In fiction, from Lord of the Rings to Harry Potter and The Wizard of Oz, trees are well recognised as sources of danger and even in real life they can be a worry for landowners. After the east of the UK was recently battered by Storm Arwen and Storm Barra, those worries may be more pronounced.

Forestry and Land Scotland is urging the public to stay away from forests and, south of the border, Forestry England made the same plea. It seems that forests and hillsides 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?

How big a problem are trees?

First of all, it is important to note that trees are not actually very dangerous when compared to other risks faced in daily life. The HSE estimates that between five and six people are killed each year when trees or branches fall on them, that can be compared with the 1,700, on average, people who are killed each year on the roads. In fact, the HSE considers the risk from trees to be so low that it is "broadly acceptable" and will not always require action to comply with Health & Safety duties and avoid criminal prosecution.

Trees, of course, also bring huge benefits to the environment and to the economy. The current approach to tree management recognises these factors and seeks to avoid an overly risk averse regime.

However, trees do have potential to cause significant harm if they fall on people or vehicles and so there will be occasions where action is required to manage the risk of people being harmed. If that action is not taken there could be liability if someone is injured. In addition, where, as is the case at present, you know that trees may well be damaged and precarious, more care is needed to ensure that you are meeting your duties.

How do I work out what I need to do?

The risk from trees will vary. If the trees are located over a large area, it is sensible to divide the land into zones and to allocate a risk rating depending on the likelihood of someone being injured by a tree failure in that zone. At one end of the spectrum would be a tree in the middle of a rarely visited forest and, at the other, a tree overhanging a well-used pedestrian route.

The frequency and nature of the inspection will also be determined by factors specific to the actual tree, such as species, size, life stage and condition. In determining what the inspection regime should be, guidance should be sought from someone qualified in tree maintenance.

An annual detailed inspection may be required for trees in the highest risk category, whereas only informal infrequent observations will be adequate 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 that the best regime possible on the available funds had been implemented.

Overall, it is important to bear in mind that there is no obligation to render trees absolutely safe and it is recognised that promoting such an approach would lead to the loss of or damage to valuable trees.

Outside of the inspection regime, the need for inspection can be triggered by events, such as the extreme weather we recently experienced. Where you know that damage is likely to have been caused, inspections should be carried out and reasonable action taken to make the trees as safe as possible.

What happens if someone makes claim?

There is no obligation on owners or occupiers to guarantee that trees are safe. What is reasonable care will depend on the specific circumstances, including your financial means. If you can demonstrate that you have assessed the risk posed by trees on your land and have devised and implemented a reasonable policy for managing that risk, you should be in a good position to defend a claim.

As with any claim situation, having good records, of inspections, maintenance and decision making is key and can be crucial to proving that you have not been negligent.

Contributors

Kate Donachie

Legal Director

Emma Dyson

Associate