Owners’ Legal Responsibilities

The tree owner (or any party who has control over the trees management), owes a duty of care to take reasonable steps to avoid foreseeable risk of injury to visitors and trespassers on their land. If a visitor or trespasser is injured by a falling/fallen tree or branch, and was on the land at time of injury, the tree owner may be negligent if they have not taken reasonable care to ensure the visitor or trespasser will be reasonably safe.

Section 3 places a duty on every employer to conduct his undertaking in such a way, so far as is reasonably practicable, that employees and persons not in his employment (e.g. members of the public), are not exposed to risks to their health or safety. Therefore an employer must address the practical and proportionate precautions to reduce the risk posed by trees, otherwise criminal prosecution may be pursued by the HSE.

Section 3 requires employers (and self-employed persons) to undertake an assessment of the risk posed to employees and members of the public, which must be recorded for five or more employees. This includes an assessment of tree stock on all land connected with their work undertaking.

Section 1 states that when a court is considering a claim of negligence or failure to meet the duty of care, the court must have regard to whether a requirement to take those steps might prevent an activity which is desirable from taking place, i.e. the Act reinforces the importance of being able to balance the values of tree (e.g. amenity, biodiversity etc), against the risk posed by the tree. However, the defendant may be liable to pay compensation if appropriate steps have not been taken to meet a standard of care

Section 2(1) entitles a person to access land for the purpose of open-air recreation (right to roam). However, in doing so, that person must accept a higher level of risk to themselves, so that an undue burden is not placed upon the landowner.

Under section 154, a Highways Authority has the power to require within 14 days, trees growing on land adjacent to the highway that are dead, diseased, damaged or insecurely rooted, to be pruned or removed by the owner or occupier of the land. In default of compliance within the specified period, the Highways Authority may carry out the work and recover the expenses reasonably incurred by them in doing so.

A Code of Practice 2016: Paragraph B.5.4.4 advises that when undertaking inspections of highways trees, inspectors shall incorporate trees outside of the boundary, but within falling distance of the highway (so far as can reasonably be seen without trespassing). The document goes on to advise that basic arboricultural training is appropriate for inspectors, however, arboricultural specialists shall advise on the frequency of inspection and remedial works.

This case had nothing to do with trees. However, it was held at the appeal that, if a person brings or keeps anything on his land that should later escape and is a cause of damage to neighbouring properties, the owner is responsible for its effects, no matter how careful he has been to retain that item.

This famous case relates to a snail that was found by a consumer in a bottle of beer. The outcome of the case set the precedent that tree owners owe a duty to take reasonable care to avoid injury or harm to others. A tree owner could therefore be found negligent if they fail to take sufficient care of their tree, if; it was foreseeable that someone may be harmed; if the person harmed was in close proximity; and it was reasonable for them to owe that duty.

This case related to flooding causing substantial damage to a neighbouring property to the defendant. The defendant neglected to take simple steps to abate the flood risk (i.e. placing a culvert grid in the proper place). The House of Lords held that an occupier of land is negligent if they fail to take reasonable measures to bring a nuisance to an end, within a reasonable time.

An elm tree with a cavity and decay in it base blew over during high winds, killing the driver of a vehicle. It was found that the large cavity would have been easily observable through a visual inspection, and if an inspection had been undertaken, remedial measures could have been applied which would have prevented the incident.

This case highlighted that a reasonable and prudent landowner can be expected to have some degree of knowledge and experience of their trees; the level of which is to a greater level than the ordinary observer but falling short of that of an arboriculturist. As the elm tree that failed appeared to be sound and healthy to the landowner, there was no reason to involve an arboriculturist, and were therefore not liable. However, in certain circumstances, the landowner shall arrange for fuller inspections by an arboriculturist, e.g. when their informal inspection reveals a problem, or due to lack of knowledge or capacity to undertake the inspections.

