Liability For Trees

[Dorset Treeman]

I have done a bit of research using various online sources (some more trustworthy than others) and have put this together in the hope of being able to use in a report. I was hoping some people more knowledgeable on law would kindly comment on how accurate and up to date this is or whether they feel something needs amending or has been omitted.   Thanks in advance. Please be as critical as you like, I'm thick skinned and could really do with the help!

 

Liability for Trees

Owners, in addition to any person(s) responsible for the management of trees owe a duty of care to those who visit their land. The liability comes under civil and criminal laws:

 

Civil Liability

Owners and tree managers have a duty to take reasonable care for the safety of those (being any person who can be reasonably foreseen) who may come within the vicinity of a tree. The standard of care that is used for benchmarking purposes is that of the “reasonable and prudent landowner”. Breach of this duty of care may lead to action arising against the tree owner/manager under the tort of negligence.  The tort of nuisance also dictates that land owners/managers have a similar duty of care to neighbouring land.

 

The Occupiers’ Liability Act provides that person(s) with control over land (occupier) is obliged to take reasonable care such that any visitor (under the 1957 Act) or a trespasser (under the 1984 Act) will be reasonably safe, where the occupier knows of the potential presence of such people on their land and of the risk posed to them by features of the land such as trees.  A higher standard of care is owed to a visitor than that to a trespasser. An even greater duty of care is owed to a child as occupiers must expect children to behave with less care than adults.

 

Warning notices, warning of specific dangers posed by a tree (or trees) may be sufficient to absolve an occupier from liability in that they may, by such notice, have taken all reasonable care for the visitor’s safety in the circumstances. However, in general, warning notices should not be relied upon alone to protect against a danger as they may not exclude or restrict liability under the Occupiers’ Liabilities Acts resulting from negligence.

 

Criminal Liability

 

The Health and Safety at Work Act 1974 places a duty on employers to ensure, so far as is reasonably practicable, that employees (section 2(1) and members of the public (section 3(2)) and other persons such as self-employed people – section 3(3)) are not put at risk.

 

The Management of Health and Safety at Work Regulations 1999: Regulation 3 requires employers and self-employed persons to make suitable and sufficient risk assessments regarding health and safety.

 

Breaches of either the Act or Regulations can result in a criminal prosecution against the employer.

[daltontrees]

It is far and away more important to have a good practical understanding of duty of care law than to have a crisp statement of it in a report. As such, there are dangers in copying text from someone else's reports. Firstly it may be wrong, and from personal experience of looking at reports from some of the best known tree consultants in the UK I'd say there's a good chance of errors. (I was tempted when I started out to use a very well known consultant's report as a template for my own, but by the time I had adjusted it there was almost nothing left of the original). Secondly, it is important to make your reports your own in style and content, and to integrate general statements about duty of care into the context of the whole report. You can see sometimes in reports that sections have been beamed down from Planet Solicitor or nicked from somewhere else and the report looks like it's been written by a committee, which is a distraction that undermines confidence in the important bits of the report, namely the tree advice. Third, copying instead of writing will discourage rather than encourage your own understanding of the issues.

 

So I applaud you attempting to have a go at your own prose. But then the danger arises that if you try to make your report an authoritative statement of the law, readers will rely on it unduly, with potentially dangerous consequences. Personally I'd say even before knowing the context of how you plan to use your prose that it is too detailed, and in being too detailed it is then not detailed enough to be definitive. Better I'd say to back off in the other direction. Stick to the generalities.

 

I'd suggest you start and finish with s.2(2) of the Occipiers Liability Act 1957 and s.1(4) of the Occupiers Liability Act 1984. Look them up. 2 sentences. That is the law. Case law has tinkered on the fringes of it, and for sure a good understanding of the development is important practical understanding,  but I don't believe there is any need for that level of detail in a report unless a specific trree raises a specific issue.

 

I honestly don't think making a distinction between criminal and civil law is useful. THe HS part can be covered by adding something simple like "Health and Safety legislation also places a duty on employers to ensure, so far as is reasonably practicable, that employees and members of the public are not put at risk." I don't think you need to add that criminal prosecutions could ensue, as that's kind of scaremongery and obvious.

 

Stepping back from all this mumbojumbo, don't forge the essence of the report. You, client, are a tree owner, You have a duty of care. You have asked me to check the trees for you to make sure that you are taking proportionate and reasonable actions to avoid foreseeable harm or damage. With that in mind, I have looked at the trees, and recommend you do X and Y within Z months and have ther trees reinspected in XX months.

 

I have seen many an expensive  bullshit tree report that isn't anywhere as useful to the client as that. You can fill a report with all sorts of caveats,  but these are at their best when you also explain that the survey is limited because the law does not ordinarily expect a duty holder to climb, bore, excavate, DNA test etc.

 

So, Alan, I'd say yes write your own report or copy only if you really really understand what you're saying or not saying, and keep it in context, helpful and reassuring, explaining limitations and why those limitations are appropriate.

 

You can get me offlineif there are any specifics.

 

PS all the aforegoing would not be reliably correct for Scotland or Ireland.