National Trust sued

[Arbgirl]

Im not sure if either case has actually been concluded and wonder of the wisdom of discussing it on a public forum until both are completely resolved

 

Certainly does throw up some points for general discussion though as to duty of care and liability to the public (children, those invited onto your land and not forgetting the duty of care to trespassers too)

 

Surely the act of carrying out tree inspections shows that a duty of care must exist and that CROW doesnt absolve liability in these cases?

 

Will be interesting to see how a "natural feature" is defined

[David Humphries]

Im not sure if either case has actually been concluded and wonder of the wisdom of discussing it on a public forum until both are completely resolved

 

Certainly does throw up some points for general discussion though as to duty of care and liability to the public (children, those invited onto your land and not forgetting the duty of care to trespassers too)

 

 

 

I believe your point is pertinent & well made but I also believe that as a learning & developing industry we should have the freedom to sensitively discuss issues around all aspects of Tree management.

 

As long as forum guidelines are adhered to & no defamation of persons or companies occurs, then there is something for us all to learn from in threads of this nature.

 

Should be noted that we as a team of moderators, do look at these threads closely to make sure they are appropriate & suitable for the site.

 

 

David

 

 

 

.

[Amelanchier]

Well having gone back to the primary legislation of the CRoW act I can now answer these queries without relying on faded half memories...

 

With regard to the OL acts, CRoW takes primacy because it amends the earlier legislation and contrary to my previous recollection it is explicit on the relevance to trees(my empasis in bold);

 

"13 Occupiers’ liability.

(1)In section 1 of the Occupiers’ Liability Act 1957 (liability in tort: preliminary), for subsection (4) there is substituted—.

 

“(4)A person entering any premises in exercise of rights conferred by virtue of—.

(a)section 2(1) of the Countryside and Rights of Way Act 2000, or.

(b)an access agreement or order under the National Parks and Access to the Countryside Act 1949,.

is not, for the purposes of this Act, a visitor of the occupier of the premises.”

 

(2) In section 1 of the Occupiers’ Liability Act 1984 (duty of occupier to persons other than his visitors), after subsection (6) there is inserted—.

 

“(6A)At any time when the right conferred by section 2(1) of the Countryside and Rights of Way Act 2000 is exercisable in relation to land which is access land for the purposes of Part I of that Act, an occupier of the land owes (subject to subsection (6C) below) no duty by virtue of this section to any person in respect of—.

(a) a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond whether or not a natural feature, or.

(b) a risk of that person suffering injury when passing over, under or through any wall, fence or gate, except by proper use of the gate or of a stile.

(6B) For the purposes of subsection (6A) above, any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape.

(6C) Subsection (6A) does not prevent an occupier from owing a duty by virtue of this section in respect of any risk where the danger concerned is due to anything done by the occupier—.

(a)with the intention of creating that risk, or.

(b)being reckless as to whether that risk is created.”

 

So, landowners still have a duty of care on access land but the liability is relaxed. Not all visitors are visitors and trees are natural regardless of the inequitious intervention of 'man'. Doesn't that seem sensible?

 

Even better, in deciding liability, the act specifically mentions that there may be special consideration given to the finacial burden of allowing access and the responsibilities of maintaing the character of the countryside. To that end I've attached a English Nature Guidance note which essentially covers the issue.

English Nature CRoW Liability.pdf

Edited June 22, 2011 by Amelanchier

[Amelanchier]

Tony, thank you for clarifying that.

 

Ha - seems that while I was being careful about the legal implications of my post I fluffed the basics?!?

[Neil Frost]

How does a land-owner get on, esp with public access, if he has no funds to maintain very old trees where the public do have access? As we all know, to have a survey carried out is not cheap, to have the necessary work carried out is not cheap. If the pot is empty, no amount of good intention will prevent the inevitable failure of limbs and trees in time. I am not refering here to the NT btw, but a small parish church where the public need to tend graves, and with 2 public footpaths passing through, close to the trees.

 

That's a very good point. I've recently done a very basic survey of just such a site. The church warden is a very good friend of mine, so it was a favour. The graveyard is dominated by 20+ mature lime trees complete with large diameter deadwood and white rot fungi sprinkled in. There's no way the church has enough money to have the level of work done needed, but I'm doing the deadwooding for free.

[Amelanchier]

One could also say that if a tree inspection program was in place and the tree failed between inspections then the person doing the inspecting got it wrong and was not duly cautious or the time between inspections was to long - in either case an amount of liability for failure must rest with the NT and its employees be they the people in the office setting inspection periods or the man inspecting trees.

 

One could say that but I would suggest that it presents a mistakenly narrow view of the situation. Not all failures are predictable and therefore it is beyond the capacity of any inspector to identify invisible defects them however short the inspection interval. Similarly, as healthy trees, or parts of healthy trees, can fail without the presence of incipient defects if subjected to sufficient force (i.e., gales) your dichotomy is a presciption for unnessecary felling. The only 'safe' tree is one that no longer exists.

[Andy Collins]

That's a very good point. I've recently done a very basic survey of just such a site. The church warden is a very good friend of mine, so it was a favour. The graveyard is dominated by 20+ mature lime trees complete with large diameter deadwood and white rot fungi sprinkled in. There's no way the church has enough money to have the level of work done needed, but I'm doing the deadwooding for free.

 

Want any more?

[Neil Frost]

Want any more?

 

Sure, I'll protect the C of E throughout Suffolk! Will have to get a cape designed!

[Gareth Dalzell]

Sure, I'll protect the C of E throughout Suffolk! Will have to get a cape designed!

 

Wouldn't a "frock" be more in keeping ( in the biblical sense that is) and provide better ventilation for tree work!

[skyhuck]

One could argue that a tree that has been planted by “man” in a specific place and/or has had maintenance on it by “man” is NOT a 'natural feature' in the same way a sculpted/landscaped terrain is not, nor a ditch dug by man, etc etc.

 

One could also say that if a tree inspection program was in place and the tree failed between inspections then the person doing the inspecting got it wrong and was not duly cautious or the time between inspections was to long - in either case an amount of liability for failure must rest with the NT and its employees be they the people in the office setting inspection periods or the man inspecting trees.

 

Using this argument could an MOT examiner be held responsible for a accident attributed to mechanical failure between MOT's??????????

 

I think not.