A recent High Court decision (*Stagecoach South Western Trains Limited v Hind & Steel (2014)) has confirmed that, as far as the issue of civil liability is concerned, if an individual landowner regularly informally assesses the health of the trees on his/her land then generally that should be sufficient.

However, if obvious signs of issues are detected at such an informal assessment and/or the landowner is not at all knowledgeable about trees then the expectation would be for the landowner to instruct an appropriate tree expert. For larger areas of land, such as large farms or country estates, the owner would more likely be an organisation such as a limited company or a group of trustees in which case it would normally be expected that in-house or externally contracted experts would be engaged in this activity.

Notwithstanding the above decision it must be remembered, especially following an incident, that Regulators could come to a different conclusion in that different criminal law tests will be used by them. Clearly if personal injury or fatality results from a falling tree or branch then it is far more likely that the HSE and/or the Police will become involved. A resulting fatality could lead to a charge under the Corporate Manslaughter Act or under the common law for gross negligence manslaughter and following a personal injury incident there could well be charges brought under health and safety legislation.

And don’t forget…- the test that is usually applicable under health and safety legislation is one of "reasonable practicability" with the onus of proving this being on you, the prospective defendant! This means that you would need to prove that it was not reasonably practicable for you to have done more than in fact you had done…..a test which in practice can be very difficult, if not impossible, to prove.

The messages are therefore clear. If you are a landowner with trees (especially those that overhang areas that are accessible by members of the public) then it is essential to carry out regular checks and to act promptly upon any concerns. We would strongly advise that even informal checks are documented. Pay as much attention to your trees as you possibly can because if you are unfortunate enough to have a tree or branch come down which causes injury or death then whilst you (or your liability insurers) may be able to prove that you should not be liable to pay compensation that is not to say that you or your organisation will not still face criminal prosecution by the Regulator, in which case you will need as much hard evidence as possible to demonstrate you took all appropriate steps.

There is free pragmatic advice available to assist with tree related risk assessments on the Forestry Commission’s website