National Trust sued

[Amelanchier]

Having seen the branch in question, been up the tree (albeit in a mewp), worked with the forestry team at Felbrigg, and as I now working for a company who was involved in the original coroners case (NB: verdict = accidental death), I feel it's reasonble that I add my (carefully worded) opinion to this thread.

 

As far as I recall, the branch failed at an included union from a considerable height. It was determined at the coroners inquest that any cracking or bark separation would only have been visible from an aerial inspection. Essentially, it was an included union on a Beech tree in a Beech compartment within an ancient woodland (i.e., there are a lot of limbs like that still attached with no problems). The inspection regime was appropriate to the resources available (two full time foresters and a smattering of volunteers) and scale of the site (1760 acre parkland and 520 acre woodland).

 

Its clear to me that the NT discharged their duty of care. Anyone who has been to the site will know that they manage an extensive and aging stock which has considerable historic, biodiversity and amenity value. Risk must always be judged against benefits.

 

I'm tempted to speculate about the motives behind the arboricultural advice that the family have recieved but that would probably be unwise and unprofessional. I trust that it will all come to light in the transcripts.

[Amelanchier]

Its not easy, this is why I really think we need a law change to switch it from a presumption of responsibility on the landowner, to responsibility on the part of the individual.

 

The Countryside and Rights of Way Act 2000 indemnifies landowners against injury to third parties in respect of 'natural features' on designated access land. Seems sensible to me.

[Amelanchier]

a 2t branch ,thats a fair lump of wood for a tree to shed ,!!!!

 

i take it some on weighed it ,to get to that figure ?

 

or was it an estimate

 

Estimate based on diameter measurements and green wood weights.

[AA Teccie (Paul)]

Having seen the branch in question, been up the tree (albeit in a mewp), worked with the forestry team at Felbrigg, and as I now working for a company who was involved in the original coroners case (NB: verdict = accidental death), I feel it's reasonble that I add my (carefully worded) opinion to this thread.

 

As far as I recall, the branch failed at an included union from a considerable height. It was determined at the coroners inquest that any cracking or bark separation would only have been visible from an aerial inspection. Essentially, it was an included union on a Beech tree in a Beech compartment within an ancient woodland (i.e., there are a lot of limbs like that still attached with no problems). The inspection regime was appropriate to the resources available (two full time foresters and a smattering of volunteers) and scale of the site (1760 acre parkland and 520 acre woodland).

 

Its clear to me that the NT discharged their duty of care. Anyone who has been to the site will know that they manage an extensive and aging stock which has considerable historic, biodiversity and amenity value. Risk must always be judged against benefits.

 

I'm tempted to speculate about the motives behind the arboricultural advice that the family have recieved but that would probably be unwise and unprofessional. I trust that it will all come to light in the transcripts.

 

Hi Tony, not that I've realy got time to go here...BUT needs must!

 

IN terms of the "inspection regime" being appropriate, and acknowledging the reality of 'available resource' and 'scale of the site', are not the primary considerations ones of 'risk', i.e. likleyhood of failure and targets etc., such that if it was deemed 'high' risk appropriate resources would need to be made available...somehow.

 

I guess it's the principal of the issue here as to what actually dictates 'risk' and I'm not sure to what extent a lack of available resources given such a large scale site would 'defend / mitigate' liability.

 

Interetsing comments about the CROW Act which I wasn't aware of and at what stage to trees become 'natural features' I wonder?

 

Thanks..

Paul

[Amelanchier]

Hi Tony, not that I've realy got time to go here...BUT needs must!

 

IN terms of the "inspection regime" being appropriate, and acknowledging the reality of 'available resource' and 'scale of the site', are not the primary considerations ones of 'risk', i.e. likleyhood of failure and targets etc., such that if it was deemed 'high' risk appropriate resources would need to be made available...somehow.

