MOST FARMERS are familiar with the concept of risk assessment, but how many include looking at the state of their trees in that exercise?
Failure to carry out a risk assessment of work activities can lead to prosecution by the HSE, and while the farm’s insurance may cover the legal costs, it would not cover the cost of any resulting fine.
“On top of this, under civil law a duty of care is owed to others (including members of the public) by owners and managers of land to foresee and prevent damage that may be caused by hazards that are present on the land. The real test is whether the owner or manager acted reasonably in the circumstances leading up to the incident or accident,” says David Knowles, ADAS health and safety manager.
If things go wrong, landowners and managers may be pursued in the civil courts and if found negligent in their duty of care can be ordered to pay compensation and costs resulting from the action, which may be covered by public liability insurance. “Trees do fall without warning in some cases. Courts will be looking for whether a system is in place to assess the risk from trees; they will also seek to establish whether the system was being properly adhered to. Scheduling surveys and tree maintenance work, keeping records and applying sound management decisions can also act to reduce liability,” says ADAS forestry specialist Adam Hollis.
In most cases, only a visual assessment of trees is necessary to check for obvious hazards such as damaged parts or visible rot, says Mr Hollis. He suggests farmers and landowners should begin with a walkover survey to check that maps showing trees and woodland are correct, identify broadly the species and ages of trees and any obvious hazards.
Most owners and managers could undertake this themselves, but it would pay them to have a basic level of training such as a short course or even reading a basic book on tree hazards, he suggests.
After that, they have to assess their level of risk and exposure in terms of liability. This means taking into account the state of their trees, the nature of any obvious hazards, the degree of public access, if any, but bearing in mind that their liability extends also to trespassers.
At this point some will need to call in a professional tree specialist either for advice or to do remedial work which the survey has identified. “Beware of getting a job done on the cheap,” warns Mr Hollis. “If it is done badly, the hazard can be increased and there may be an unacceptable, or even illegal, environmental impact such as disturbing the habitat of a protected species. You have a duty of care to the environment as well.”
Professional tree work is not cheap, admits Mr Hollis, but he points out that the cost can be offset by sale or use of the firewood or timber it provides. A qualified adviser may also be able to identify grant opportunities for some types of work, such as restoration of significant trees or landscape features. A big cause of accidents and expensive liability claims are trees which have fallen into roads from farmers’ fields, confirms Sid Gibson, underwriting manager at NFU Mutual. “Some of the largest claims we have ever settled have been caused by trees falling across roads and causing serious accidents.”
Trees normally belong to the land on which they stand and will usually be the responsibility of the owner. Most tenancy agreements reserve the right to woodland to the landlord.
Each tenant must look at their own agreement, but it is the exception rather than the rule if tenants have the responsibility for trees, says George Dunn of the Tenant Farmers’ Association.
“Nevertheless, the tenant would be advised to check the condition of the trees and report dead or dangerous trees to the landlord or his agent.” The tenant must also not act recklessly to damage the tree or make it hazardous.
The position of the trunk determines ownership of a tree, which may be shared if the tree sits on a boundary. Liability applies to the roots and branches of a tree where they cross a boundary and cause damage.