Can’t see the wood for the trees? What you need to do to limit your liability for tree and branch falls on your premises.

On 23rd September 2012, a leisurely Sunday stroll in Kew Gardens turned to tragedy when Erena Wilson, a 31 old year lady from New Zealand, was struck by a falling branch of a Lebanese cedar tree. West London Coroner’s Court heard that Ms Wilson died instantly. The Health and Safety Executive (“HSE”) launched an investigation.

This follows a decision by Pembrokeshire County Council earlier this year to prosecute TV presenter turned wildlife park owner Anna Ryder Richardson and her wildlife park. The prosecution is for alleged breaches of health and safety legislation following a branch falling and striking a mother and young son, causing serious injuries, at Manor House Wildlife Park in West Wales.

Although rare (the HSE states there is a 1 in 20 million chance of being injured by a falling branch), there are on average 6 such deaths a year.

Whilst the risk of a falling branch is clearly low, employers are under a duty to protect those who may be exposed to risk. Under sections 2(1) and 3(1) of the Health and Safety at Work etc. Act 1974 employers are under a duty to ensure, so far as is reasonably practicable, that employees and non-employees are not exposed to risk. Failure to comply with this duty can lead to a criminal prosecution, as a result of which significant fines could be imposed (as well as prison sentences for individuals).

But what do employers have to do to defend prosecutions? Unreasonably onerous measures to reduce the risk from falling branches could impose an unmanageable burden on any ‘employer’ which has a tree on land for which they are responsible.

Sensibly the HSE has stated that “doing all that is reasonably practicable does not mean that all trees have to be individually examined on a regular basis”. It continued, “…given the large number of trees in public spaces across the country, control measures that involves inspecting and recording every tree would appear to be grossly disproportionate to the risk”. Further, it has said that “a decision has to be taken on what is reasonable in the circumstances and this will include consideration of the risk to which people may be exposed”*.

The HSE acknowledged that people are prepared to accept a small degree of risk of death or serious injury because of the aesthetic value of trees. The duty therefore clearly requires an assessment of the risk.

The National Tree Safety Group (“NTSG”) has stated that this risk is tolerable when the following conditions are met:

  1. The likelihood is extremely low;
  2. The hazards are clear to users;
  3. There are obvious benefits;
  4. Further reducing risks would remove the benefits; and
  5. There are no reasonably practicable ways to manage the risks**.

What is reasonably practicable will always be specific to a particular set of circumstances. Therefore, it is not possible to set out a precise list of what one would have to do to ensure compliance with their duty without over burdening themselves.

The case of Bowen and other v the National Trust*** goes some way to clarify the issue. This was a  civil case seeking compensation for the families of children killed or injured by a falling branch at a National Trust premises. A detailed examination of the Trust’s policies and procedures for tree safety management was undertaken. The claimants alleged flaws in the recorded tree inspections insofar as growth flares on the branch should have been seen as an indicator of potential failure and ought to have led to a more detailed inspection. The Trust argued that such growth is common and not necessarily an indicator of imminent failure. Further it was established that the tree was located in a medium usage zone, and had been inspected twice in the six months prior to the accident; once during a routine inspection and secondly after high winds. The Trust’s tree inspector assessed the risks posed by the tree and concluded no further action was required. The police, local council and HSE all investigated the matter and determined that there was no need for any enforcement action.

Concluding that there was no negligence, the High Court judge in the case, Mr Justice Mackay, stated that if “the bare possibility of a failure of a tree branch in a medium risk zone is enough to trigger tagging and remedial works, the bar would be set at an unreasonably low level in [his] view. It would substitute for an exercise in risk assessment taking condition and location into account, which is what the inspectors here were engaged on”.

So what standard must employers with trees satisfy?

An overall assessment of risks from trees, particularly identifying groups of trees by their position and degree of public access is certainly deemed reasonably practicable and necessary. This will enable the risk associated with tree stocks to be prioritised, and help identify any checks and inspections needed. A major factor that is likely to impact on the appropriate level of inspection and action will be public access to the trees and surrounding areas.

Trees in popular public parks are therefore required to be risk assessed and a system of inspection to be implemented. However, the duty would appear to only require remedial action to be taken if there is a relatively plain defect in the tree structure and there is a real likelihood of the branch falling. Those responsible for such trees, who do not undertake such steps, leave themselves vulnerable to criminal and civil liability should the rare but serious risk of a branch falling eventuate.

Whether Kew Gardens or Anna Ryder Richardson will be successfully sued and / or prosecuted as a result of the branch falls on their premises will largely depend on the procedures they had in place to deal with such risks.

If you feel your business might be affected by similar issues, it might be worth considering what assessments you’ve undertaken to ensure there’s little risk arising from your premises.