Tree Inspection - Who, What, When, Where, Why and How!

Three recent court cases have underlined the need for landowners to inspect their trees. The cases provide differing guidance as to the type of inspection to be undertaken, the level of competence required of the tree inspector and the frequency of inspections. 

 

Poll v Bartholomew (Viscount Asquith of Morley) May 2006

The Claimant Mr. Poll was riding a motorcycle when he collided with a fallen ash tree.

The ash tree was a multi-stemmed specimen with a significant structural defect and with a fungal bracket present.

Mr. Poll claimed for damages for personal injuries and consequential losses arising out of the accident.

The Defendants were the owners of the land from which the tree fell, and were responsible for the maintenance of the tree.

The High Court judgment accepted the following definition:

The arboricultural experts involved proposed and the court accepted that there are 3 levels of inspection; namely,

  • Generalist or Level 1 - an individual 'with no specialist tree knowledge'.
  • Competent or Level 2 – an individual 'who has sufficient training, expertise and/or qualifications to identify tree hazards, assess the levels of risk and make appropriate management recommendations'.
  • Expert or Level 3 – an individual 'with the highest skills and knowledge'.

The experts agreed that the job did not demand the highest skills and knowledge of a level 3 expert, but it required more than a level 1 inspector and that the forestry contractor, who undertook a survey on behalf of the defendant 'was, in fact, a level one inspector'.

The High Court judgment contained the following ruling:

The Defendants owed a duty of care. That duty was to carry out inspections of trees upon the land to identify any potential hazard.
There was a particular need to inspect trees alongside the highway. The inspection was to be carried out by a competent inspector. A competent inspector, looking at this multi-stemmed ash, would and should have appreciated that it posed a potential risk.
The Defendants had an obligation to inspect trees alongside the highway, and the standard of that inspection was to be a 'Competent, or level two inspection'. An inspector undertaking such an inspection would have appreciated that a multi-stemmed tree was particularly prone to structural defect.
The Court found in favour of the Claimant.

Summary

Landowners owe a duty of care. That duty is to carry out inspections of trees upon their land to identify any potential hazard.

The standard of the inspection should be competent or a level two inspection.

 

Chapman v London Borough of Barking & Dagenham 1998

The claimant Mr. Chapman was driving his van along Lodge Avenue in the London borough of Barking and Dagenham when a part of a Horse Chestnut tree failed and landed on the cab of his van.

Mr. Chapman was severely injured and remains a paraplegic as a result of the accident.

Mr. Chapman claimed for damages for personal injuries and consequential losses arising out of the accident.

The initial judgment found in favour of Mr. Chapman. The London Borough of Barking and Dagenham appealed against the decision.

The Appeal Court judgment contained the following ruling:

A person is liable for a nuisance constituted by the state of his property, if:

  • By neglect of some duty, he allowed the nuisance to arise.
  • He omits to remedy it within a reasonable time after he did or ought to have become aware of it.

The Appeal Court judgment also contained the following statements:

  • While it is common ground that it was the defendants' duty regularly to inspect road-side trees, they had not attempted to carry out that duty.
  • They were reactive, responding to complaints, but not pro-active.
  • The tree was diseased and had been for a long time.
  • A clear duty on the defendants to conduct 'systematic expert inspection' of the trees in or close to their highways.
  • There had been no 'full' inspection of the trees in Lodge Avenue between the Great Gale of October 1987 and the accident (three years), and there should have been at least one.

The appeal was dismissed and damages were awarded.

Summary

Landowners owe a duty of care. That duty is to carry out inspections of trees upon their land to identify any potential hazard.

Landowners have a duty to conduct 'systematic expert inspection' of trees in or close to the highway.

The judgment provides guidance on the frequency of tree inspections i.e. not more than 3 years apart.

 

Albert Atkins v Sir James Scott, Bt August 2008

The claimant, Mr. Atkins, was driving along the A32 in Hampshire when his car was struck by part of a branch from an oak tree.

Mr. Atkins was injured in the accident.

The branch failure was due to internal decay. Neither the tree nor the branch exhibited any external signs of decay before the branch fell.

Mr. Atkins claimed for damages for personal injuries and consequential losses arising out of the accident.

The defendant, Sir James Scott, owned the estate where the tree was located.

The County Court judgment contained the following:

The defendant, as a landowner of property fronting a public highway, owes a duty of care to those passing along the road, to take reasonable care for their safety. The defendant is expected to act as a reasonable and prudent landowner.

The defendant stated that 'there was no formal or written system for inspecting trees on the estate or for recording what trees had been inspected'.

The Judge accepted that 'the informal system for observing the trees worked adequately in the particular circumstances that obtained on the estate'. The Judge also stated 'this informality has the obvious disadvantage that it makes it more difficult for the estate to resist claims based on an inadequate system of inspection'.

The Judge did not accept the classification method as to the required qualification and experience of tree inspectors as outlined in the case of Poll v Bartholomew, namely Level 1 and Level 2 inspectors.

The judgment quotes the following guidance issued by the Health and Safety Executive (HSE):

'For trees in a frequently visited zone, a system for periodic, proactive checks is appropriate. This should involve a quick visual check for obvious signs that a tree is likely to be unstable and be carried out by a person with a working knowledge of trees and their defects, but who need not be an arboricultural specialist. Informing staff who work in parks or highways as to what to look for would normally suffice'.

The judgment also noted that the HSE make no reference as to the frequency of inspections.

The Court found in favour of the defendant.

Summary

Landowners owe a duty of care. That duty is to carry out inspections of trees upon their land to identify any potential hazard.

Inspections do not necessarily need to be carried out by an arboricultural specialist.

An informal system for inspecting trees may be adequate in some circumstances.

 

A Layman's Point of View

From my point of view, the three cases all underline the landowners' responsibility to inspect their trees, however, the level of competency of the inspector and the frequency of inspection required to satisfy a landowner's duty of care is not defined. It appears there is no such thing as one size fits all and every case in judged on its own merits.

It is worth noting the judge's comments in Atkins v Scott with respect to an informal system for inspecting trees, 'informality has the obvious disadvantage that it makes it more difficult for the estate to resist claims based on an inadequate system of inspection'.

For specific advice, with respect to the law, please seek qualified legal opinion. For general advice please contact us.