WHAT WE DO
Tree Consultancy Group is an independent arboricultural practice which carries out professional tree surveys for safety and risk management in the Scottish Borders, Edinburgh and the Lothians.
WHAT IS TREE RISK MANAGEMENT?
Tree risk management helps tree owners comply with their legal duty of care by identifying any trees where it is reasonably foreseeable that harm or damage could arise due to their condition. The level of risk is then assessed to determine whether any intervention or expenditure is justifiable and, if it is, appropriate works are specified to eliminate the risk or reduce it to an acceptable level.
THE DUTY OF CARE
In general terms, the duty of care owed by a person responsible for a tree (the duty holder) is to ensure, as far as is reasonably practicable, that people entering onto or passing by the property do not suffer injury or damage as a result of any act or omission which could reasonably have been foreseen. The duty holder (who is generally the owner, occupier or manager of the property or land on which the trees grow) may be held liable for physical harm or damage arising from an accident to a third party where the cause of the accident was both reasonably foreseeable and reasonably preventable.
WHAT THE LAW SAYS
The duty of care to third parties and the requirement to act in a reasonable and responsible manner form the basis of The Occupiers' Liability (Scotland) Act 1960. At Section 2 (1), the Act states: "The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall ........be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger".
The requirement to take reasonable care is also central to the Health and Safety at Work etc. Act 1974. The Act requires businesses to ensure that risks to third parties are reduced as far as is reasonably practicable. Section 3 (1) of the Act, states: "It shall be the duty of every employer to conduct his undertaking in such a way to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their health or safety”.
There is no requirement to ensure the safety of others or the safety of trees, only to take reasonable care to provide reasonable safety.
WHAT IS PROPORTIONATE AND REASONABLE?
Unfortunately, there is no hard and fast rule as to what is proportionate and reasonable. In any given case it will be the court which decides what was reasonable in the circumstances and who, if anybody, is liable. Past judgements are generally consistent and are of interest as they indicate what has been expected when cases involving trees have gone to court. The general principles of liability appear to be:
- where a tree was not inspected - the duty holder would generally be liable if the causative defect would have been apparent in the course of a visual inspection. If the defect would not have been apparent, the duty holder would generally not be held liable, even though no inspection was carried out.
- where a tree was inspected - the duty holder would generally not be held liable if the causative defect was not apparent. Where the defect would have been apparent but no action was taken, or if the defect was not identified, the duty holder would generally be liable.
REGULAR SAFETY INSPECTIONS
So, while the law appears to tolerate a certain level of risk in relation to trees, it is with the proviso that some form of regular safety inspection is carried out. When an accident does occur, the absence of any regular inspection is only considered defensible in situations where the trees are in a remote location with minimal public access.
In all other situations, the courts consider that duty holders should be aware of the condition of their trees and take steps to manage them in an appropriate and responsible manner. What may be considered appropriate varies, according to the circumstances. A greater degree of rigour is expected from those responsible for sites with considerable public access (for example, Local Authorities and estates open to the public) than from private householders. The frequency of inspections and the level of care expected will therefore depend on the size and type of holding involved, but all are expected to act in a proportionate and reasonable manner.
SERVICES WE PROVIDE
If tree owners are not sufficiently confident in their own ability to recognise the signs of significant defects and assess their importance with regard to safety, they should seek professional advice. We have over 40 years’ experience of carrying out tree safety surveys for a wide range of private, public and commercial clients for sites ranging from single trees to entire woodlands in urban and rural locations. We provide:
- Tree safety surveys to ensure compliance with the duty of care imposed by the Occupiers' Liability (Scotland) Act 1960 and the Health and Safety at Work, etc. Act 1974.
- Tree risk assessment and management advice in accordance with HSE recommendations and National Tree Safety Group guidance.
- Expert Witness representation for clients involved in personal injury or compensation claims.
We do not carry out tree work (tree surgery) or felling ourselves, and are not connected to any firm of contractors. We therefore have no financial incentive to specify unnecessary work to clients’ trees. We provide clients with a report which records that a survey was carried out, what safety issues (if any) were found, and lists any works that may be required to reduce or eliminate the risk. Clients can then seek quotations from tree work contractors for the works specified.
Our clients include Local Authorities, councils, charities, private estates, housing and residents associations, solicitors, insurers, property owners, agents and managers.
For clients' peace of mind, we maintain £1 million Professional Indemnity insurance cover with AXA Insurance UK Plc.
Please contact us for more information:
Tree Consultancy Group
Crownhead
Stobo
Peebles
Scottish Borders
EH45 8NX
Tel: 01721 760268
e: mail@treeconsultancygroup.com (preferred contact method)
Managing Consultant:
Kenneth Harvey Dip.For.
Principal Arboriculturist.