Trees and The Law
Trees and The Law
Legal Framework
Under both civil and criminal law, a landowner on which trees stand have a duty of care, a responsibility for health and safety, of those on or near the land of falling trees or limbs and branches.
Civil law gives rise to duties and potential liabilities arising from accidents caused by trees. Criminal gives rise to the prosecution in the event of infringement of the criminal law.
The Civil Law
The owner or managers of the land on which trees stand owe a duty of care to prevent damage or injury. Duty of care is the reasonable actions taken to prevent acts or omissions that cause foreseeable risk of injury to persons or damage to property. If a person is injured by a falling/fallen tree or branch then the owner/manager becomes legally liable under the Occupiers’ Liability Acts of 1957 or 1984. Regulations under the Health &safety at Work Act 1974 may also give rise to liability under civil and criminal law.
Criminal Law
The Health and Safety at Work Act 1974 places duty on employers. Tree surgery operations, growing and management of trees fall within the scope of the duty if such operations fall within the employers undertaking.
The Occupiers’ Liability Act (LOA)
Compensation Act 2006
“A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—
(a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b)discourage persons from undertaking functions in connection with a desirable activity”.
The Duty Holder
This is the person who has control of the tree’s management whether as owner. Lessee, licensee or occupier of the land on which the trees stands. The relevant highway authority is responsible for trees on land forming part of the highway.
The Person to Whom the Duty is Owed
This is any person who has been injured by a fall of a tree or branch. Those using highways, footways, public footpaths, bridleways, railways and canals are likely to come within striking distance of trees on adjacent land. In public spaces/semi-public spaces such as churchyards, school grounds those visiting, working or passing are expected to come within the trees’ vicinity. On private land, visitors and employees can be expected to come within the vicinity of trees. Trespassers too are expected to be within the trees’ vicinity.
The Duty Owed
In general, this is the duty to take reasonable care for the safety of those who may come within the vicinity of trees.
Courts have defined reasonable care as the standard of care is that of “the reasonable and prudent landowner”. The tree owner is not expected to guarantee the tree is safe but must take reasonable care such as could be expected of the reasonable and prudent landowner.
The highway authority has a potential liability for fallen trees and branches for which it is responsible of section 41(1) of the Highways Act 1980.
Standard of Inspection
Reference
National Tree Safety Group – Common Sense Risk Management of Trees
Lanta Awards – Professional Tree Inspection Workbook
Under both civil and criminal law, a landowner on which trees stand have a duty of care, a responsibility for health and safety, of those on or near the land of falling trees or limbs and branches.
Civil law gives rise to duties and potential liabilities arising from accidents caused by trees. Criminal gives rise to the prosecution in the event of infringement of the criminal law.
The Civil Law
The owner or managers of the land on which trees stand owe a duty of care to prevent damage or injury. Duty of care is the reasonable actions taken to prevent acts or omissions that cause foreseeable risk of injury to persons or damage to property. If a person is injured by a falling/fallen tree or branch then the owner/manager becomes legally liable under the Occupiers’ Liability Acts of 1957 or 1984. Regulations under the Health &safety at Work Act 1974 may also give rise to liability under civil and criminal law.
Criminal Law
The Health and Safety at Work Act 1974 places duty on employers. Tree surgery operations, growing and management of trees fall within the scope of the duty if such operations fall within the employers undertaking.
The Occupiers’ Liability Act (LOA)
LOA 1957 provides for the liability of an occupier of land when an accident occurs on the land to a person who is a “visitor”. The occupier owes a duty to “take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using premises for the purposes for which he/she is invited or permitted by the occupier to be there”. LOA 1984 extends the occupier’s liability to trespassers and areas deemed as “access land”.
“A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—
(a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(b)discourage persons from undertaking functions in connection with a desirable activity”.
Desirable activity is not defined by the Act but is likely to include an activity such as trees growing. The Act reinforces the balance between amenity, health and biodiversity against risk posed by trees, however it is unlikely to change the courts’ approach to claims from falling trees and applies to civil claims and not criminal prosecutions.
This is the person who has control of the tree’s management whether as owner. Lessee, licensee or occupier of the land on which the trees stands. The relevant highway authority is responsible for trees on land forming part of the highway.
The Person to Whom the Duty is Owed
This is any person who has been injured by a fall of a tree or branch. Those using highways, footways, public footpaths, bridleways, railways and canals are likely to come within striking distance of trees on adjacent land. In public spaces/semi-public spaces such as churchyards, school grounds those visiting, working or passing are expected to come within the trees’ vicinity. On private land, visitors and employees can be expected to come within the vicinity of trees. Trespassers too are expected to be within the trees’ vicinity.
The Duty Owed
In general, this is the duty to take reasonable care for the safety of those who may come within the vicinity of trees.
Courts have defined reasonable care as the standard of care is that of “the reasonable and prudent landowner”. The tree owner is not expected to guarantee the tree is safe but must take reasonable care such as could be expected of the reasonable and prudent landowner.
The highway authority has a potential liability for fallen trees and branches for which it is responsible of section 41(1) of the Highways Act 1980.
In summary, it is the duty holder’s fundamental responsibility to take reasonable care as a reasonable and prudent landowner, to consider the risk posed by trees. The amenity value of trees and the cost of different types of inspection and remedial measures become relevant.
A landowner must identify those trees which might pose a risk to people or property. A tree should be inspected for defects and potential hazards. If the landowner does not have sufficient knowledge to determine so he/she must engage someone who has. Once defects have been recorded appropriate action and monitoring must ensue.
National Tree Safety Group – Common Sense Risk Management of Trees
Lanta Awards – Professional Tree Inspection Workbook
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