Client ignores advice, who is liable?

[Ollie94]

Hi all,

 

Bit of a head scratcher for me, I’ve been asked to remove an ash tree on a boundary. it’s ever so slightly on the clients side, and leans over his property. The problem is it includes right at the base and into the stump with another tree (Elm). the Elm however is ever so slightly on the neighbours side! And leans that way too.. (Who is not arsed one bit about having or paying for the elm to come down.)

 

I’ve advised that in my honest opinion, both should come down, as the ash stump rots away it will create some instability for the elm if it were to remain over time.
 

my question is, were the client to ask to proceed in any case with just the ash, who would be liable for any future failure of the elm? I’ve put it in writing at least… but then that makes no difference to the neighbour as they want no involvement and haven’t asked for any work that might affect their own tree…

 

 

[GarethM]

If you do the job make sure it's on the quote and signed.

 

Or just make it financial better to do it all and be done 🙂

Edited June 20 by GarethM

[Ledburyjosh]

Do you have professional indemnity insurance?

 

If not do not state such things in writing.

 

The majority of PL policies (do check) cover verbal advice. Once written that requires differing insurance to be covered.

 

So offer verbal advice and let them decide.

 

As for instability, of the elm my thoughts would be at the rate of decay of a Ash stump the Elm (assuming its healthy) will adapt at a similar rate and will unlikely be an issue.

 

It's quite likely it is independently stable anyway even without the Ash. An altered wind loading on the Elm could be considered but its pretty small so I wouldn't think that a big problem.

 

To answer the question though, you've advised removal of both, if they choose to remove only one that is a choice of there's against professional advice. So I do not see how you could be liable

You can only advice not enforce.

 

 

[Ollie94]

Good advice, thank you both.

I’ll check the wording of my policy.
 

I’ll probably say, all or nothing and leave it up to them to sort… it’s a headache I can see coming back to me. Appreciate the opinion on its longevity… the picture doesn’t do it justice though, it’s a chunky monkey with a hell of a one sided lean on it, else I wouldn’t by second guessing what to do…

[openspaceman]

19 hours ago, Ledburyjosh said:

 

If not do not state such things in writing.

Advice can be written or oral, both are verbal.

 

It is easy enough to phrase a suggestion in a way that it does not constitute legal advice or cause any liability and for a normal contracting business professional liability is not necessary, it is in the domain of consultants.

[daltontrees]

Is this a customer or a client? A client is someone that pays you for advice. A customer is someone that pays you to do work. Call them a client and they will expect to be able to rely on your advice. Even if it's verbal. Even if they didn't have to pay for it, directly or indirectly.

On a general point of law, your 'customer' has no obligation to provide support for a tree on adjacent land. If in doubt leave a decent stump, and as it decays the elm should either adapt to loss of support or start leaning over. Not your customer's fault. If you can't leave a stump, warn the neighbour of possible sudden loss of support. It's then for them to guard against failure, harm or damage.

[AHPP]

I like your distinction between client and customer. Is there any legal basis to it?

[daltontrees]

I believe the distinction is universal, but I see a lot of contractors calling cutomers clients, maybe they think it makes them look fancier, the way that 'tree surgeon' makes a tree butcher look fancier. But I expect in a court of law anyone calling their customer a client would be implying an advisory role requiring professional indemnity. When I was a surveyor (MRICS) I remember our law lecturer stating that even if you weren't being paid for the advice you were still professionally liable for it.

[zippysluggish]

I have a similar problem at the moment.,apologies for jumping on your thread.

 

I went to quote for some hedge work. As I approached the house I could see a large Robinia stem leaning on a fence,the fence had fresh splits running down the length of it that made me think the tree  was on the move.

I went and had a look at the base and it was completely rotten. There is just a small piece of solid wood holding it up . The tree is an old coppice and the stem is leaning over a busy road.

 

I showed the customer and he asked for a quote to get the stem down and leave the rest of the tree .

 

I've sent him a quote to fell the stem and another to trim the hedges, they are both the same price .

 

He has just emailed back to say he will leave the tree for now and just have his hedges trimmed!

 

I'm pretty sure this tree will fail sooner rather than later. 

If it was just going to fall in his garden I wouldn't be so bothered but the fact it's going to go over a busy road leaves me wondering what action I should take? What's my responsibility?

 

Thanks.

[jfc]

3 hours ago, zippysluggish said:

 

I'm pretty sure this tree will fail sooner rather than later. 

If it was just going to fall in his garden I wouldn't be so bothered but the fact it's going to go over a busy road leaves me wondering what action I should take? What's my responsibility?

 

Thanks.

You both have a duty of care. However no further action needed, by you, as you have informed the tree owner (hopefully in writing) of your concern and advice to remove. It is their responsibility to action it or not. If it fails and goes to court coz someone is injured they will have to explain why they did nothing.