 

I guess it's the principal of the issue here as to what actually dictates 'risk' and I'm not sure to what extent a lack of available resources given such a large scale site would 'defend / mitigate' liability.

 

Interetsing comments about the CROW Act which I wasn't aware of and at what stage to trees become 'natural features' I wonder?

 

Thanks..

Paul

 

Of course targets and risk are the primary concern of the risk assessment, I just meant that the courts (e.g., Atkins v Scott 2008) and the guidance (such as the oddly numerous case studies in the NTSG draft appendices) both place a considerable emphasis on the notion of what system of inspection is practical for a reasonable landowner to implement.

 

For sure there was a risk (there is always a risk!), but I don't think it was reasonably practical for the NT team to have surveyed the site/tree in greater detail. And given the relationship between risk and benefit - any greater use of resources in reducing risk necessarily reduces benefits (inappropriate tree work, closed footpaths, unmanaged facilities, reduced planting...).

 

I'm not sure about the CRoW thing - I guess it would be hard to argue that trees big enough to cause harm weren't 'natural' or 'features'?! Although I believe the intention was to encompass rivers, caves, cliffs, etc.

[AA Teccie (Paul)]

Of course targets and risk are the primary concern of the risk assessment, I just meant that the courts (e.g., Atkins v Scott 2008) and the guidance (such as the oddly numerous case studies in the NTSG draft appendices) both place a considerable emphasis on the notion of what system of inspection is practical for a reasonable landowner to implement.

 

For sure there was a risk (there is always a risk!), but I don't think it was reasonably practical for the NT team to have surveyed the site/tree in greater detail. And given the relationship between risk and benefit - any greater use of resources in reducing risk necessarily reduces benefits (inappropriate tree work, closed footpaths, unmanaged facilities, reduced planting...).

 

I'm not sure about the CRoW thing - I guess it would be hard to argue that trees big enough to cause harm weren't 'natural' or 'features'?! Although I believe the intention was to encompass rivers, caves, cliffs, etc.

 

 

Tony, thank you for clarifying that.

 

I think, in particular with a landowner such as the NT, that it is of the utmost importnace to make a clear statement in their Tree Management Policy that the benefits of trees on THEIR land include wildlife / ecology / habitat etc. such that it is then, hopefully, acknowledged that oftne the older and more 'knackered' (technical term!) a tree is, the greater value it will have in this regard and hence the associated 'acceptable risk level' will inevitably higher....I think!

 

Cheers..

Paul

[Arbgirl]

This isnt the first case that the NT have been sued for

 

Another child died and the parents also brought a case

 

I'm not sure if this one is still ongoing (I believe a private prosecution is/was being brought?)

 

Family of tree crush boy sue National Trust in landmark law suit | News

 

Does the CROW legislation outweigh the Occupiers Liability Act?

[Arbgirl]

The first case (the one I mentioned was in 2005) and the one mentioned at the beginning of this thread was 2007

[AA Teccie (Paul)]

This isnt the first case that the NT have been sued for

 

Another child died and the parents also brought a case

 

I'm not sure if this one is still ongoing (I believe a private prosecution is/was being brought?)

 

Family of tree crush boy sue National Trust in landmark law suit | News

 

Does the CROW legislation outweigh the Occupiers Liability Act?

 

Hi Arbgirl,

 

Don;t know anything about the 'case' but in response about does CROW outweigh OLA...I think probably not.

 

The Act is clear, and explicit, that landowners have a 'duty of care' to visitors/users of their land, despite whether invited or not (two Acts 1954 & 1987...or thereabouts.)

 

In terms of the CROW 'natural features' scenario whihc Tony mentioned, I would assume this perhaps gives ground for mitigation in certain circumsatnces but fundamentally the 'DoC' remains and the landowner must do what is deemed 'reasonable'....that's another discussion but hopefully (very) soon to be issued NTSG (National Tree Safety Group) guidance will help us here.

 

Cheers..

Paul

[b101uk]

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.