Maintenance key in assessing risk of falling trees - Kate Donachie

The recent impact of Storm Arwen and Storm Barra highlights the damage falling trees can cause, and the danger they can pose to the public.

Kate Donachie is a managing associate, Brodies LLP

Both Forestry and Land Scotland and Forestry England have urged the public to stay away from forests and some areas could remain unsafe for several months as the clear-up takes place. Where does this leave smaller private landowners and what should be done, if anything, to prevent injury from falling trees?

Statistically, trees are not considered very dangerous compared to other risks. The Health and Safety Executive estimates five to six people are killed each year when trees or branches fall on them, in comparison to the 1700, on average, killed annually on the roads. In fact, the HSE considers the risk from trees to be so low that it is "broadly acceptable" and won’t always require landowners to take action to comply with health and safety duties and avoid criminal prosecution.

The considerable benefits that trees bring to the environment and economy also play a role in the approach to tree management.

However, trees do have potential to cause significant harm if they fall on people or vehicles, so there will be occasions where action is required to manage risk. If that action is not taken there could be liability if someone is injured. In addition, and particularly relevant after recent storms, if a landowner knows trees may be damaged and precarious, more care is needed to ensure duties are met.

The risk from trees will vary. If they are located over a large area, it is sensible to divide the land into zones and allocate risk ratings. At one end of the spectrum would be a tree in the middle of a rarely-visited forest; at the other, a tree overhanging a well-used pedestrian route.

The frequency and nature of inspection required will also be determined by specific factors, such as tree species, size, life stage and condition. In determining what that inspection regime should be, guidance should be sought from tree maintenance experts.

An annual detailed inspection may be required for trees in the highest risk category, with informal infrequent observations for trees in the most remote areas. The financial means of the owner or occupier can also be taken into account, but it would have to be demonstrated that inspections had been considered and ruled out on the basis of prohibitive cost and the best regime possible on the available funds had been implemented.

Outside standard practice and protocol, the need for inspection can be triggered by events, like the extreme recent weather. Where damage is likely to have been caused, inspections should be carried out and reasonable action taken to make trees as safe as possible.

If a claim is raised, it's worth remembering there is no obligation on landowners or occupiers to guarantee that trees are safe. What is reasonable care will depend on specific circumstances, including the landowner's financial means. For anyone defending a claim, the key to being in a strong position lies in demonstrating that the risk posed by trees on land has been assessed and a reasonable policy for managing that risk devised and implemented.

As with any claim situation, having good records of inspections, maintenance and decision-making is key and can be crucial to proving non-negligence.

Kate Donachie is a managing associate, Brodies LLP