The danger from above. Daniel Mullinger, aged 11, died instantly when a tree branch fell on him whilst on a visit to a National Trust property in Norfolk, in June 2007. His three friends survived but with significant injuries – one nearly died and will need a double hip replacement. Just over a year earlier the High Court had handed down judgment in another case involving personal injury where a motorcyclist collided with a fallen ash tree on a Somerset road. The freak accident. Whilst the consequences of tree collapse are extremely serious, the advice from the National Tree Safety Group, a consortium of large landowners and their representatives, including the CLA, is that the risks must be kept in perspective. Millions of trees grace our landscape, but only about six deaths a year involve trees.. What does the law say ? The two cases outlined illustrate the importance of being able to demonstrate that the risks posed by trees on your land have been carefully assessed. In the first, Bowen and others v. National Trust [2011] EWHC 1992 (QB), Mr. Justice Mackay ruled that the trust was not to blame for the incident. Giving judgment on the issue of whether or not it had failed to exercise reasonable care in its maintenance of the fatal tree, he stated: "In the event [the National Trust inspectors'] judgment was wrong and disastrous consequences followed, because of the cruellest coincidence of the failure occurring at the very moment this small group was standing under the branch when it did so. But risk assessment in any context is by its very nature liable to be proved wrong by events, especially when as here the process of judging the integrity of a tree is an art not a science, as all agree. I accept these inspectors used all the care to be expected of reasonably competent persons doing their job, and the defendant had given them adequate training and instruction in how to approach their task." The outcome in this case was the opposite of that of the motorcycle (Gary Poll v Bartholomew and Bartholomew (Viscount and Viscountess Asquith of Morely), [2006] EWHC 2251 (QB)), where the court found for the motorcyclist. The reasoning of the two judges was, however, consistent in that they both placed heavy emphasis on appropriately trained inspectors employing a reasoned method of risk assessment. In the Poll case the defendants employed a general forestry expert whose risk assessment involved "drive past" inspections. Mr Justice MacDuff concluded that due to the location of the relevant tree next to a highway, a greater specialist knowledge was required for that assessment. In his view the work required the attention of a tree surveyor/inspector who had sufficient training, expertise and/or qualifications to identify tree hazards, assess the levels of risk and make appropriate management recommendations. The generalist employed did not, the court felt, hold the knowledge necessary to assess the risk posed by the particular species in question. What factors should a risk assessment consider? There is no legally defined procedure for risk assessment but the courts and bodies such as the Health and Safety Executive emphasise the following points. 1. Group the trees into risk zones. It is suggested that there should be a minimum of two zones: one where there is frequent public access to trees (e.g. in and around picnic areas, schools, children's playgrounds, popular footpaths, car parks or at the side of busy roads); and a second, where trees are not subject to frequent public access. 2. For trees in a frequently visited zone, a system for periodic, proactive checks carried out by a person with a working knowledge of trees and their defects is suggested. 3. Written records. A short record of when an area or zone, or occasionally an individual tree, has been checked or inspected with details of any defects found and action taken, is essential. 4. Where a check reveals a defect that may require knowledge of a particular species or defect (as in the Poll case) a system is required for obtaining specialist assistance or action from a specialist arboriculturist. 5. A reporting system enabling employees or other visitors to report damage to trees is suggested. This could be publicised through notices or staff induction. Final points Before taking action to curb the risk posed by a particular tree, check whether or not the tree has a preservation order or is within a designated conservation area; local authority tree officers have this information. It is worth seeking advice from insurance advisers. If it can be demonstrated that an effective risk management system is in place it may well help achieve lower public liability insurance premiums. Gepp & Sons has a team of specialist solicitors who regularly advise CLA members on trees and a wide range of other rural issues. Contact Edward Worthy or Jonathan Douglas-Hughes on 01245 493939 The above is not legal advice; it is intended to provide information of general interest about current legal issues.
