the confused position, the result has been detrimental to the environment and is wasteful of duty holders' resources.
Tree risk management seeks to identify those trees where it is reasonably foreseeable that harm will arise in the future due to their condition, assess the level of the risk to determine whether any intervention is justifiable and if it is, to specify only the necessary measures required to eliminate it or reduce it to an acceptable level.
THE DUTY OF CARE
In general terms, the duty of care owed by a person responsible for a tree (the duty holder) is to take reasonable care to ensure, as far as is reasonably practicable, that people entering onto or passing by the property do not suffer injury or damage as a result of any act or omission which could reasonably have been foreseen. The duty holder (who is generally the owner, occupier or manager of the property or land on which the trees grow) may be held liable for physical harm or damage arising from an accident to a third party where the cause of the accident was both reasonably foreseeable and reasonably preventable. There is no obligation to ensure the safety of others or the safety of trees, merely to take reasonable care to provide reasonable safety.
The duty of care and the concept of reasonableness form the basis of The Occupiers Liability (Scotland) Act 1960. At Section 2 (1), the Act states: "The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall ........be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger".
The requirement to take reasonable care is also central to the Health and Safety at Work etc. Act 1974. The Act requires businesses to ensure that risks to third parties are reduced as far as is reasonably practicable. Section 3 (1) of the Act, states: "It shall be the duty of every employer to conduct his undertaking in such a way to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their health or safety”.
REGULAR SAFETY INSPECTIONS
While the law appears to tolerate a certain level of risk in relation to trees, it is with the proviso that some form of regular safety inspection is carried out. When an accident does occur, the absence of any regular inspection is only considered defensible in situations where the trees are in a remote location with minimal public access.
In all other situations, the courts consider that the duty holders should be aware of the condition of their trees and take steps to manage them in an appropriate and responsible manner. The degree of what may be considered appropriate varies, according to the circumstances. A greater degree of rigour is expected from those responsible for sites with considerable public access (for example, Local Authorities and estates open to the public) than from private householders. In general terms, the level of care expected will depend on the size and type of holding involved, but all are expected to act in a proportionate and reasonable manner.
Unfortunately, there is no hard and fast rule as to what is proportionate and reasonable. In any given case it will be the court which decides what was reasonable in the circumstances and who, if anybody, is liable. However, past judgements are fairly consistent and are of interest to duty holders in that they indicate what has been expected in the past when cases have gone to court. The general principles of liability appear to be:
- where a tree was not inspected - the duty holder would generally be liable if the causative defect would have been apparent in the course of a visual inspection. If the defect would not have been apparent, the duty holder would generally not be held liable, even though no inspection was carried out.
- where a tree was inspected - the duty holder would generally not be held liable if the causative defect was not apparent. Where the defect would have been apparent but no action was taken, or if the defect was not identified, the duty holder would generally be liable.
It is generally possible for most tree owners to recognise obvious signs of weakness or defects without formal training. Numerous leaflets and textbooks are available on the subject and can be easily found in many bookshops and on the internet e.g. from the Forestry Commission. However, if owners feel they are not sufficiently confident in their ability to recognise all the signs of significant defects, they should seek expert advice. Duty holders and/or their professional advisers should bear in mind that in the event of an accident, they should be prepared to justify their actions and defend their decisions in court.
We provide:
- Tree safety surveys to ensure compliance with the duty of care imposed by the Occupiers' Liability (Scotland) Act 1960 and the Health and Safety at Work , etc. Act 1974.
- Tree risk assessment and management in accordance with HSE recommendations and NTSG Guidance.
- Expert Witness representation for clients.
Our clients include Local Authorities, councils, charities, private estates, housing and residents associations, architects, planners, solicitors, insurers, property owners and managers.
We do not carry out tree work (tree surgery) or felling ourselves, and are not connected to any firm of contractors. We therefore have no financial incentive to specify unnecessary work to clients’ trees.
For clients' peace of mind, we maintain £1 million Professional Indemnity insurance cover with AXA Insurance UK Plc.
Please contact us for more information:
Tree Consultancy Group
Crownhead
Stobo
Peebles
Scottish Borders
EH45 8NX
Tel: 01721 760268
e: mail@treeconsultancygroup.com
Managing Consultant:
Kenneth Harvey Dip.For.
Principal Arboriculturist.