Duty of Care

[Lois milburn]

Hi, could anyone tell me what the legal consequences are for someone carrying out a tree inspection or survey. This is an assignment questions! I have found plenty of cases that refer to a owners duty of care, however I am struggling to find any cases reffering to the duty imposed on a tree inspection.

[Ian Flatters]

Hi, could anyone tell me what the legal consequences are for someone carrying out a tree inspection or survey. This is an assignment questions! I have found plenty of cases that refer to a owners duty of care, however I am struggling to find any cases reffering to the duty imposed on a tree inspection.

 

Hello,

 

The tree inspection itself is a duty of care by the client. They have a duty so the inspection is them carrying out that duty to see if there is any risk of them not carrying out the duty of care.

 

Sorry to use duty so much.

[Paul Jenks]

Ignorance is no longer a defence. Tree owners have a duty of care to ensure that their trees are in a 'reasonably' safe condition where there is the potential for them to cause harm to third party person or property.

I think, that for the average householder the idea of reasonable is different than for a corporation, estate, housing association, LA etc. Though I've yet to see that tested in court. There is a case where a tree owner has been found guilty of negligence when a tree failed and killed a man. The previous owners were also found guilty as the tree was so obviously dead and they had not done anything about it. There is a case where a housing association was found guilty when a defective limb crippled a man, £2.6million. And an LA that was found not guilty when a school girl was killed by a limb as they had had taken reasonable surveying measures.

Once a tree owner has had a survey and the surveyor has professional indemnity insurance(which assumes the insurer deems the person to be competent), the exposure to risk is transferred to the surveyor's insurer. If any works are recommended, the works need to be carried out according to the survey within the timescale stated on the survey schedule.

If they are not and a tree or section of a tree fails and it was recommended to be worked on the exposure is back with the tree owner.

If whoever carries out the works does not carry out the recommended works correctly according to the specifications the contractor carries the can.

[arbmark]

great answers but arent you actually asking whether the inspector the inspector has a duy of care?!

sure has, and he or she will have to defend their inspection in court if the incident has led to a claim. Provided it was done to the best of their abilities, thoroughly and from a standpoint of experience/qualification worthy of calling themselves an inspector they should be ok.......as i understand it!

[Pete Bannister]

Lois, we all hold a duty of care to others. That is a long established principal in common law (English law that is) since Donohue and Stevenson 1932

The difference between the duty of care that is expected from a layperson and from a commercial specialist or a professional (e.g. a tree inspector') is simply that the latter would be expected to utilise specialist knowledge, experience and or training in the execution of an instruction. Codes of practice, Standards and the like are the measures most folk use to convince themselves and others that a duty of care has been performed.

If you are answering an assignment question then it’s important to note that duty of care is not be confused with contractual obligations

Good luck

[Paul Jenks]

Thank-you Peter. Very succinct and informative.

[10 Bears]

I know Im a bit late on this, but in case you haven't handed in your assignment yet - the judgement of Donahue Vs Stephenson sets down the basic principle of duty of care, but a more relevant and specific case relative to a specialists obligations is Bush Vs Smith (1992).

 

Simply put, the expert is liable for their opinion given, irrespective of miles of caveats and get out clauses they may try to hide behind. In some circumstances this will actually impeach the expert even further as they recognise the problem but do little to resolve it other then to write a caveat. You also have to consider the Unfair Contract Terms Act (1977), wherein any contract between you and a client has to be in both of your interests ie have to be reasonable, and this will also impact upon your owed duties as an expert.

 

I could go on in greater detail, but these principles combined are the significant parts of the duty of care owed by an inspector.