As the recent devastating impact of Storm Babet has shown, this is the time of year when the weather creates significant risk to the trees and forests of Scotland's rural landscape. Falling trees present a serious risk to transport and energy infrastructure and, of course, to the public. Duties placed on employers in relation to health and safety are far reaching and as Scotland deals with the consequences of Storm Babet and prepares for the next period of extreme weather it is important to remember that all employers are under a legal duty to protect the public, so far as reasonably practicable, from harm caused by trees falling onto or from their property.
Sections 2 and 3 of the Health and Safety at Work etc. Act 1974 impose key general duties on employers. Section 2 places a duty on every employer to ensure, so far as is reasonably practicable, the safety of their employees and Section 3 requires them to ensure, so far as is reasonably practicable, that the public are not exposed to risks to their health and safety. Those general duties mean that all employers must take all reasonably practicable steps to protect their employees and members of the public from the risk of falling, or fallen, trees.
Sadly, there are many examples of catastrophic injuries being caused by falling trees which result in prosecutions for breaches of health and safety law.
On 25 September 2020 a six-year old girl was killed while playing in her school playground, after she was struck by a falling tree. Newcastle City Council pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc. Act 1974 and received a fine of £280 000. The HSE concluded that Newcastle City Council had failed to conduct appropriate investigations into the extent of decay in the tree and had also failed to inform the school of the tree's presence or condition.
Subsequently, in Southampton on 8 July 2021 an eight-year old girl suffered life-changing injuries, including a leg amputation, after a lime tree fell on her whilst she was jogging with her father on the pavement outside the entrance to a care home. BUPA Care Homes plead guilty under Section 3(1) of the Health and Safety at Work Act etc. 1974 and received a fine of £400 000. The incident was described by the HSE as a "wholly avoidable accident" and it was determined that BUPA had failed to implement a suitable tree management strategy, which should have included an adequate risk assessment, proactive surveys, continued inspections, and the overall monitoring of trees which could have prevented the tree falling. BUPA had also failed to provide appropriate training and instruction concerning the management of trees.
In order to better understand this duty in the context of tree management, the HSE has produced guidance for HSE Inspectors that is aimed specifically at Section 3 duties. This guidance confirms that what is reasonably practicable in relation to the management and monitoring of trees will depend on the particular circumstances and the potential risk each tree causes. Although the HSE considers the average risk of trees falling to be low, the harm caused if it happens can be severe and potentially fatal. The HSE is therefore clear reasonably practicable measures should be taken.
Because the risk is considered low, although undoubtedly higher during periods of extreme weather, the HSE does not consider it to be proportionate to inspect and record every tree in an area. Instead, zoning methods can be used to identify trees at risk of causing harm. The HSE suggests a minimum of two zones: (1) trees frequently accessed by the public on a daily basis and (2) trees with no frequent public access. This prevents the need for every individual tree to be recorded. Trees frequented by the public should have periodic and proactive checks for any obvious signs of defect or instability. These checks should be carried out by an individual who has been appropriately trained on what to look out for.
Individual tree inspection is only necessary in circumstances where (1) the tree is in a location frequently visited by the public or in an area which poses an obvious risk to adjacent infrastructure; (2) the tree has been identified as being in a condition that is likely to make it unstable and (3) a decision has been made to retain the tree.
Aside from zoning, the HSE also recommends that employers should have systems in place to enable the reporting of tree damage, should have access to specialist assistance and have clear procedures in place for added protection in cases of high wind or other extreme weather likely to increase the risk of falling trees.
As storms like Storm Babet look set to become more common in Scotland, it is clear that duty on employers to protect against the risk caused by falling trees is going to come into increasingly sharp focus.
In most instances this duty can be met by ensuring adequate tree management systems are in place and that they are properly applied and monitored. They should be regularly reviewed to ensure that they remain suitable and reflect current best practice. In periods of extreme weather, more proactive steps will be necessary, particularly where trees present a risk to energy or transport infrastructure or to homes or public buildings.
If you require any further information on this topic, please contact Malcolm Gunnyeon or your usual Brodies contact.