This case was not specifically concerned with trees. However, it highlighted the principle that it is the tree owner’s obligation to only do what is reasonable in the circumstances. What is reasonable is dependent on the funds and resources available, plus the physical capacity of the owner and practicality of remedies at their means.

This case highlighted that a tree owner has a duty to act when a danger becomes apparent. The judge stated that “If there is a danger which is apparent, not only to the expert but to the ordinary layman which the ordinary layman can see with his own eyes, if he chooses to use them, and he fails to do so, with the result that injury is inflicted, as in this case, upon somebody passing along the highroad, the owner is in those circumstances responsible, because in the management of his property he had not acted as a normal reasonable landowner would act”.

A branch failed from a tree causing injury to a passer-by. Although the branch had failed through decay developing within a crack, this defect could not have been observed form the ground. This set a precedent that land owners are not expected to become an ‘insurer of nature’, i.e.’ they can only be liable if they fail to remedy a danger within a reasonable amount of time of it appearing.

This important court precedent revolved around whether it was ‘reasonably practicable’ to prevent even the smallest possibility of rock fall in a coal mine. It was decided that the level of risk shall be weighed against the trouble, time and money needed to control it. Therefore it is not necessary to manage risk to the point where it is eliminated, but to the point of where the cost of additional controls would exceed the benefits.

This case revolves around the claimant diving into a lake and breaking his neck on the bottom, despite prominent warning signs prohibiting swimming. As there was nothing inherently dangerous about the state of the premises, it was found that the council had no liability to the claimant. The risk arose through the claimant’s own actions, for which they must therefore accept responsibility.

In this case it was held that the owner of a tree standing in a remote location where no public access could reasonably have been foreseen, was not liable for the death of a person which resulted from the tree’s collapse.

A stem from a multi-stemmed ash tree failed across a highway causing injuries to the claimant. The tree was under an informal drive-by inspection regime by a forestry contractor. The court decided that this level of knowledge and standard of inspection was not sufficient, and if the tree had been inspected by a competent person, they would have seen the potential for included bark at the stem unions and undertaken a closer inspection (which would have revealed a fungal bracket at the tree base).

The Coroner’s Report identified concerning issues relating to methods of tree inspection undertaken by the Highways Inspectors. The coroner went on to highlight the need for; better training for the inspectors; that they shall drive at an appropriate speed to maximise the chances of identifying tree hazards; and limit their inspections to purely trees (i.e. not including potholes, road signs etc). The coroner also highlighted the need for better guidance to be produced relating to appropriate systems of highways inspection.

A branch failed from a tree owned by the National Trust, killing one child and injuring three others while they were sheltering from the rain. The judge found the National Trust had not been negligent as they had a reasonable system of tree inspection in place, the inspectors had exercised appropriate care, and the tree inspectors had received adequate training and instruction.

A large branch covered in ivy fell from an oak tree, killing Mr Imison. The oak tree was not part of a formal inspection regime, despite it being located next to a public highway. It was found that the decay in the branch (the cause of failure) would not have been discoverable from a ground-based survey, therefore liability could not be placed on the duty holder. However, landowners shall carry out preliminary or informal inspections on a regular basis.

A mature lime tree fell across a highway (due to severe decay of its root system and high winds) hitting a vehicle and causing severe injuries to the driver. The tree had a bracket of Ganoderma spp. fungus at its base, on the opposite side of the road. The tree was under a three-yearly inspection frequency, however, the judge found this to be inadequate, and a reasonable frequency should have been every two years.

The judge found that the tree owner’s duty extended no further than carrying out periodic informal or preliminary observations/inspections of her tree. As the tree appeared healthy, and there was nothing to alert her that a closer examination was required by a professional arboriculturist (despite an unknown weak union and stem decay concealed beneath dense ivy growth), the tree owner was not found negligent in breach of her duty of care. This also applied to the tree contractor who was purely contracted to remove dead wood from the tree, not carry out wide-ranging inspections and investigations so as to discover if there is an obvious defect.