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With the ever-changing environment we live in, colder winters, hotter summers and stronger storms, one of the impacts we may not have envisaged is the increasing risk of tree failures.
Even a falling branch can prove fatal, as evidenced by a number of high-profile events in the past year, and for public bodies there is a both a financial and reputational cost.
So, what can public bodies do to minimise their risk and can they defend claims when an incident does occur?
The legal position
The standard of care is set out in Caminer v Northern & London Investment Trust where it confirms this is to act as the ‘reasonable and prudent landowner’. In terms of a public body this would include putting in a system for inspecting the trees on their land.
In Micklewright v Surrey County Council [2011], the Judge held an inspection system would be appropriate if carried out by a person with a working knowledge of trees as defined by the HSE.
What are the appropriate inspection levels?
In Witley Parish Council v Cavanagh a tree fell onto a bus on an adjoining A road. The tree was subject to inspections every three years by a tree surgeon appointed by the local authority. Decay had begun to develop after the last inspection (nearly three years prior to the tree failure) so was not discovered by the time of the accident.
The Court found that the tree was in a high-risk position in a very busy area and next to a main road. It was 25-30 metres high and had potential to cause serious harm so it should have been inspected no less than every two years and that would have identified the decay and prevented the accident.
The Court also confirmed the Council could perhaps have made a distinction based on the risk level of the trees so that some were inspected less frequently allowing for more frequent inspections of those presenting a higher risk.
As such, a 'risk-based approach' is the most suitable in these circumstances.
Causation
Causation can be a key issue in cases involving trees.
A tree may be diseased but if that couldn't be seen on a reasonable inspection then there should not be liability. This would also apply to where there is a crack which can only be seen from above the tree.
Most of the time an inspection from ground level is appropriate and whilst there is technology such as drones which can be used to look higher on the trees, we come back to the risk-based approach and considering what are reasonable steps to take. This sort of technology would not be expected in regard to a tree which gives no indication of an issue.
Practical considerations
There should be a thorough policy for the inspection and maintenance of trees showing the system and risk assessment put in place. Public bodies are entitled to consider 'zoning' of trees where areas with, for example, less footfall or less risk of damage are inspected at a lesser frequency. Alternatively, trees in a busy area of Ash Trees at risk of Ash Dieback should be inspected more frequently.
Furthermore, any response to a defect on a tree can be prioritised based on the tree's location.
In Bowen v National Trust [2011] the Court found that adequacy of inspection was inextricably linked to the location of the tree and in that case the Trust had not carried out remedial action for an identified defect, but this was not a breach of its duty when the location of the tree was taken into account.
What to do when a claim is received
One of the first steps in any investigation should be to get an appropriate expert to inspect the tree.
Quick action on tree claims can also secure the branch or tree in question for an expert to review before it is disposed of or decays further and all of these early steps are more likely to result in success at trial.
You should consider weather events and if there are any records of wind speeds. A healthy tree with no issues can fall in a particularly bad storm where the wind speeds are high enough.
As with any claim, retention of the policies and records is always essential and key to any defence. It is also important to identify key witnesses and ensure their details are retained. It is very hard to argue that the tree was inspected to an appropriate standard if the person who did the inspection is not available as a witness.
Conclusion
A public body is not expected to be 'an insurer of nature'. It is accepted the volume of trees across the country means they cannot be inspected in the same manner as potholes, for example.
However, where a public body has a clear and well thought out system of inspection, inspections undertaken by suitably qualified individuals and an appropriate response strategy then hopefully the incidents will not occur. Where they do happen and claims are received there can is a Defence available with a quick and focused response retaining the key evidence at an early stage.
